Sayabath v Willowdale Nominees Pty Ltd, Williams, Cooper, Notley
[2023] FedCFamC2G 104
Federal Circuit and Family Court of Australia
(DIVISION 2)
Sayabath v Willowdale Nominees Pty Ltd, Williams, Cooper, Notley [2023] FedCFamC2G 104
File number(s): SYG 1085 of 2022 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 17 February 2023 Catchwords: INDUSTRIAL LAW – Practice and procedure – application by employer for summary judgment of claim that the employer contravened s 340(1) and s 351(1) of the Fair Work Act 2009 (Cth) by terminating the applicant’s employment for proscribed reasons – whether it is not reasonably arguable that employer terminated applicant’s employment – whether it is not reasonably arguable that the employer took adverse action other than by terminating the applicant’s employment – judgment for employer and other respondents. Legislation: Fair Work Act 2009 (Cth) ss 12, 340(1), 342, 343, 351(1), 360, 386
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 143
Federal Court of Australia Act 1976 (Cth) s 31A
Industrial Relations Act 1988 (Cth) ss 170CA, 170EA
Workplace Relations Act 1996 (Cth) s 298K(1)
Industrial Relations Act 1991 (NSW) s 245
Cases cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41
Amalgamated Collieries of W.A Ltd v True (1938) 59 CLR 417
Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435; [1946] HCA 25
Building Workers’ Industrial Union of Australia v Odco Pty Ltd (1991) 29 FCR 104
Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941
Byrne v Australian Airlines Ltd [1995] HCA 24
Childs v Metropolitan Transport Trust [1981] FCA 200; (1981) 29 AILR 24
Commonwealth Bank of Australia v Finance Sector Union of Australia (2007) 157 FCR 329
Community and Public Sector Union v Telstra Corporation Ltd (2001) 107 FCR 93
Cook v CFP Management Pty Ltd (2006) 152 IR 358
Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40
Esso Australia Pty Ltd v The Australian Workers' Union; The Australian Workers' Union v Esso Australia Pty Ltd [2017] HCA 54
Fair Work Ombudsman v Austrend International Pty Ltd [2018] FCA 171
Humberstone v Northern Timber Mills (1949) 79 CLR 389
Lister v Romford Ice and Cold Storage Co Ltd [1957] AC 555
Maritime Union of Australia & Ors v Geraldton Port Authority & Ors (1999) 165 ALR 67
Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200
Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473
Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association [2012] FCAFC 63
Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2001] FCA 456
Smith v Director-General School Education (1993) 31 NSWLR 349
Union Pacific Railroad Company v Public Service Commission 248 US 67 (1918)
Division: Fair Work Number of paragraphs: 89 Date of hearing: 13 October 2022 Place: Sydney Counsel for the Applicant: Mr L Saunders Solicitor for the Applicant: Danny King Legal Counsel for the Respondents: Mr S McIntosh Solicitor for the Respondents: StevensVuaran Lawyers ORDERS
SYG 1085 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JANE SAYABATH
Applicant
AND: WILLOWDALE NOMINEES PTY LIMITED, PAUL WILLIAMS, CAROLYN COOPER, SAM NOTLEY
Respondents
order made by:
JUDGE MANOUSARIDIS
DATE OF ORDER:
17 February 2023
THE COURT ORDERS THAT:
1.There be judgment for the respondents pursuant to s 143(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
2.The parties have liberty to apply by 17 March 2023 for any order in relation to costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
introduction
The respondents apply under s 143(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFC Act) for an order that the application for relief under the Fair Work Act 2009 (Cth) (FW Act) the applicant, Ms Sayabath, filed be dismissed.
To be in a positon to consider the grounds on which the respondents make their application, it will be necessary to set out the claims Ms Sayabath makes in the Form 2 she filed with the application on 28 July 2022 by which she commenced this proceeding. It will also be necessary to set out some of the evidence.
For ease of expression I will state facts Ms Sayabath alleges in her Form 2 without qualification, on the understanding that the facts I state are alleged facts.
alleged facts and some evidence
Employment contract
Ms Sayabath commenced employment with the first named respondent (Willowdale) on 13 September 2021 in the position of “Human Resource Manager”.[1] Ms Sayabath did so under the terms of a contract contained in a letter dated 25 August 2021 from Willowdale to Ms Sayabath titled “Part-time Employment Contract”.[2] The contract included the following terms:
(a)Ms Sayabath was employed on a “permanent part-time basis in the position of Human Resource Manager”; and she was to report to “The Executive Committee, or any other person directed by [Willowdale] from time to time”.
(b)Ms Sayabath’s employment was subject to an initial 6 month probationary period. During that period Willowdale was to assess the suitability of Ms Sayabath’s continuing employment, and either party could terminate Ms Sayabath’s employment by providing one week’s notice.
(c)Ms Sayabath’s ordinary hours of work were 30 hours per week. Ms Sayabath was to work these hours Monday to Thursday, between the hours of 8:30 am and 5:00 pm, with an unpaid lunch break of one hour each work day.
(d)Ms Sayabath may be entitled to parental leave in accordance with the National Employment Standards as outlined in the FW Act. The letter attached a document titled “Parental Leave Policy”. The document states that the policy it records applies to staff employed at Willowdale. It provides that an “eligible employee is entitled up to 12 months unpaid parental leave” which is associated with the birth of the child to the employee (among others).
(e)Following any probationary period that applied to Ms Sayabath’s employment, Willowdale could terminate Ms Sayabath’s employment at any time for any reason by providing the notice specified in the contract, such notice being based on Ms Sayabath’s years of continuous service.
[1] Form 2, [4]
[2] Exhibit CJC-1, page 2
Ms Sayabath participated in her first probationary meeting and was rated 4 out of 5. Her performance was generally praised, and no performance issues were raised.[3]
[3] Form 2, [11]
November 2021 – Ms Sayabath informs Mr Gream she is pregnant
In November 2021 Ms Sayabath informed Willowdale’s managing partner, Mr Gream, of her pregnancy, and that Ms Sayabath’s pregnancy was subject to complications which medical professionals had characterised as high risk. Ms Sayabath advised Mr Gream there was a high chance of medical termination up until birth, and there was a chance of a high ongoing risk to her child into the post-natal period.[4] After informing Mr Gream of these matters, Ms Sayabath and Mr Gream had numerous conversations relating to Ms Sayabath’s pregnancy, possible leave, and backfilling options. Mr Gream indicated concern, and advised Ms Sayabath Willowdale would support her.[5]
[4] Form 2, [12]
[5] Form 2, [13]
According to instructions Ms Sayabath gave to her lawyer, Ms Chandra, Mr Gream verbally advised Ms Sayabath that her request for leave would be supported; and that he had approved at least a six month “back fill” for her position “and approved Ms Kerry Green . . . as suitable”. Mr Gream asked Ms Sayabath to provide a “maternity plan”, including the time requested, and options to fill her roles.[6] Following these discussions Ms Sayabath received medical advice that her baby would require surgery after birth, and that she was scheduled for an induced birth on 23 March 2022.[7]
[6] Affidavit of S Chandra 30.09.2022, [7]
[7] Affidavit of S Chandra 30.09.2022, [8]
February 2022 – Ms Sayabath provides parental leave proposal
In January 2022 Mr Gream asked Ms Sayabath to make a formal proposal to him concerning her working arrangements leading up to and following the anticipated birth of Ms Sayabath’s child.[8] On 7 February 2022 Ms Sayabath sent the following email to Mr Gream (errors in original and emphasis added).[9]
[8] Form 2, [14]
[9] Form 2, [15]; Exhibit CJC-1, pages 19-20
As there are a lot of risks for me and baby the doctors have “scheduled” me in to have the baby on the 23rd of March . . .
As part of my maternity plan my last day would be the 17th of March. As I don’t know the recovery time of the baby, I would like to request to have 12 months off and if he is ready earlier than I can come back earlier, at least the 12 months gives me time to work in with him as there is still a lot of unknowns and alleviate a little of the stress.
Kerry has started and I believe she will be able to back fill my role while on leave. . . .
Key things we will need to discuss:
· Extending Kerry’s contract for additional 6 months (as this will cover me and if Cassie does not return at the end of the year.)
· Potentially giving her higher duties allowance, I propose to increase 10K to 120K?
· I know while I am off you are due to retire, I’d like to discuss this with you and who will be my manager when I return
· Under the parental leave policy, I know I am not technically entitled to the parental leave pay, but I was wondering if you would consider the half payment of 3 weeks like the other parents who were on leave when we implemented the policy.
· Also once we agree on the “new structure” I am happy to draft a communications and send to staff with the HR structure.
This is not urgent and can be discussed when you are back. I just wanted to jot down my points to discuss with you.
Again please let me know if you need anything.
Mr Gream was on leave from the end of January 2022 until 11 March 2022, and did not respond to Ms Sayabath’s proposal.[10]
[10] Form 2, [17]
On 23 February 2022 Ms Sayabath sent an email to Mr Gream, and to the second, third, and fourth named respondents, these being Mr Williams, Ms Cooper, and Mr Notley. That email included the email Ms Sayabath sent to Mr Gream on 7 February 2022. In her email of 23 February 2022 Ms Sayabath said as follows (errors in original and emphasis added):[11]
Phil and I had numerous discussions prior to his leave around my backfill and I believe Kerry has the skills and capabilities to backfill while I’m on leave. Phil approved us finding a 6 month back fill as it does not change the approved head count.
We have an alternative suggestion/solution to the backfill to assist with the workload and Kerry has a previous candidate who is open to working remotely, who is a skilled HR professional and has delivered high results for Kerry before, this will also be based on what HR activities are agreed upon at the retreat this week. The justification for this is that there is alot of back end BAU work that needs to get done and we can get this work done with a remote worker.
. . . .
As Phil is still on leave my final probation meeting is scheduled for the end of this month. I was wondering who I might schedule this conversation with and if Phil could provide his feedback to one of you prior to my close off meeting.
I understand we are at retreat this week but happy to schedule a meeting with you all. To discuss the details in further and then you can have further conversations without me.
I’d like to get this sorted so l can have a conversation with Kerry asap.
[11] Form 2, [18]; Exhibit CJC-1, page 19
1 March 2022 – Ms Sayabath meets with respondents
On 1 March 2022 Ms Sayabath was called into the office boardroom for an impromptu meeting with Ms Cooper, Mr Notley, and Mr Williams.[12] According to the Form 2, the following occurred:
(a)Ms Cooper, Mr Notley, and Mr Williams informed Ms Sayabath that, as her probation period had not finished, the business had decided to end her employment on the date Ms Sayabath had proposed to commence maternity leave.[13]
(b)Ms Cooper, Mr Notley, and Mr Williams did not ask Ms Sayabath to consider an alternative to leave arrangements, or make any enquiries as to the minimum period or type of leave she would require to give birth and return to work; they did not discuss Ms Sayabath’s accrued leave entitlements; and they did not discuss any alternative courses of action other than Ms Sayabath’s being required to resign from Willowdale.[14]
(c)Ms Sayabath sought clarity as to why she was being forced to resign. Ms Cooper, Mr Notley, and Mr Williams advised that Ms Sayabath was within her probationary term; and they could make their decision at any time. Ms Cooper, Mr Notley, and Mr Williams indicated that Ms Sayabath should just go off and have her babies and call them down the track, as they might offer her a job then.[15]
(d)Ms Cooper, Mr Notley, and Mr Williams said they were going to market to replace Ms Sayabath; and that this decision had been made and would not be changed.[16]
[12] Form 2, [21]
[13] Form 2, [22]
[14] Form 2, [23]-[25]
[15] Form 2, [26]-[28]
[16] Form 2, [29]-[30]
There are three items of evidence that relate to what was discussed at the meeting of 1 March 2022. First, there is what purports to be a file note of the meeting prepared by Ms Cooper, which is as follows:[17]
[17] Exhibit CJC-1, pages 21-22
Meeting was held to discuss the email sent to the Phil Gream (and forwarded to the Executive Committee) on 8 February 2022 (Subject: Janes Parental Leave discussion).
The email indicated that Jane’s maternity plan was that her last day would be 17 March and she requested to have 12 months off with the potential to come back earlier.
Our discussion initially raised concerns that the request for maternity leave was not in accordance with the NES as Jane had not been employed for more than 12 months, and that any approval of the leave would not be in accordance with our policies.
We raised concerns that the optics of approving leave for the HR Manager in contravention of our parental policy would not be appropriate.
We also indicated that the HR Manager role was a key position for the organisation and we were concerned about the rotation of personnel through this position. We accordingly had reached the conclusion that the position needed to be filled on a permanent basis, without a temporary fill for 12 months.
The meeting was not a probation review of Jane's performance. No probation review form was provided by Jane and no discussion was had in relation to her performance. The only mention of probation was from Jane herself when she indicated that if we had concerns with her performance we could terminate her before her 6 month anniversary was up. We indicated that we did not have an issue with her performance and again reinforced the importance of the HR manager role and our need for stability in this role.
When Jane asked “what does that mean”, we reiterated that her leave was not approved and one option available to her was to resign.
It was raised that should Jane decide to take some time off after the birth of her baby, we would be happy for her to contact us when she was ready to return to work to see if any positions were available in Roberts & Morrow for her.
We acknowledged that the decision was unexpected, and an offer was made to discuss the issue further the next day. Jane indicated that she did not think there was any point in that.
The second item of evidence relating to the meeting of 1 March 2022 is what Ms Cooper deposes in an affidavit she made on 14 September 2022. Ms Cooper, who is a partner in the firm of Roberts & Morrow, and a director of Willowdale, deposes as follows:[18]
[18] Affidavit of C Cooper 14.09.2022, [9]
At the meeting, a conversation to the following effect occurred:
Sam Notley: “Hi Jane, we would like to discuss your email request for leave. We are aware that the request for maternity leave is not in accordance with the NES as you have been with us for less than 12 months and so you are not entitled to maternity leave. The approval of leave would not be in accordance with our policies. We are concerned with the optics if we were to go against our policies to grant leave to the HR Manager [who is a member of the senior management team]”
Jane Sayabath: “I understand that technically I am not entitled to maternity leave but in all the organisations I have worked for it has been common practice to grant the leave.
Sam Notley: [“]We believe that this is a contravention of our parental leave policy and would not be appropriate as we have rejected leave requests in the past.”
Jane Sayabath: “I'm not sure I understand.”
Myself: “At this stage we are not approving your maternity leave request.”
Jane Sayabath: “This is not something that I have encountered in previous positions, if you have concerns with my performance you could simply terminate me before my 6 month anniversary was up.”
Myself: “That is not the issue, you have performed well and as a result this has highlighted to us that the HR Manager role is a key position for the organisation and we need stability in that role. We are concerned about the rotation of personnel through the position. We don’t need a revolving door of HR managers with Kerry in the position for 12 months as you propose. We need to have this position filled on a permanent basis.”
Jane Sayabath: “So what does that mean?”
Myself: “That is up to you, your leave has not been approved and one option available to you is to resign.”
Jane Sayabath: “I don't wish to resign.”
Sam Notley: “I understand that there are potential complications with the baby. Should you decide to take the time to go look after your babies after the birth, we would be happy for you to contact us when you are ready to return to work to see if we have any positions available.”
Myself: “We understand that this is unexpected, would you like to consider this overnight and discuss with us tomorrow.”
Jane Sayabath: “There doesn't appear to be any point in that, you have made up your minds.”
Myself: “The offer is there if you change your mind.”
The third item of evidence is Ms Sayabath’s account given through Ms Chandra:[19]
[19] Affidavit of S Chandra 30.09.2022, [12]
During that meeting, exchanges to the following effect occurred:
Notley:‘You are on the cusp of six months so we can still legally terminate you.’
Cooper:‘The HR manager role is a key position. We will be replacing your role, we’ve decided to go to market to look for a permanent replacement.’
Sayabath:‘What are you planning about recruitment?’
Cooper:‘We don’t have a plan.’
…
Sayabath:‘I’m pretty confused as I have already provided you with a solution. Kerry Green could backfill my role while I took unpaid leave, I have to birth my child.’
Cooper:‘You can resign, and let us know when you want … your end date to be.’
Sayabath:‘I don’t want to resign. It’s my substantive position and I’m confused as you just told me I have performed so well, but you’re replacing me? That doesn’t make any sense, I have other leave I could take, including carer’s leave for my son, I can even provide you with a medical certificate from the neonatal team from John Hunter to cover me. I am open to making this work and if he is ready earlier I can come back earlier. I will know more after he is born, and I am happy to have this conversation with you after I have more information, also as I have consistently discussed this with Paul Gream.’
…
Williams:‘We understand there are complications with the baby so go away and have your babies and call us when you are done to see if there are any jobs.’
…
Cooper:‘We understand that this is unexpected. Would you like to consider this overnight and discuss with us tomorrow?’
Sayabath:‘There doesn’t seem to be any point in that is there? It is clear that you have made up your minds that I no longer have a position in the company. In all my conversations with Phil he never indicated that this would happen he was always supportive.’
Cooper:The offer is still there if you change your mind.
Ms Chandra further deposes as follows:[20]
The only option presented to [Ms Sayabath] at the meeting was to resign, and to contact [Willowdale] once she no longer had carer’s responsibilities to see if any positions were available. [Ms Sayabath] understood that if she did not resign her position would be terminated, and that [Willowdale] had decided to recruit a permanent replacement for her.
[20] Affidavit of S Chandra 30.09.2022, [13]
Events after 1 March 2022 meeting
On 2 March 2022 Ms Sayabath sent an email to Ms Cooper in which she said that she “won’t be in today”, and that she had let her team know “so we will reschedule the HR strategy meeting they will . . . continue work on it”.[21] Ms Sayabath, however, enquired of her colleagues what they had been told about Ms Sayabath’s employment ending.[22] Ms Sayabath was advised that Ms Cooper had held a meeting to inform Ms Sayabath’s colleague and other members of Ms Sayabath’s team that Willowdale had ended Ms Sayabath’s employment.[23]
[21] Exhibit CJC-1, page 23
[22] Form 2, [31]
[23] Form 2, [32]
Ms Chandra, in her affidavit, deposes that the “next day”, that is, the day after the meeting of 1 March 2022, Ms Sayabath received a call from Ms McFarlane who was Willowdale’s “HR administrator”. Ms McFarlane told Ms Sayabath that Mr Williams had just called Ms McFarlane, and told her that Mr Williams had told Ms Sayabath to go and have her babies and let the business know when Ms Sayabath is done to see if there are any available positions.[24] Ms Chandra further deposes that Ms Sayabath had a conversation with Ms Green, Willowdale’s “Human Resources Business Partner”, in which Ms Green said that Ms Cooper confirmed to Ms Green that Ms Sayabath’s employment would not be continuing, and said words to the effect of “we messed up the process, but we’ve now sought legal advice so it’s all ok”.[25]
[24] Affidavit of S Chandra 30.09.2022, [14]
[25] Affidavit of S Chandra 30.09.2022, [15]
In “an attempt to clarify the events leading to her dismissal”, on 3 March 2022 Ms Sayabath wrote to Ms Cooper, Mr Notley, and Mr Williams.[26] Ms Cooper responded by email at 7:59 pm on 2 March 2022, in which she said she was “checking in to make sure” Ms Sayabath was OK, and stated that the “offer is still open if you would like to discuss yesterdays [sic] meeting”.[27]
[26] Form 2, [33]
[27] Exhibit CJC-1, page 24
Ms Sayabath made it clear she did not want to resign, and she had made enquiries relating to her maternity plan for discussion purposes only.[28] Further, Ms Sayabath sought clarification “as to why she was told she had to resign while also being told she had [not] failed at probation”.[29]
[28] Form 2, [34]
[29] Form 2, [35]
On 3 March 2022 another colleague of Ms Sayabath advised her that Mr Williams had just discussed Ms Sayabath’s employment, and told her colleague that Ms Sayabath would not be returning to work, and that it had been left to Ms Sayabath to determine on what day she would resign.[30]
[30] Form 2, [36]
At 10:01 am on 3 March 2022 Ms Sayabath sent the following email to Ms Cooper, Mr Notley, and Mr Williams (emphasis added):[31]
I just wanted to follow up our chat earlier this week. I was quite shocked by the conversation and on reflection I am feeling really confused about where things ended up and what to do next. From my end, the purpose of our chat was to talk about me accessing leave so I could have my baby. I know that having time off can be disruptive, but I was shocked to be told that I wouldn’t have a job to come back to afterwards. I was also really surprised to have this issue discussed as a part of my probationary review. . . . . I don’t understand how you could say I’m performing well and therefore I’ve done myself a disservice because now you know you’ll need to hire someone else to do the job – I’ve already resolved this by identifying Kerry to step into my role while I’m on Parental leave. I still don’t really understand why I didn’t pass probation and what that means from here. I also don’t understand why I have to resign if I didn’t pass probation, not passing my probation means I'm being dismissed.
To be clear, I don’t want to resign, I enjoy this job and had intended to work here for years to come but I have to take time off to have my baby and I’m confused by the comments of “go away and have your babies” and when you’re done give you a call to see if there is still an available job. As you know my personal circumstances of relocating back to Tamworth and I intend to stay, I was hopeful you would have been more accommodating and that I would have my permanent job to come back to. Is there any chance that you would reconsider?
Until this is resolved I thinks it’s best I just stay away form [sic] the office as it has been quite an emotional shock to me.
[31] Exhibit CJC-1, pages 27-28
At 5:04 pm on 4 March 2022 Mr Williams sent the following email to Ms Sayabath (emphasis added):[32]
Thanks for your email.
We just firstly need to clarify that we were meeting to discuss your request for leave, not your probation period or performance.
As discussed, after careful consideration, the firm has decided not to grant your request for leave. As also discussed, HR is a key element of our business and the Head of HR is a critical role. Our decision is driven by the business need for a HR Manager and given the current and imminent work required to be managed and undertaken by the R&M HR team, 12 months is too long a time to have the position open.
Accordingly, you are not being told to resign, but you are not being granted leave you have sought. It is a matter entirely up to you what you decide to do.
We realise that from your perspective this may be unexpected and that you may be upset, however as a HR professional you are aware that under the NES and R&M’s policy you do not qualify for the leave you have requested. If you need to talk to someone, please take advantage of our employee assistance program. If you feel it would be too distressing to return to work through to your proposed finish date of 17 March, we would be happy to discuss with you an arrangement whereby you leave earlier but still be paid up to 17 March.
Whilst we understand that on a personal level this may seem disappointing, we hope you can understand the commercial position we are faced with.
[32] Exhibit CJC-1, page 27
8 March 2022 – Ms Sayabath purports to accept dismissal of her employment
On 8 March 2022 Ms Sayabath wrote to Ms Cooper, Mr Notley, and Mr Williams “accepting” Willowdale’s “termination of her employment”.[33] There is in evidence an email Ms Sayabath sent to Ms Cooper, Mr Notley, and Mr Williams at 4:07 pm on 8 March 2022 as follows (emphasis added):[34]
This is totally unacceptable and not the response I expected from a professional firm. I have never indicated any intention to resign. Giving birth is not resigning. Making enquiries about whether I will be afforded unpaid parental leave is not resigning. I have entitlements to leave which would have enabled me to give birth and return to work. I have been open and transparent in relation to my pregnancy during my employment and have had numerous discussions with my direct Manager, Phil Gream. Phil told me I would be supported with leave, and asked I put forward a maternity leave proposal for discussion. Your claim that you're terminating me is due to operational or commercial needs is quite clearly a lie. We have not discussed my proposal and I have not been consulted in relation to the impact of my proposed leave, or had any discussions about the proposed duration of my leave. It appears that you have made a number of assumptions about my response to any flexibilities that could be considered to ensure that both the requirements of the business, as well as the caring responsibilities I have for my child are met.
During our discussion last Tuesday, the way l was treated was inappropriate. You implied I didn’t pass probation because I had enquired about taking unpaid Parental leave and as a result of me enquiring about the leave I had to make a choice on when I would resign. You also explained that you were going to permanently replace my substantive role. You said it was not based on my performance but the fact I needed to take time off to “go away and have my babies” and that you were going out to market to advertise. The next day my team were told I wasn’t returning and that you have left it with me to come back to you with my end date of employment with Roberts and Morrow.
When I sent an email to question the reason for my dismissal, you turned around and said that what I decide to do is a matter for myself - telling me I have to leave the business is not leaving the decision for me to decide and the statement is inconsistent with everything that has happened. You have already made a decision that I no longer have a job. You just assumed that me being pregnant meant my employment was over. Now you’re saying the 17th of March despite never discussing that with me.
As someone who has worked in the HR space for over 15 years, I find the way you have approached this disappointing and very unethical. I’ve worked with Managers long enough to know when they are trying to push someone out and it is clear you have made a decision without consulting me. This is the opposite behaviour to the numerous conversations I have had with Phil, he never indicated that I would lose my job due to my personal circumstances and we have been openly discussing how I would back fill my role (if needed, as there was always a chance the pregnancy would not have made it to full term, under the advice of my neonatal specialist). He was always supportive of me needing to take at least some leave and returning to my role, it was just a matter of us deciding how much leave and how it would work. You clearly have not even considered or asked if I could give birth and return quickly to the role.
It is clear you are not willing to find a solution that could work for both parties and instead are using my pregnancy to force me to resign.
So yes, I accept your decision to terminate me.
[33] Form 2, [39]
[34] Exhibit CJC-1, page 26
Events after purported acceptance of termination of employment
On 9 March 2022 Willowdale discontinued Ms Sayabath’s access to its online systems, including work emails.[35] There is in evidence an email Mr Williams sent to Ms Sayabath (copied to Ms Cooper and Mr Notley) at 11:18 am on 10 March 2022:[36]
As you are out of office and not currently working for Roberts & Morrow, for security reasons, we have restricted your external access to the R&M computer network while you do not require access to it.
[35] Form 2, [40]
[36] Exhibit CJC-1, page 29
On 28 March 2022 Ms Sayabath filed with the Fair Work Commission a general protections application involving dismissal.[37]
[37] Affidavit of S Chandra 30.09.2022, [16]
On 4 April 2022 Willowdale sent the following letter to Ms Sayabath:[38]
We refer to our email to you of 10 March 2022 to which we have not received a response.
Notwithstanding that your application for leave commencing on 18 March 2022 was refused, as you have not attended work since or otherwise communicated with us, we have assumed that you have now commenced leave as you planned.
Your conduct in going on leave without our approval and not returning to work is inconsistent with and shows an intention not to be bound by the terms of your employment, and as a result we will treat your employment as at an end.
We will now pay you your accrued but untaken annual leave and ask that you return to us any property of the firm that you still possess.
We wish you well in your further endeavours.
[38] Exhibit CJC-1, page 30
On 14 April 2022, Ms Sayabath received an automated email from the Willowdale payroll system notifying her that a payslip was issued. That was Ms Sayabath’s final payslip from Willowdale and included payment of Ms Sayabath’s untaken accrued annual leave.[39]
[39] Affidavit of S Chandra 30.09.2022, [19]
Ms sayabath’s claims
In her Form 2 Ms Sayabath claims as follows:[40]
The Applicant alleges her termination was unlawful because it was adverse action taken because, or for reasons including:
a.She was pregnant (section 351 of the Act); and/or
b.To prevent her access to accrued personal leave and/or carer’s leave and/or annual leave to support her pregnancy/ childbirth (section 340 of the Act)
[40] Form 2, [41]
summary dismissal – principles
Subsection 143(2) of the FCFC Act provides that this Court:
… may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
Subsection 143(3) of the FCFC Act relevantly provides that, for the purposes of s 143, a proceeding or part of a proceeding need not be hopeless or bound to fail for it to have no reasonable prospect of success.
Subsection 143(2) of the FCFC Act is substantially similar to s 31A(2) of the Federal Court of Australia Act 1976 (Cth); and the principles governing the exercise of the power conferred by s 31A were set out by Perry J in Przybylowski v Australian Human Rights Commission(No 2):[41]
[41] Przybylowski v Australian Human Rights Commission(No 2) [2018] FCA 473, at [7]
The principles governing the application of s 31A are well established and can be summarised as follows:
(1)The respondent as the moving party bears the onus of persuading the Court that the application has no reasonable prospects of succeeding: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256 (Cassimatis) at 271 [45] (Reeves J).
(2)With respect to the scope of s 31A, French CJ and Gummow J explained in Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 (Spencer) at [22], that the section:
… will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable. It will include the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment. It will include the class of case in the long-standing category of cases which are “frivolous or vexatious or an abuse of process”. The application of s 31A is not, in terms, limited to those categories.
(3)Section 31A sets a lower threshold than the previous test for summary dismissal which required that the claim be “manifestly groundless” or “hopeless”: Spencer at [52]-[53] (Hayne, Crennan, Kiefel and Bell JJ). Nonetheless, the discretion must still be exercised with caution (Spencer at [24] (French CJ and Gummow J) and [60] (Hayne, Crennan, Kiefel and Bell JJ)).
(4)An assessment of whether a proceeding has no reasonable prospects of success for the purposes of s 31A involves the making of value judgments in the absence of a full and complete factual matrix and argument, with the result that the provision vests a discretion in the Court: Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; (2009) 178 FCR 401 (Kowalski) at [28] (the Court).
(5) Consistently with this, Reeves J in Cassimatis explained at [46] that:
…the determination of a summary dismissal application therefore does not require a mini-trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial. Instead, it requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial. Each application for summary judgment or summary dismissal has to be determined according to its particular circumstances. What is required is a practical judgment of the case at hand. The relevant circumstances will partly depend upon the stage which the proceedings have reached. Among other things, this will affect the materials available to the Court considering the application, for example, whether pleadings have been exchanged, or discovery of documents has occurred.
(6)To illustrate the application of these principles, Reeves J explained at [47] that the moving party is more likely to succeed if she or he demonstrates that the applicant’s success relies on a question of fact that is fanciful, trifling, implausible, improbable, tenuous, or contradicted by all the available documents or evidence. Conversely, his Honour explained that, as a general principle, such an application is unlikely to succeed where, on a critical examination of all the available materials, the Court is satisfied that there appears to be a real question of fact to be determined. The latter, in his Honour’s view, is more likely to be the case where the available materials include pleadings that raise factual disputes that can truly be described as significant, substantial, plausible or weighty.
parties’ submissions
Respondents’ submissions
The respondents submit that Ms Sayabath has no reasonable prospect of proving that Willowdale dismissed her from her employment. More particularly, the respondents submit that on the facts alleged in the Form 2, and the contemporaneous correspondence between Ms Sayabath and the respondents, Ms Sayabath has no reasonable prospect of showing that she was dismissed within the definition of “dismissed” given in s 386 of the FW Act.
In their counsel’s written submissions the respondents submit that Willowdale took no steps to dismiss Ms Sayabath’s employment, or any steps that were calculated to bring about the end of Ms Sayabath’s employment. Willowdale did nothing more than not accept, as it was not bound to accept, Ms Sayabath’s request that she be given 12 months unpaid parental leave. Willowdale was open to consider alternative proposals; but Ms Sayabath provided none. What led to the end of Ms Sayabath’s employment was her not being content with Willowdale’s decision not to grant Ms Sayabath the 12 months unpaid parental leave she had requested.
Ms Sayabath’s submissions
In her counsel’s written submissions, Ms Sayabath submits this is not an appropriate case for summary dismissal. There is a contested question of fact, namely, what was said at the meeting of 1 March 2022. Implicit in this submission is that the facts alleged in the Form 2 in relation to the meeting, together with the account Ms Sayabath has given through Ms Chandra, if accepted, are reasonably capable of supporting a finding that Willowdale dismissed Ms Sayabath’s employment by what Ms Cooper, Mr Notley, and Mr Williams said at the meeting. Ms Sayabath further submits that, even on Ms Cooper’s account, “the only ‘option’ presented to the heavily pregnant Ms Sayabath was for her to resign”:[42]
The real difficulty for the Respondents is that even on their apparent best case it remains quite arguable that Ms Sayabath was constructively dismissed. Her request for leave was not driven by personal preference. Ms Sayabath was about to have a baby, with labour being induced on a particular date due to the high-risk nature of the pregnancy. Her baby would thereafter require further medical care. Leave, in these circumstances, was not optional. Willowdale Nominees simply glibly refusing to grant it, and again on its own case posing no alternatives but resignation, left her in a position where she could not continue her employment.
[42] Applicant’s submissions re summary dismissal, [8], [26]
Finally, Ms Sayabath submits she has an alternative case:[43]
In addition, had the Respondents contended in their response to the application that their conduct toward Ms Sayabath did not constitute a dismissal, an alternative case would have arisen on reply.
As set out above, Ms Sayabath contends that Willowdale Nominees had previously indicated, via Mr Gream, that she would be granted leave. Even if it is accepted that all Willowdale Nominees determined to do was to refuse her request for leave, this would constitute adverse action within the meaning of s.342(1).1.(b) and (c) [sic]. It would be open to Ms Sayabath to contend that this occurred in contravention of s.340 and/or s.351.
In circumstances where the Respondents had previously withdrawn an identical objection, it could not be anticipated that the point would be taken anew at this stage in the proceedings. In that light, there is no reason that this would be set out in the initial application (noting that Ms Sayabath was not legally represented at the time this was drafted).
Again this need not be dealt with at this stage. It illustrates, however, how unamenable these factually complex proceedings are to summary dismissal.
[43] Applicant’s submissions re summary dismissal, [28]-[31]
Respondents’ submissions in relation to alternative case
Counsel for the respondents accepts that, even though Ms Sayabath’s alternative case is not stated in the Form 2, it would be open to me to consider whether, on the material that is before me, Ms Sayabath would not have reasonable prospects of succeeding on such claim. Counsel submitted, however, that, assuming it is reasonably arguable Willowdale agreed to support Ms Sayabath’s application for unpaid leave for six months, that process was “completely annulled” by Ms Sayabath’s email of 7 February 2022.[44] Counsel submitted that Ms Sayabath did not refer to such agreement in her email, and she did not re-enliven it in any of the subsequent correspondence with the respondents.
[44] T26.10
Issues arising
The parties’ competing submissions give rise to the following question: is it the case that Ms Sayabath does not have reasonable prospects of succeeding on her claims for relief to the extent her claims rely on one or both of the following:
(a)the contention that Ms Sayabath was dismissed; and
(a)the contention that Willowdale had agreed to grant Ms Sayabath six months unpaid parental leave?
Before I consider these questions, it will be necessary to set out the relevant provisions of the FW Act these questions engage, and some authorities.
StatuTOry provisIons and principles
Ms Sayabath claims that Willowdale contravened s 340(1) and s 351 of the FW Act.
Section 340 of the FW Act
Subsection 340(1) of the FW Act provides:
A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii)proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b)to prevent the exercise of a workplace right by the other person.
Three matters must be established before a person will be held to have contravened s 340(1) of the FW Act. First, the person has taken “adverse action against another person”. That expression is defined in a table contained in s 342(1) of the FW Act (342 table) which identifies in one column the persons by whom and against whom adverse action must be taken, and, in another column, the conduct that, if taken by and against such persons, constitutes adverse action. Relevant to this proceeding is item 1 of the 342 table, which provides as follows:
Adverse action is taken by . . . if . . . an employer against an employee
the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee’s prejudice; or
(d) discriminates between the employee and other employees of the employer.
The second and third matters that must be established are that the employee against whom the employer had taken adverse action exercised a “workplace right”, and that the employer took the adverse action because the employee exercised a “workplace right”.[45] It is unnecessary to say anything further about the second and third matters. It is necessary, however, to consider the meaning of “dismisses the employee”.
[45] FW Act, s 360
“dismisses the employee”
The FW Act does not define the expression “dismisses the employee” that appears in the 342 table. The word “dismissed”, however, appears in s 12 of the FW Act, after which appear the words “see section 386”. Section 386 is contained in Part 3-2 of the FW Act, which deals with unfair dismissal. Subsection 386(1) provides:
A person has been dismissed if:
(a)the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b)the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
It has been assumed that the definition of a “person has been dismissed” in s 386(1) of the FW Act applies to the expression “dismisses the employee” as it appears in the 342 table;[46] and Ms Sayabath and the respondents accept that the definition of “dismissed” in s 386(1) of the FW Act applies to “dismisses” in the 342 table.
[46] Fair Work Ombudsman v Austrend International Pty Ltd [2018] FCA 171 (Gilmour J)
The Explanatory Memorandum to the Fair Work Bill 2008 explained the purposes of what became enacted as s 386(1) of the FW Act as follows:
1528.This clause sets out the circumstances in which a person is taken to be dismissed. A person is dismissed if the person’s employment with his or her employer was terminated on the employer’s initiative. This is intended to capture case law relating to the meaning of ‘termination at the initiative of the employer’ (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200).
1529.Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Conduct includes both an act and a failure to act (see the definition in clause 12).
1530.Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations:
•where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or
•where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign.
Although this extract from the Explanatory Memorandum provides useful background to the purposes for which s 386(1) of the FW Act was enacted, the legislative intention behind s 386(1) must be ascertained by construing its text, having regard to the statutory context in which it appears. That task “must begin with a consideration of the text itself”, with the “language which has actually been employed in the text of legislation” being “the surest guide to legislative intention”.[47] The meaning of the text, however, “may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy”.[48]
[47] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41, at [47] (Hayne, Heydon, Crennan and Kiefel JJ), cases referred to omitted
[48] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41, at [47] (Hayne, Heydon, Crennan and Kiefel JJ), cases referred to omitted
Subsection 386(1) of the FW Act provides for two sets of circumstances in which a person “has been dismissed”. The first set are specified in s 386(1)(a), and these are where a “person’s employment” has been “terminated” on the “employer’s initiative”. Paragraph (a) of s 386(1) contains three elements. First, there is that which must be terminated, namely, a “person’s employment”. That implies an employment relationship between an employee and an employer which, in turn, implies a contract between the employee and the employer. An “employee” is a person who stands in a particular relationship with another person, an “employer”, being a relationship that “always depends on the existence of an agreement between them”.[49] The agreement consists of one person to the agreement – the employee – agreeing to perform work for the benefit of the other person to the agreement[50] – the employer – and the employer agreeing to pay to the employee, as and when the work is performed, an amount or an amount calculated by reference to an agreed rate.[51]
[49] Amalgamated Collieries of W.A Ltd v True (1938) 59 CLR 417, at page 423 (Latham CJ). See also Lister v Romford Ice and Cold Storage Co Ltd [1957] AC 555, at page 587 where Lord Radcliffe said that “in modern times the relationship between master and servant, between employer and employed, is inherently one of contract”.
[50] “The essence of a contract of service is the supply of the work and skill of a man.” – Humberstone v Northern Timber Mills (1949) 79 CLR 389, at pages 404-405 (Dixon J)
[51] Building Workers’ Industrial Union of Australia v Odco Pty Ltd (1991) 29 FCR 104, at page 114 (Wilcox, Burchett, Ryan JJ).
The cases distinguish between the employment relationship and the contract of employment on which such relationship is based, at least in the context of an employer’s wrongful termination of an employee. It has not been doubted “in this country that a wrongful dismissal terminates the employment relationship notwithstanding that the contract of employment may continue until the employee accepts the repudiation constituted by the wrongful dismissal and puts an end to the contract”.[52] The judgments of Latham CJ and Dixon J in Automatic Fire Sprinklers Pty Ltd v Watson are often referred to as authority for this principle.[53] Latham CJ said:[54]
But if a dismissed servant, as in the present case, does not accept his dismissal as a breach entitling him to regard the contract as discharged, he cannot ignore the wrongful dismissal and claim still to be the servant of his employer with the rights of a servant. The dismissal, though wrongful, is not a nullity. . . . Thus the wrongful dismissal determines the relationship of master and servant created by the contract, even though the servant may not have accepted his dismissal as entitling him to regard the contract as discharged.
[52] Byrne v Australian Airlines Ltd [1995] HCA 24, at [23]
[53] Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435; [1946] HCA 25
[54] Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435, at pages 450-451
The expression “person’s employment” in s 386(1)(a) of the FW Act, therefore, includes not only the contract of employment to which the employee is a party, but also the employment relationship that arises on the basis of the contract of employment.
Second, there must be that which constitutes the termination, that is, the ending, of the “person’s employment”. This includes conduct by which a contract of employment may be terminated, such as the giving of the required notice where the contract of employment is terminable by notice; by agreement between the employer and the employee; and by an employee’s acceptance of an employer’s repudiation of the contract of employment. It also includes the employer’s unilateral conduct, such as wrongful dismissal, that does not by itself end the contract of employment, but does end the employment relationship.
This construction of termination of a “person’s employment” as including the employer’s unilateral termination of the employment relationship is consistent with the meaning of “dismissal” in s 245 of the Industrial Relations Act1991 (NSW), as construed by the Full Court of the Industrial Court in Smith v Director-General School Education. The Court said:[55]
The Industrial Relations Act does not define “dismissal” . . . . It is to the ordinary meaning of “dismiss” that assistance may be obtained. . . . [W]e find no difficulty in accepting the ordinary meaning of “dismissal” suggested by Brereton J in Ex parte Wurth as being “the termination of services by the employer without the employee’s consent”; we would add that where an employee does not freely consent to the termination, understood in a broad sense, then the circumstances may still amount to a dismissal by the employer as a constructive dismissal . . . .
[55] Smith v Director-General School Education (1993) 31 NSWLR 349, at page 365E-366B
The expression “constructive dismissal”, however, is not recognised by the common law; and where in Australian cases there has been a reference to this expression, “the reference has essentially been to conduct on the part of the employer which would constitute repudiation of the contract”.[56]
[56] Cook v CFP Management Pty Ltd (2006) 152 IR 358, at 362 ([17]) (QCA). See also Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941, at [50], where the Full Bench of the Fair Work Commission said: “In the current statutory context of s.386(1), the breadth of the concept of “constructive dismissal” may cause confusion and deflect attention away from whether a dismissal within the meaning of paragraph (a) or paragraph (b) is being considered.”
Third, that which constitutes the termination of the employee’s employment must be initiated by the employer. This would cover acts by which an employer unilaterally terminates a contract of employment, such as by giving reasonable notice, and repudiatory conduct by which the employer ends the employment relationship. It will also include conduct that requires an act by the employee to put an end to the contract of employment. This would include an employer’s repudiating the contract of employment, and where the employer seeks the agreement of the employee to end the contract. Here the employer initiates the termination of the contract of employment; and the termination of the contract occurs when the employee accepts the repudiation or enters into an agreement to terminate the employment contract.
It may be that “on the employer’s initiative” extends beyond these acts. That follows from the judgment of the Full Court of the Industrial Relations Court of Australia (IRC) in Mohazab v Dick Smith Electronics Pty Ltd (No 2).[57] In that case the IRC considered an application under s 170EA(1) of the Industrial Relations Act 1988 (Cth) (IR Act) “for a remedy in respect of termination of his or her employment”. Section 170CA of the IR Act provided that the object of Div 3 of Part VIA of the IR Act (which contained s 170EA) was to give effect to the Convention concerning the Termination of Employment at the Initiative of the Employer (Convention) and the Recommendation concerning the Termination of Employment at the Initiative of the Employer, the provisions of which respectively constituted schedules 10 and 11 to the IR Act. The word “termination” that appeared in s 170EA of the IR Act was not defined in the IR Act, but it was defined in the Convention to mean “termination at the initiative of the employer”. The question in Mohazab was whether the applicant’s employment was terminated at the initiative of the employer; and this required the Court to consider the meaning of “termination at the initiative of the employer”. The IRC said:[58]
Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression ‘‘termination of employment’’ . . . . In many, if not most, situations the act of the employer that terminates the employment relationship is not only the act that puts in train the process leading to its termination but is, in substance, the entire process. An example would be a situation where the employer decided to dismiss an employee and did so orally or in writing with immediate effect. Other situations may be more complex as exemplified by the circumstances considered by Moore J in Grout v Gunnedah Shire Council (1994) 1 IRCR 143; 57 IR 243 where an employee had given written notice purporting to terminate the employment relationship. The notice was not reasonable but was accepted by the employer which later refused to allow the employee to withdraw the notice.
[57] Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200
[58] Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200, at page 205
The Court also said:[59]
In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.
[59] Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200, at pages 205-206
Mohazab was decided before s 386(1) of the FW Act was enacted. It appears that much of what the IRC said about the meaning of “at the initiative of the employer” would be covered by s 386(1)(b) of the FW Act; and it may be that, contrary to what is contained in the Explanatory Memorandum, s 386(1)(b) was intended to cover at least in part what the IRC said in Mohazab about “at the initiative of the employer”.
The second set of circumstances where a person will have “been dismissed” are specified in s 386(1)(b) of the FW Act; and these comprise three elements.
(a)First, the employee “has resigned from his or her employment”. The ordinary meaning of “resign”, when used as a verb, is to “relinquish, give up (an office, position, right, claim, etc.)”.[60] Thus, for an employee to resign from his or her employment, the employee must purport to relinquish or, more accurately, offer to relinquish his or her rights under the contract of employment.
(b)Second, the employee was “forced to do so”; that is, the employee “was forced” to resign. The ordinary meaning of “force”, when used as a verb, is to “compel, constrain, or oblige (a person, oneself, etc.) to do a thing (sometimes with to omitted); to bring (things), to drive (a person, etc.) to or into (a course of action, a condition)”.[61] Thus “forced”, when used in connection with an employee who “has resigned” in s 386(1)(b) of the FW Act, means an employee’s having been compelled, or driven, or obliged, or constrained to resign from his or her employment.
(c)Third, the employee was forced to resign “because” of conduct, or a course of conduct, engaged in by his or her employer.
[60] Oxford English Dictionary, online edition
[61] Oxford English Dictionary, online edition
Paragraph (b) of s 386(1) of the FW Act does not specify what constitutes an employee’s having been forced to resign; nor does it identify the conduct the employer must engage in before it can be found that it was because of the conduct that the employee was forced to resign from his or her employment. The ordinary meaning of “force”, however, overlaps substantially, if not wholly, with the notions of “coercion” and “duress” (themselves near synonyms) that have been considered in cases under the general law,[62] in cases under s 343 of the FW Act,[63] and in academic literature.[64] In broad terms, the notions of coercion and duress denote conduct by person A that is directed to person B that places person B in the position of having “to choose the lesser of two evils”,[65] and person B choosing the lesser of the two evils. Such conduct will usually take the form of person A making an express or implied conditional representation to person B that, unless person B does, or refrains from doing, act X, person B will suffer some adverse consequence, or will be prevented from acquiring some benefit; and person B does or refrains from doing act X to avert the represented adverse consequence.
[62] See for example, Crescendo Management Pty Ltd v Westpac Banking Corporation(1988) 19 NSWLR 40, at pages 45-46
[63] See for example, Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia[2001] FCA 456; at [41], which must now be considered in light of Esso Australia Pty Ltd v The Australian Workers' Union; The Australian Workers' Union v Esso Australia Pty Ltd [2017] HCA 54, at [61]
[64] See, for example, Honore T “A Theory of Coercion” Oxford Journal of Legal Studies, Vol 10, No 1, page 94 (1990)
[65] Union Pacific Railroad Company v Public Service Commission 248 US 67 (1918), at page 70 (Holmes J)
Person A’s making such conditional representation, and person B’s being induced to do, or to refrain from doing, act X, does not by itself, however, constitute coercion; and that is because there is a vast array of transactions that are lawfully entered into, and therefore have legal effect, under the inducement of such conditional representations. For example, a debtor’s paying a debt under the inducement of the creditor’s representation that he or she will commence legal proceedings unless the debtor pays the debt would not, by itself, constitute coercion. Nor would it be coercion, for example, if a buyer agreed to pay a particular price for land under the inducement of the seller’s representing that he would sell the land to some other person unless the buyer agreed to pay the particular price. The cases, therefore, have required that before a conditional representation can constitute coercion, the representation must have been made in circumstances that are in some way improper or illegitimate. One approach that may still be influential is that of McHugh JA (as his Honour then was) in Crescendo Management Pty Ltd v Westpac Banking Corporation:[66]
The rationale of the doctrine of economic duress is that the law will not give effect to an apparent consent which was induced by pressure exercised upon one party by another party when the law regards that pressure as illegitimate. . . .
In my opinion the overbearing of the will theory of duress should be rejected. A person who is the subject of duress usually knows only too well what he is doing. But he chooses to submit to the demand or pressure rather than take an alternative course of action. The proper approach in my opinion is to ask whether any applied pressure induced the victim to enter into the contract and then ask whether that pressure went beyond what the law is prepared to countenance as legitimate? Pressure will be illegitimate if it consists of unlawful threats or amounts to unconscionable conduct. But the categories are not closed. Even overwhelming pressure, not amounting to unconscionable or unlawful conduct, however, will not necessarily constitute economic duress.
[66] Crescendo Management Pty Ltd v Westpac Banking Corporation(1988) 19 NSWLR 40, at pages 45-46
On this analysis, person B will be taken to have been coerced in doing, or refraining from doing, act X if he or she was induced to do so by the conditional representation in circumstances where it was in some way illegitimate or improper for person B to make the conditional representation. What is illegitimate or improper is not necessarily restricted to conduct that may be characterised as unconscionable or unlawful pressure.[67]
[67] So suggested in the context of s 343 of the FW Act in Esso Australia Pty Ltd v The Australian Workers’ Union; The Australian Workers’ Union v Esso Australia Pty Ltd [2017] HCA 54, at [61]
In the context of s 386(1)(b) of the FW Act, therefore, “forced”, when used in relation to an employee’s having resigned from his or her employment, will usually involve an employer’s having conveyed to the employee, in circumstances that are in some way improper or illegitimate, a representation to the effect that, unless the employee resigns from his or her employment, the employee will or may face adverse consequences; and the employee’s deciding to resign from his or her employment to avoid the represented adverse consequences.
“injures the employee in his or her employment”
This expression, as used in s 298K(1) of the Workplace Relations Act 1996 (Cth), was considered by Spender J in Commonwealth Bank of Australia v Finance Sector Union of Australia. His Honour referred[68] with approval to the following passage from the reasons for judgment of Smithers J in Childs v Metropolitan Transport Trust:[69]
I cannot help thinking that “injury” refers to deprivation of one of the more immediate practical incidents of his employment, such as loss of pay or reduction in rank.
[68] Commonwealth Bank of Australia v Finance Sector Union of Australia (2007) 157 FCR 329
[69] Childs v Metropolitan Transport Trust [1981] FCA 200; (1981) 29 AILR 24
“alters the position of the employee to the employee’s prejudice”
This expression has been considered in a number of cases. In Maritime Union of Australia & Ors v Geraldton Port Authority & Ors[70] R D Nicholson J referred to the following passage from the reasons for judgment of Smithers J in Childs v Metropolitan Transport Trust:[71]
It is possible to read the word “position” in a narrow way merely as referable to the immediate incidents of day-to-day employment. But I do not see any reason why it should be so circumscribed in meaning. It seems to me that the word “position” should be read rather to refer to a man’s employment position in all its attributes and that to find what those attributes are in any particular case, you look at the terms of employment, the terms of the agreement in relation to the particular employment. Fear of alteration of any of those terms or of the entitlements thereunder would be as potent a factor inhibiting an employee from operating the Act as fear of dismissal, or loss of pay or something in the nature of an immediate injury. I think therefore that cancellation or repudiation of a term of employment which has been agreed upon, cancellation or repudiation by an employer which the employee is in no position, legal or otherwise, to resist or oppose, although he may get some legal rights in relation to it, by withdrawal of a promise of secure employment in a position for an agreed term is an alteration in the employee’s position within the meaning of s 5 [of the Conciliation and Arbitration Act 1904 (Cth)], and I think it takes place on the day of cancellation or repudiation of the promise that was made. From then on his position is substantially altered. The term is gone.
[70] In Maritime Union of Australia & Ors v Geraldton Port Authority & Ors (1999) 165 ALR 67, at pages 100-101 ([229])
[71] Childs v Metropolitan Transport Trust [1981] FCA 200; (1981) 29 AILR 24
Also relevant is the following passage from the reasons for judgment of the Full Federal Court in Community and Public Sector Union v Telstra Corporation Ltd:[72]
In Patrick Stevedores at 18 the majority of the High Court held that the subsection covers “not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question”. The majority also observed (at 20) that the reorganisation of companies within the Patrick Group resulted in the security of the employer companies’ businesses being “extremely tenuous” with the “security of the employees’ employment [being] consequentially altered to their prejudice”. The reorganisation did not directly affect or alter any legal rights or obligations of the employees but it left their future employment less secure. Although this issue was not in dispute, the majority appears to have had no difficulty in accepting reduced security of future employment as falling within s 298K(1)(c) because it brought about an adverse affection of, or a deterioration in, the advantages enjoyed by the employees before the reorganisation.
[72] Community and Public Sector Union v Telstra Corporation Ltd (2001) 107 FCR 93, at page 100 ([17]) (Black CJ, Ryan and Merkel JJ). This passage was quoted with approval by the Full Federal Court in Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association [2012] FCAFC 63, at [30] (Gray, North and Besanko JJ).
Section 351 of the FW Act
Subsection 351(1) of the FW Act provides as follows:
An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
An essential element of s 351(1) of the FW Act is an employer’s taking “adverse action”. That bears the same meaning as “adverse action” in s 340(1); and for that reason I do not need to say anything further about s 351(1) of the FW Act.
ms sayabath’s claims based on dismissal
The first question is, assuming the facts alleged in the Form 2 are proved, whether Ms Sayabath has no reasonable prospects of succeeding on her claim that she was “dismissed” by Willowdale within the meaning of s 386(1) of the FW Act.
Claim based on dismissal at 1 March 2022 meeting
In the Form 2 Ms Sayabath claims that Willowdale dismissed her at the meeting held on 1 March 2022, which she describes as the “Termination Meeting”. The Form 2 alleges that at that meeting Ms Cooper, Mr Notley, and Mr Williams informed Ms Sayabath that “as her probation period had not finished, the business had decided to end her employment on the date she had proposed to commence maternity leave”; Ms Sayabath “sought clarity as to why she was being forced to resign”; Ms Cooper, Mr Notley, and Mr Williams advised Ms Sayabath that “since she was within her probationary term, they could make this decision at any time”, and Ms Cooper, Mr Notley, and Mr Williams indicated that Ms Sayabath “should just go off and have her babies and call them down the track as they might offer her a job then”.
Ms Sayabath has no reasonable prospects of succeeding, on the basis of the matters she alleges in the Form 2, that at the meeting of 1 March 2022 Willowdale terminated Ms Sayabath’s employment, either in the sense of terminating her contract of employment, or in the sense of ending the employment relationship between Ms Sayabath and Willowdale that was based on her contract of employment.
(a)The Form 2 alleges that Ms Cooper, Mr Notley, and Mr Williams said that “the business had decided to end [Ms Sayabath’s] employment on the date she had proposed to commence maternity leave”. Considered alone, that is no more than a statement of intention that the business would end Ms Sayabath’s employment on 17 March 2022. That necessarily implies that the employment relation would continue until that day. It is not a statement to the effect that Ms Sayabath’s employment relationship with Willowdale was at an end.
(b)The statement in (a) must be viewed in the context of the other statements the Form 2 alleges were made at the meeting. Relevant is the allegation that Ms Sayabath sought to clarify why she was “being forced to resign”. That reflects an understanding by Ms Sayabath that Ms Cooper, Mr Notley, and Mr Williams did not, at the meeting, end the employment relationship between Ms Sayabath and Willowdale, but had instead sought to end Ms Sayabath’s employment by inducing Ms Sayabath to resign from her employment. Ms Sayabath retained this understanding after the meeting of 1 March 2022. The Form 2 alleges that on 3 March 2022 Ms Sayabath wrote to Ms Cooper, Mr Notley, and Mr Williams to make it clear that she did not want to resign, and she had sought clarification as to why she was told she had to resign.
(c)The statement in (a) must also be viewed in light of emails Ms Sayabath sent to the respondents after the meeting of 1 March 2022. Of particular relevance is the email Ms Sayabath sent on 2 March 2022 to Ms Cooper in which she said she “won’t be in today”, and that she had let her team know “so we will reschedule the HR strategy meeting they will … continue work on it”.[73] That assumes Ms Sayabath understood that the employment relation between her and Willowdale was still on foot.
[73] Exhibit CJC-1, page 23
I have so far assumed that Ms Sayabath will at the hearing prove the facts she alleges in the Form 2. That assumption, however, is not correct because the account of the 1 March 2022 meeting Ms Sayabath has given through Ms Chandra is not entirely consistent with the facts alleged in the Form 2.
(a)Ms Sayabath does not say that any of Ms Cooper, Mr Notley, and Mr Williams said words to the effect of “as [Ms Sayabath’s] probation period had not finished, the business had decided to end her employment on the date she had proposed to commence maternity leave”; nor does she say that any of Ms Cooper, Mr Notley, and Mr Williams said that “since [Ms Sayabath] was within her probationary term, they could make this decision at any time”. Ms Sayabath says that Mr Notley said that Ms Sayabath was “on the cusp of six months so we can still legally terminate you”. That does not convey an intention to terminate Ms Sayabath’s employment.
(b)Ms Sayabath does not identify words that are capable of conveying the allegation made in the Form 2 that Ms Sayabath “sought clarity as to why she was being forced to resign”. The words “forced to resign” are not included in Ms Sayabath’s account of the meeting of 1 March 2022. Ms Sayabath says Ms Cooper said words to the effect of “You can resign, and let us know when you want … your end date to be”. That cannot reasonably be construed as a request that Ms Sayabath resign.
I am also satisfied that Ms Sayabath does not have reasonable prospects of succeeding, on the basis of Ms Sayabath’s account of the meeting of 1 March 2022, that at the meeting Willowdale terminated Ms Sayabath’s employment, either in the sense of terminating her contract of employment, or in the sense of ending the employment relationship between Ms Sayabath and Willowdale that was based on her contract of employment.
In his oral address, counsel for Ms Sayabath submitted that, in the meeting of 1 March 2022, Ms Cooper, Mr Notley, and Mr Williams focused solely on Ms Sayabath’s request that she be granted 12 months unpaid parental leave, and they did not engage with Ms Sayabath to find some alternative; and, for this reason, it is reasonably arguable that that manifested an intention by Ms Cooper, Mr Notley, and Mr Williams to end the employment relationship.[74] I do not accept that submission.
[74] T37.30
On the evidence before me, the only request for leave Ms Sayabath made was that she be granted 12 months unpaid parental leave with the possibility of her returning before the 12 month period, depending on the progress of her child. Ms Sayabath offered no alternative proposal with which Ms Cooper, Mr Notley, and Mr Williams could have engaged. Ms Cooper, Mr Notley, and Mr Williams offered to discuss the matter further with Ms Sayabath; but Ms Sayabath decided not to meet with Ms Cooper, Mr Notley, and Mr Williams to discuss the matter further. Instead, on 3 March 2022 she sent an email to Ms Cooper, Mr Notley, and Mr Williams in which she said she was hopeful Willowdale would be more accommodating; that she would have her permanent job to come back to; and she asked whether there was “any chance that you would reconsider”. It is plain that in this email Ms Sayabath was asking Willowdale to reconsider its decision not to grant Ms Sayabath’s request that she be granted 12 months unpaid parental leave. Ms Sayabath did not request that Willowdale consider any alternative request for unpaid parental leave.
Claim based on forced resignation
The Form 2 does not in terms allege that Ms Sayabath resigned from her employment, and that she was forced to do so because of conduct, or a course of conduct, by Willowdale. The Form 2 alleges that on 8 March 2022 Ms Sayabath wrote to Ms Cooper, Mr Notley, and Mr Williams accepting Willowdale’s termination of her employment. It appears, however, from her counsel’s written submissions that I have reproduced in paragraph 34 of these reasons, that Ms Sayabath claims it is “quite arguable that Ms Sayabath was constructively dismissed”; and it would be convenient if I again reproduce the submissions Ms Sayabath’s counsel made in support of that claim here:
[Ms Sayabath’s] request for leave was not driven by personal preference. Ms Sayabath was about to have a baby, with labour being induced on a particular date due to the high-risk nature of the pregnancy. Her baby would thereafter require further medical care. Leave, in these circumstances, was not optional. Willowdale Nominees simply glibly refusing to grant it, and again on its own case posing no alternatives but resignation, left her in a position where she could not continue her employment.
This submission does not in terms identify Willowdale’s conduct Ms Sayabath alleges forced her to resign from her employment, or how such conduct is said to have forced Ms Sayabath to resign from her employment; but the intention of the submission is clear enough. The conduct by which Ms Sayabath contends Willowdale forced Ms Sayabath to resign from her employment was Willowdale’s not agreeing to Ms Sayabath’s request that she be granted 12 months unpaid parental leave; and the manner in which Ms Sayabath alleges Willowdale’s refusal to grant her request is that, without the grant of the parental leave she sought, Ms Sayabath would not be in a position to maintain her employment relationship with Willowdale.
It is not reasonably arguable that it was Willowdale’s not agreeing to Ms Sayabath’s request for 12 months unpaid parental leave that forced Ms Sayabath to resign from her employment; what forced Ms Sayabath to resign from her employment was, as Ms Sayabath herself submits, her not being in a position to continue with her employment. It is true that, if Willowdale had agreed to grant her request, Ms Sayabath would not have ended her employment relationship. But that does not alter the fact that it was Ms Sayabath’s inability to continue with her employment that forced her to end the employment relationship with Willowdale. Ms Sayabath had a choice to make. Either Ms Sayabath could resign; or she could remain in employment and seek to access whatever legal rights she had to parental, carer’s, and other leave to deal with the substantial challenges she expected to face after giving birth. The necessity for Ms Sayabath to choose between these two options, however, was not brought about by any conduct on the part of Willowdale.
Whether Willowdale’s refusal to grant Ms Sayabath’s request for 12 months parental leave forced Ms Sayabath to resign from her employment can be considered in another way. I earlier noted that “forced”, in the context of s 386(1)(b) of the FW Act, will usually include conduct by which an employer conveys a representation to the employee that the employee will face some adverse consequence, or will be deprived of a future benefit, unless the employee chooses to resign from his or her employment. Willowdale’s refusal to agree to Ms Sayabath’s proposal that she have 12 months unpaid parental leave, however, was incapable of conveying a representation to Ms Sayabath to the effect that she would or might suffer some adverse consequence unless she chose to resign from her employment. In any event, in the email Mr Williams sent to Ms Sayabath on 4 March 2022, Mr Williams made it clear that Ms Sayabath was not being told to resign.
Assume, however, that Ms Sayabath has reasonable prospects of establishing at a final hearing that it was Willowdale’s not agreeing to Ms Sayabath having 12 months of unpaid parental leave that forced Ms Sayabath to resign from her employment. Even on that assumption, Ms Sayabath would not have reasonable prospects of succeeding on her claim that she was forced to resign because of conduct or a course of conduct in which Willowdale engaged.
Willowdale was under no legal obligation to grant Ms Sayabath the 12 months unpaid parental leave she requested. That means that Ms Sayabath’s case that she was forced to resign by Willowdale’s conduct implicitly relies on the premise that an employer’s omitting to engage in conduct it is under no legal obligation to engage in may constitute “conduct” or “course of conduct” for the purposes of s 386(1)(b) of the FW Act. To so construe “conduct” and “course of conduct”, however, would be absurd. On such construction an employee will be dismissed within the meaning of s 386(1)(b) of the FW Act if the employee felt compelled to resign from his or her employment because the employer refused an employee’s request or demand to engage in conduct the employer was under no legal duty to engage in.
Quite apart from absurdity, to construe “conduct” and “course of conduct” to include a failure to engage in conduct an employer is not legally required to engage in is incompatible with, and would go beyond the apparent purpose of, the provisions in the FW Act which prohibit an employer from taking adverse action against an employee (which includes dismissing an employee). The apparent purpose of these provisions, as revealed by their text, is to protect an employee’s legal rights under his or her contract of employment, or under an industrial instrument, or under a workplace law; to protect “the advantages enjoyed by the employee” as an employee;[75] and to protect the ability of an employee to access regulatory agencies, industrial organisations, and courts to understand, enforce, or protect his or her rights as an employee. It is not within the purpose of these provisions to confer on an employee the right to resign if he or she felt compelled to do so, and thus be held to have been dismissed by the employer, because the employer refuses to comply with the employee’s request that it do something in relation to the employee’s employment the employer is not legally required to do.
[75] Community and Public Sector Union v Telstra Corporation Ltd (2001) 107 FCR 93, at page 100 ([17])
Thus, even if, contrary to what I have concluded, Ms Sayabath has reasonable prospects of succeeding in her contention that Willowdale’s not agreeing to grant Ms Sayabath the unpaid parental leave she sought forced Ms Sayabath to end her employment relationship with Willowdale, Ms Sayabath would not have reasonable prospects of establishing that Willowdale’s not so agreeing constituted “conduct” or “course of conduct” within the meaning of s 386(1)(b) of the FW Act.
Conclusion
I am satisfied Ms Sayabath has no reasonable prospect of successfully prosecuting the proceeding based on her claims that the respondents have contravened s 340(1) and s 351(1) of the FW Act to the extent those claims rely on the contention that Willowdale dismissed Ms Sayabath from her employment.
alternative claim
Ms Sayabath does not in her Form 2 rely on a claim based on the allegation that Mr Gream had indicated that Ms Sayabath would be granted leave, and that Willowdale took adverse action by refusing Ms Sayabath’s request for leave (Alternative Claim). In her counsel’s written submissions, Ms Sayabath says that “had the Respondents contended in their response to the application that their conduct toward Ms Sayabath did not constitute a dismissal, an alternative case would have arisen on reply”. Ms Sayabath appears to intend to submit that she did not include in her Form 2 the Alternative Claim because this was a matter that ought to be a claim made in reply.
I would not accept such submission. The Alternative Claim is a claim for relief, and ought to have been articulated in the Form 2, or in an amended Form 2. Further, I do not accept that Ms Sayabath’s not including the Alternative Claim in her Form 2 was due to the respondents’ putting in issue her claim that Willowdale terminated her employment. There is nothing to indicate that the respondents would not dispute Ms Sayabath’s claim that Willowdale dismissed Ms Sayabath from her employment. In any event, even if, as Ms Sayabath submits, she is entitled to articulate the Alternative Claim in a reply, Ms Sayabath has not articulated that claim in any draft form of reply. All I am left to consider is the Alternative Claim as described in Ms Sayabath’s counsel’s written submissions.
I am not satisfied that counsel’s description of the Alternative Claim articulates any arguable claim for relief under s 340(1) or s 351(1) of the FW Act based on Mr Gream’s having represented to Ms Sayabath that her application for parental leave would be supported, and his having approved at least a six month “back fill” for Ms Sayabath’s position (Gream Representation and Approval). Counsel’s description of the Alternative Claim does not identify:
(a)what, if any, rights, or benefits, or reasonable expectations in relation to Ms Sayabath’s employment the Gream Representation and Approval gave rise to, such that Willowdale’s refusal to grant Ms Sayabath’s request for 12 months unpaid parental leave is said to have injured Ms Sayabath “in . . . her employment” (being the adverse conduct identified in paragraph (b) of column 2 to item 1 of the 342 table), or to have altered Ms Sayabath’s position to her prejudice (being the adverse conduct identified in paragraph (c) of column 2 to item 1 of the 342 table); and
(b)how it is said Willowdale’s not agreeing to Ms Sayabath’s request that she be granted 12 months unpaid parental leave injured any rights, or benefits, or reasonable expectations the Gream Representation and Approval gave rise to, or otherwise altered Ms Sayabath’s position to her prejudice.
That then leaves me to consider whether, on the evidence, Ms Sayabath does not have a reasonable prospect of succeeding on the Alternative Claim. I am satisfied that Ms Sayabath does not have any such prospect. The evidence reveals that the only request for unpaid parental leave Ms Sayabath made to Willowdale was that she be granted 12 months of such leave; and that Willowdale refused that request. In those circumstances, Willowdale’s not agreeing to grant Ms Sayabath’s request for 12 months parental leave is incapable of adversely affecting any rights, or benefits, or reasonable expectations in relation to Ms Sayabath’s employment the Gream Representation and Approval was capable of giving rise to; and that is because Willowdale’s not so agreeing affords no rational basis for concluding that Willowdale was unwilling to support any alternative proposal for unpaid parental leave Ms Sayabath may have considered submitting to Willowdale, including the parental leave that may have been contemplated by the Gream Representation and Approval.
I am therefore satisfied that Ms Sayabath has no reasonable prospect of successfully prosecuting the proceeding to the extent that she relies on the Alternative Claim.
disposition
I propose to order that there be judgment for the respondents, being the order the Court may make on a successful application under s 143(2) of the FCFC Act.
I will make no order for costs, but will reserve to the parties liberty to apply within 28 days for any order in relation to costs.
I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 17 February 2023
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