Symons v Paperless Warehousing Pty Limited
[2022] FedCFamC2G 93
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Symons v Paperless Warehousing Pty Limited [2022] FedCFamC2G 93
File number(s): SYG 1352 of 2020 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 21 February 2022 Catchwords: INDUSTRIAL LAW – Redundancy – application for remedies under the Fair Work Act 2009 (Cth) (FW Act) arising out of the first respondent’s termination of the applicant’s employment – whether the first respondent terminated the applicant’s employment because the first respondent no longer required the job the applicant did to be done by anyone such as to have given rise to the applicant’s becoming entitled under s 119(1)(a) of the FW Act to be paid a redundancy payment as provided for by s 119(2) of the FW Act – the first respondent terminated the applicant’s employment for that reason and failed to pay the redundancy payment to which the applicant became entitled and thus contravened s 44(1) of the FW Act – whether the second and the fourth respondents were involved in the first respondent’s contravention of s 44(1) of the FW Act – the second respondent but not the fourth respondent was involved in first respondent’s contravention of s 44(1) of the FW Act. Legislation: Conciliation and Arbitration Act 1904 (Cth), s.5(1)
Fair Work Act 2009 (Cth), ss.44(1), 117(1), 119, 346, 539(1) , 550
Trade Practice Act 1965 (Cth), s.66B(2)(d)Cases cited: Amcor Limited v Construction Forestry Mining and Energy Union [2005] HCA 10
Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2010] FCA 284
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32
Construction Forestry, Mining and Energy Union v McCain Foods (Aust) Pty Ltd [2014] FWC 1923
Fair Work Ombudsman v A to Z Catering Solution Pty Limited & Anor (No.2) [2018] FCCA 2299
Fair Work Ombudsman v Spotless Services Australia Ltd [2019] FCA 9
General Motors-Holden’s Pty. Ltd. v Bowling (1976) 51 ALJR 235
Giorgianni v R (1985) 158 CLR 661
Gromark Packaging v Federated Miscellaneous Workers Union of Australia (1992) 46 IR 98
Jones v Department of Energy and Minerals (1995) 60 IR 304
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11
Mikasa (N.S.W.) Pty. Ltd. v Festival Stores (1972) 127 CLR 617
Milardovic v Vemco Services Pty Ltd (Administrators Appointed) [2016] FCA 19
R v The Industrial Commission of South Australia; Ex Parte Adelaide Milk Supply Co-operative Limited (1977) 16 SASR 6
Quality Bakers Australia Ltd v Goulding (1995) 60 IR 327Division: Fair Work Number of paragraphs: 123 Date of hearing: 9 & 10 August 2021 Place: Sydney Counsel for the Applicant: Mr I Latham, by video Solicitor for the Applicant: Gillis Delaney Lawyers Counsel for the Respondents: Mr M Seck, by video Solicitor for the Respondents: Barry.Nilsson. Lawyers ORDERS
SYG 1352 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SCOTT WILLIAM SYMONS
Applicant
AND: PAPERLESS WAREHOUSING PTY LIMITED ACN 000 800 617
First Respondent
MATTHEW JOHN VERCOE
Second Respondent
PAUL ANDREW FINK
Fourth Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
21 FEBRUARY 2022
THE COURT DECLARES THAT:
1.The first respondent contravened s 44(1) of the Fair Work Act 2009 (Cth) (FW Act) by failing to pay to the applicant the redundancy pay to which the applicant became entitled under s 119(1)(a) of the FW Act on 22 November 2019 when the first respondent terminated the applicant’s employment because the first respondent no longer required the job the applicant had been doing to be done by anyone.
2.The second respondent was involved in the first respondent’s contravention of s 44(1) of the FW Act and for that reason is taken to have contravened s 44(1) of the FW Act.
THE COURT ORDERS THAT:
3.The proceeding be listed at 9:30 am on 3 March 2022 for directions in relation to penalty, and to hear submissions on other orders that should be made to give effect to the reasons for judgment on the basis of which declarations 1 and 2 have been made.
4.The claims for relief made against the fourth respondent are dismissed.
5.The fourth respondent has liberty to apply on the question of costs, such liberty to be exercised by no later than 21 March 2022.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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 applicant, Mr Symons, claims that on 22 November 2019 the first respondent (PW) terminated his employment as general manager because PW no longer required the job Mr Symons then performed as general manager to be done by anyone and, for that reason, PW became liable under s 119(1)(a) of the Fair Work Act 2009 (Cth) (FW Act) to pay to Mr Symons “redundancy pay” as provided for by s 119(2). Mr Symons further claims that PW failed to pay him the redundancy pay to which he became entitled and, for that reason, PW contravened a provision of the National Employment Standards and, therefore, s 44(1) of the FW Act; and that the second respondent, Mr Vercoe, and the fourth respondent, Mr Fink, were involved, within the meaning of s 550(2) of the FW Act, in PW’s contravention of s 44(1) of that Act and, because of s 550(1), are each taken to have contravened s 44(1) of the FW Act.[1]
[1] Ms Elizabeth Vercoe was initially named as a third respondent but she was removed as a party.
PW accepts it terminated Mr Symons’ employment, but it denies it did so because it no longer required the job Mr Symons then performed to be done by anyone; and, for that reason, it denies it became liable to pay Mr Symons any redundancy pay. PW says it terminated Mr Symons’ employment because the relationship between Mr Symons and Mr Vercoe, who was then a director of PW and its acting chief executive officer (CEO), had deteriorated to the extent it was no longer workable; Mr Symons had failed to adequately perform his duties; and, in any event, Mr Vercoe terminated Mr Symons’ employment to give effect to the wishes his father (Mr Vercoe senior) conveyed to Mr Vercoe when Mr Vercoe senior was PW’s nominal CEO and principal shareholder. PW further says that, at the time it terminated Mr Symons’ employment, it intended to employ a person to do the job Mr Symons had been doing, but a number of circumstances prevented PW from fulfilling that intention.
The principal questions I consider in these reasons for judgment, therefore, are whether, when it terminated Mr Symons’ employment, PW no longer required the job Mr Symons did as general manager to be done by anyone and, if so, whether PW terminated Mr Symons’ employment because it no longer required any person to do the job Mr Symons did as general manager. For reasons that will appear later, the determination of these questions largely turns on the correct identification of the job Mr Symons was doing as general manager immediately before PW terminated his employment.
I will first set out the evidence in narrative form, and make some findings on the basis of that evidence. Unless the context suggests otherwise, unqualified statements of fact are to be taken to reflect my finding of the fact stated. Next, I will consider the meaning of s 119(1)(a) of the FW Act. I will then consider whether PW contravened s 119(1)(a) of the FW Act and, if so, whether Mr Vercoe or Mr Fink or both were involved in such contravention.
EVIDENCE AND SOME FINDINGS
PW’s business
PW was formed in 1992 to exploit a warehouse software management system it owned by making it available to customers who operate warehouses, and to train customers in the use of the software.[2] This constituted PW’s business for up to at least some time after PW terminated Mr Symons’ employment.
[2] 09.08.2021 T66.20
The original shareholders and directors of PW were Mr Vercoe senior, Mr Gerard Macreadie, and Mr Warren Notley.[3] Mr Notley passed away in May 2015, and Mr Macreadie retired in June 2015. In May and June 2015 Mr Vercoe acquired their shares in PW.[4] Mr Vercoe senior was the moving force behind PW’s business until he passed away in October 2019.
[3] Affidavit S W Symons 13.08.2020, [3], [4]; affidavit M J Vercoe 20.05.2021, [13]
[4] Affidavit M J Vercoe 20.05.2021, [15]; affidavit M Tzirtzilakis 20.05.2021, [4], annexure MXT-1
Mr Symons’ employment with PW
On about 8 May 1998 Mr Symons commenced employment with PW as an “Implementation Consultant”. At that time around 10 to 12 persons, including the directors, worked in PW’s business.[5] As implementation consultant Mr Symons trained employees in the use PW’s software, and undertook “go-live” support of clients in their use of PW’s software.
[5] Affidavit S W Symons 13.08.2020, [5]
In about 2000 or 2001 PW employed another two or three implementation consultants, and they reported to Mr Symons. By that time Mr Symons occupied the position of operations manager. [6]
[6] Affidavit S W Symons 13.08.2020, [9]
In about 2007 or 2008 PW appointed Mr Symons general manager.[7]
[7] Affidavit S W Symons 13.08.2020, [12]
Mr Vercoe joins PW
In February 2010 Mr Vercoe was appointed chief information officer of PW. In that role Mr Vercoe focused on PW’s information technology department and capabilities.[8] In 2015 Mr Vercoe was appointed chief financial officer.
[8] Affidavit M J Vercoe 20.05.2021, [8], [9]
July 2017 – Mr Symons signs employment contract
On about 1 July 2017 Mr Symons signed an employment contact (Employment Contract) which described his title as “Executive Manager of Sales and Marketing”. Although the Employment Contract describes Mr Symons’ position as “Executive Manager of Sales and Marketing”, on the pleadings it is agreed that Mr Symons’ held the position of general manager.[9]
[9] Affidavit of S W Symons 13.08.2020, [18], [19]
Mr Symons’ duties and responsibilities
There are a number of items of evidence that are relevant to identifying the duties and responsibilities attached to Mr Symons’ employment with PW immediately before PW terminated his employment.
(a)In his affidavit of 15 September 2020 Mr Vercoe says:[10]
[10] Affidavit M J Vercoe 15.09.2020, [5]
The Applicant was employed as a “General Manager - Sales and Marketing”. The Applicant’s duties consisted of, among other things, managing new client acquisitions; managing existing client relationships; managing the engagement of major projects with existing clients; overseeing marketing strategies; inducting and training sales staff; assisting with closing sales; obtaining client agreements to proceed with major projects and raising the profile of the First Respondent as a premium WMS solutions provider.
(b)In his affidavit of 20 May 2021 Mr Vercoe says that Mr Symons held the position of “General Manager – Sales and Marketing” for approximately 12 years. The person occupying that position would report directly to the managing director and CEO of PW. There were other positions in PW’s business “with similar reporting duties to” the managing director and CEO of PW, these being the “Chief Financial Officer”, the “Chief Technical Officer (Systems Manager)”, and the “Chief Operating Officer (Operations Manager)”. Mr Vercoe says that these positions, including “General Manager – Sales and Marketing,” “are senior positions” on which “the Managing Director and CEO rely . . . to receive direct reports . . . to manage the business”.[11] Mr Vercoe also said that Mr Symons’ position “involved leading the Sales and Marketing department”.[12] There may be some doubt about Mr Vercoe’s evidence that PW had a position known as “Chief Operating Officer (Operations Manager)”. As I note later, Mr Mannion has given evidence, which I accept, that in October 2019 Mr Vercoe senior requested Mr Mannion assume the role of chief operating officer shortly before PW terminated Mr Symons employment; and the position Mr Vercoe senior requested Mr Mannion assume was a new role.[13]
[11] Affidavit M J Vercoe 20.05.2021, [30]-[33]
[12] Affidavit M J Vercoe 20.05.2021, [18]
[13] 09.08.2021 T35.30. “It was a non-existent role. It was being created for the first time. No one had ever been the COO at that point.”
(c)In evidence given under cross-examination Mr Vercoe said that Mr Symons’ role was General Manager of Sales and Marketing; and that Mr Symons “was the primary manager for the sales and marketing functions within” PW.[14]
[14] 09.08.2021 T58.5
(d)There is the Employment Contract. [15] Mr Symons says the contract he signed did not contain any job descriptions; and it did not identify the duties Mr Symons was required to perform.[16] That is not correct. The Employment Contract provided that Mr Symons’ basic functions were to manage new client acquisitions, manage existing client relationships, manage the engagement of major projects with existing clients, and oversee marketing strategies and the execution of such strategies. The Employment Contract also provided that Mr Symons’ responsibilities were to induct and train sales persons, assist with closing sales, obtain client agreements to proceed with major projects, position PW as a reliable and valued business partner and solutions provider, ensure PW got value for its marketing investments, and raise PW’s profile as the premium “WMS” solutions provider.
[15] Affidavit M J Vercoe 20.05.2021, [21]; annexure “MJV-2”
[16] Affidavit S W Symons 13.08.2020, [18]
(e)In his affidavit Mr Symons says he reported to PW’s board, and every other employee reported to him. Mr Symons says he was responsible for: [17]
[17] Affidavit S W Symons 13.08.2020, [15]
(i)sales and marketing;
(ii)managing high level client and customer relationships;
(iii)direct supervision of the operations managers;
(iv)acting as “project champion” for all major client projects;
(v)the overall management of PW’s employees, including software developers, implementation consultants, logistic consultants, and (until 2017) employees responsible for collecting accounts receivable;
(vi)overseeing a 24 hour per day, 7 days per week, support service for customers; and
(vii)the complete operations of the business, including the training of implementation consultants, “go-live support”, and “software development”.
(f)In evidence given under cross-examination Mr Symons said he ran PW’s business “but for the financial and accounting side on a day-to-day basis”.[18]
(g)In evidence given under cross-examination, Mr Mannion said PW had a small leadership team, so there was not one person in particular employees reported to; Mr Symons was Mr Mannion’s “direct line”, but on occasions Mr Mannion reported to Mr Vercoe senior and the other directors, Mr Macreadie, and Mr Notley; PW’s functions were spread across various managers within the senior leadership team, and a lot of the different departments within PW were spread across a number of people, so that managers would get involved with many different departments at the same time; Mr Symons not only had a “sales and marketing remit” but he also had responsibility for parts of PW’s operations, in particular software development; Mr Mannion saw Mr Symons in the general manager role “as having a number of responsibilities overarching”; he was “in charge of most of . . . the tasks that were required within” PW, so that Mr Mannion reported to Mr Symons “with anything that was critical and of importance within the operations role, and likewise . . . it was the same with software and development”.[19] For reasons I give later, I find that Mr Mannion was a witness of credit on whose evidence I can rely with confidence.
(h)There is the evidence of Mr Fink. Mr Fink was appointed director on 9 October 2020 after he had acquired PW. When he commenced his role as director Mr Fink attempted to gain an understanding of PW’s business “from reviewing the records”.[20] Under cross-examination Mr Fink gave the following evidence:[21]
Scott Symons was the General Manager and basically ran the company and had everybody reporting to him and I believe that at the time the – you know, the business was going along very successfully, understaffed if anything, and they – they – you know, you couldn’t – you couldn’t remove basically the key person and key face to the business, especially after John [Vercoe’s] demise, that he was almost the key man . . . .
[18] 09.08.2021 T19.19
[19] 09.08.2021 T33.10-T34.5
[20] Affidavit P A Fink 04.08.2021, [9]
[21] 09.08.2021 T77.20
2019 – Mr Vercoe appointed to various positions
On 28 March 2019 Mr Vercoe was appointed a director of PW, and on 21 May 2019 he was appointed company secretary. In July 2019 Mr Vercoe became acting CEO. This occurred because Mr Vercoe senior’s health was deteriorating.
By letter dated 2 October 2019 Mr Vercoe senior informed PW’s staff that, due to poor health, he decided to step down from his position as CEO, effective from 28 November 2019.[22] Mr Vercoe senior said he would remain in his position of chairperson of PW’s board, and still maintain an active role with the board. Mr Vercoe senior also said that he would recommend to the board that Mr Vercoe take over the role of CEO. Mr Vercoe senior passed away in October 2019.
[22] Affidavit M J Vercoe 20.05.2021, [27]; annexure “MJV-3”
On 28 November 2019 Mr Vercoe was appointed CEO of PW;[23] and his mother was appointed director after Mr Vercoe senior passed away.[24]
[23] Affidavit M J Vercoe 20.05.2021, [28]
[24] 09.08.2021 T35.15
Relationship between Mr Vercoe and Mr Symons
According to Mr Vercoe, he had a “very poor relationship with Mr Symons”, and that Mr Vercoe had “been threatened by” Mr Symons.[25] Mr Vercoe says that when he had “taken over” PW as director and CEO, he “needed to be able to rely on [his] team” and, in particular, he needed “to be able to work well with the General Manager – Sales and Marketing”. Mr Vercoe, however, could see “an incompatibility to work effectively with Mr Symons”, and their “working relationship was no longer compatible”.
[25] Affidavit M J Vercoe 20.05.2021, [50]
Mr Vercoe says this “stemmed from an incident three years prior” when Mr Symons “was highly intoxicated at a company function and made verbal threats to kill” Mr Vercoe and his family. Mr Vercoe said he reported this to Mr Vercoe senior, and also to Mr Kevin Mannion, who was then PW’s operations manager. Mr Vercoe was on the verge of “obtaining an AVO”, but Mr Vercoe senior dissuaded Mr Vercoe from doing so. Mr Vercoe “understand[s]” that Mr Vercoe senior directed Mr Symons to undergo counselling to address his behaviour.[26] Mr Vercoe also said that “thereafter” Mr Symons “stated on a number of occasions he resented opportunities given to” Mr Vercoe due to his relationship with Mr Vercoe senior, and Mr Vercoe’s “sense” was that Mr Symons “had considered he would take over the business” and Mr Vercoe’s presence in the business “was an obstacle to his progression”.[27]
[26] Affidavit M J Vercoe 20.05.2021, [52]-[56]
[27] Affidavit M J Vercoe 20.05.2021, [57]
Mr Symons was cross-examined about this part of Mr Vercoe’s evidence. Mr Symons said that “about five years ago” he had an altercation with Mr Vercoe at a pub. Mr Symons said he had an argument about Mr Vercoe “disregarding a lot of people”. It was a heated argument that occurred “at about 10 o’clock at night after . . . at least six hours of drinking”;[28] and both Mr Symons and Mr Vercoe were intoxicated. Mr Symons denied having made any death threats to Mr Vercoe or to his family, although he accepted he said “stupid” things like “I’ll punch you in the head”; [29] and he said both he and Mr Vercoe had made threats to each other.[30] Mr Symons accepted that, from a “personal point of view”, the altercation that occurred between him and Mr Vercoe five years ago, would not have set a very good tone for his relationship with Mr Vercoe.[31] Mr Symons said, however, that he maintained a professional relationship in the workplace: “we met, we had met weekly for years. He was on the executive team when his father was in control. We had met after when [Mr Vercoe] took over as CEO as part of normal management meetings each week”.[32]
[28] 09.08.2021 T21.15
[29] 09.08.2021 T22.30
[30] 09.08.2021 T22.45
[31] 09.08.2021 T23.10
[32] 09.08.2021 T24.5
Mr Vercoe was also cross-examined about the altercation. He accepted that “by prior” Mr Vercoe intended to say the altercation occurred three years before the day on which he terminated Mr Symons’ employment, namely “about five years ago”; he accepted that the incident occurred at a pub following a full day workshop with senior members of the management team that ended at around 5:30 pm; the incident occurred near 10:00 pm; that up to that time Mr Vercoe was drinking and, by the time of the incident he was “certainly over the legal limit to drive”, and “certainly intoxicated”, but he was aware of his surroundings and of what was happening, and he was able to walk without assistance back to Mr Vercoe senior’s house.[33]
[33] 09.08.2021 T55.25-T56.10
It is not necessary to make any more precise findings than that some three years before PW terminated Mr Symons’ employment, Mr Vercoe and Mr Symons, while intoxicated, were parties to a heated verbal altercation that occurred late in the evening at a pub after an all-day senior executive workshop. There is no evidence, and it has not been suggested, that any altercation, let alone one that approached the nature of the altercation at the pub, occurred at the workplace; and there is no evidence that Mr Vercoe’s and Mr Symons’ relationship at the workplace was anything other than professional.
Decision to terminate Employment Contract
There are a number of items of evidence that are relevant to assessing the reasons for which PW terminated Mr Symons’ employment.
Mr Vercoe’s affidavit of 20 May 2021
In his affidavit made on 20 May 2021 Mr Vercoe deposes he had three reasons for terminating Mr Symons’ employment: Mr Vercoe senior “had indicated he wanted to terminate Mr Symons [sic] employment prior to him passing away”; Mr Vercoe had “a very poor relationship with Mr Symons and [had] been threatened by him”; and the “Board had suggested employing someone with better skills”.[34] The following observations may be made about this part of Mr Vercoe’s evidence.
(a)Mr Vercoe does not say when Mr Vercoe senior instructed or requested Mr Vercoe, or otherwise expressed to Mr Vercoe a wish that Mr Vercoe terminate Mr Symons’ employment; nor does Mr Vercoe set out the effect of the words by which Mr Vercoe senior conveyed his instructions or desire that Mr Vercoe terminate Mr Symons’ employment. Further, Mr Vercoe’s evidence is silent about the reasons Mr Vercoe senior gave for such instruction or request. Mr Vercoe senior could have made the request either because he was not satisfied with Mr Symons’ performance or because he was of the view that the job Mr Symons performed was no longer required performed by any person.
(b)Mr Vercoe does not identify when “the Board” suggested employing someone with better skills, or the person or persons who were members of the board at the time the suggestion was made, or the effect of the words by which the person or persons who were board members conveyed the suggestion that PW employ a person with “better skills”.
(c)Mr Vercoe does not identify any incident in or outside of the workplace, other than the altercation that occurred at the pub three years before PW terminated Mr Symons’ employment, or any other matter, on the basis of which he deposed that he and Mr Symons had a very poor relationship.
[34] Affidavit M J Vercoe 20.05.2021, [50]
Mr Vercoe also deposes that he “could see there was a lack of effective leadership and the inability to manage [Mr Symons’] workload”; Mr Vercoe “could see [Mr Symons] was reluctant to learn new processes and skills to remain updated”, and Mr Symons’ “level of pay and expenses were also very substantial considering how little he brought in despite being General Manager Sales and Marketing”.[35] These are conclusions, but Mr Vercoe does not identify any particular fact or circumstance on which he has based these conclusions. For that reason alone I give no weight to Mr Vercoe’s conclusions. Further, they appear to be inconsistent with the contents of an email (to which I refer later) Mr Vercoe sent on 22 November 2019 to his sister, Ms Prue Vercoe, to be distributed to PW’s staff announcing Mr Symons’ departure from PW. Mr Vercoe there described Mr Symons as a “valued and long-term employee”, a “respected and well-liked member of the team”, a “huge believer in the company and [its] products”, and a person who “was instrumental in assisting the growth and character of the company and a great support to our Founder John Vercoe”. Mr Vercoe has not given evidence that he authorised an email containing these statements be sent in his name not believing the statements to be true.
[35] Affidavit M J Vercoe 20.05.2021, [60], [61]
Mr Vercoe’s affidavit of 30 July 2021
In his affidavit made on 30 July 2021 Mr Vercoe repeats the three reasons he identified in his affidavit of 20 May 2021 as the reasons he decided PW should terminate Mr Symons’ employment.[36] He repeats these three reasons, however, also to explain why he decided to terminate Mr Symons’ employment “before employing someone else to replace him in the position of General Manager Sales and Marketing”.[37] These three reasons, if accepted, are capable of explaining why Mr Vercoe decided to terminate Mr Symons’ employment. They are incapable, however, of explaining why Mr Vercoe decided to terminate his employment for these reasons before employing or at least without having taken any steps to identify a person who may be able to carry out the role of General Manager – Sales and Marketing.
[36] Affidavit M J Vercoe 30.07.2021, [4]
[37] Affidavit M J Vercoe 30.07.2021, [6]
Mr Vercoe also deposes that in August 2019 he prepared a draft termination letter in relation to Mr Symons’ employment. Mr Vercoe says he sought legal advice from Mr Tzirtzilakis, and “envisaged termination of Mr Symon’s [sic] employment occurring in September 2019”. To that end, at 12:14 pm on 20 August 2019 Mr Vercoe sent an email to Mr Tzirtzilakis asking that he “review the attached”. The “attached” was the following draft letter:[38]
Xx September 2019
RE: Letter of Termination
Dear Scott,
We wish to advise that the board has made the decision to terminate your employment with Paperless Warehousing Pty Ltd with immediate effect. We will be providing you with 6 weeks’ pay in lieu of the notice time period in the agreement. The basis of this termination is 13.1.1 of your employment Agreement; “The Company or Employee may terminate the employment relationship on the provision of 6 weeks' notice or other time by mutual agreement”.
This decision has not been entered lightly but we feel your performance in your current role has not been at a level consummate with your wage or expected deliverables.
We are also will [sic] to offer you an extra 8 weeks' pay in exchange for a deed of release in which you agree in the deed that you have no claims against PW in relation to your employment or termination. We would also be willing to provide you with a statement of service for your time and a reference based on your position and length of service with the company.
We want to thank you for your many years of service with the company. Your contribution to the growth and character of the company over many years will be well regarded into the future.
[38] Affidavit M J Vercoe 30.07.2021, [6]-[8], annexure “MJV-6”
In his email to Mr Tzirtzilakis Mr Vercoe said he would also get Mr Tzirtzilakis to “write up” a deed of release.
Mr Tzirtzilakis responded by email sent at 12:46 pm on 20 August 2019, attaching a marked-up version of the draft Mr Vercoe prepared, which was as follows:[39]
[39] Affidavit M J Vercoe 30.07.2021, [6]-[8], annexures “MJV-7”, “MJV-8”
Xx September 2019
Mr S Symonds [sic]
[Address]
RE:
Letter ofTermination of your Employment AgreementDear Scott,
We wish to advise that the B
board has made the decision to terminate your employment with Paperless Warehousing Pty Ltdwith immediate effect. In accordance with clause 13.1.1 of your Employment Agreement, wWe will be providing you with 6 weeks’ pay in lieu ofthenoticetime period in the agreement.The basis of this termination is 13.1.1 of your employment Agreement; “The Company or Employee may terminate the employment relationship on the provision of 6 weeks' notice or other time by mutual agreement”.This decision has not been
enteredtaken lightly but we feel your performance in your current role has not been at a level consummate with your wage or expected deliverables.WeThe Company is alsoarealso [sic]willprepared to offer you anextraadditional payment equal to 8 weeks' pay in exchange for you signingadeed of release in which you agreein the deedthat you have no claims against PW in relation to your employment or the termination of your employment. We would also be willing to provide you with a statement of service for your time and a reference based on your position and length of service with the company. Please advise us in writing if you agree to accept the Company’s offer and sign a deed, which we will prepare.Please also be aware that you have a number of post-employment obligations that you will continue to owe to the Company and we ask that you continue to observe those obligations faithfully.
We want to thank you for your many years of service with the company. Your contribution to the growth and character of the company over many years will be well regarded into the future.
Mr Tzirtzilakis concluded his email by stating that he would begin to prepare the deed and email it to Mr Vercoe by the afternoon, or by the following morning at the latest.
Mr Vercoe deposes that Mr Vercoe senior “passed away and this delayed the termination process”.[40] Mr Vercoe senior passed away in October 2019. Mr Vercoe does not explain how that event affected “the termination process” that Mr Vercoe had in mind on 20 August 2019 when he drafted a letter of termination dated September 2019, from which it may be inferred Mr Symons intended to terminate Mr Symons’ employment in September 2019.
[40] Affidavit M J Vercoe 30.07.2021, [13]
Evidence of Mr Tzirtzilakis
Mr Tzirtzilakis says that in around November 2019 Mr Vercoe had sought Mr Tzirtzilakis’ assistance to terminate the Employment Contract. Mr Tzirtzilakis asked Mr Vercoe “on what basis did [Mr Vercoe] want to terminate Scott [Symons]”. Mr Tzirtzilakis says he “went through the options” and he asked Mr Vercoe “whether it was due to a redundancy”.[41] Mr Tzirtzilakis continued:[42]
I explained the process and the meaning of a redundancy, that you would be getting rid of the position (in this instance of General Manager Sales and Marketing) and not necessarily the person. From our conversation I understood the role was required, and it wasn’t a redundancy. Rather the sole basis was John Vercoe’s instructions and that Matthew Vercoe and the Applicant were not able to work together.
[41] Affidavit M Tzirtzilakis 20.05.2021, [13]
[42] Affidavit M Tzirtzilakis 20.05.2021, [14]. In response to an objection I ruled that I would read the last two sentences of this part of Mr Tzirtzilakis’ evidence as evidence of his understanding, and not as evidence of the object of his understanding.
Mr Tzirtzilakis further deposed as follows:[43]
Matthew Vercoe had explained to me that the Applicant had been in the company for over 20 years, however he was hardly present and no one would know where he was, the Applicant would have a few legacy clients he would hang onto however, those clients were getting worn out.
I had suggested that should there be a termination, it would be best if it was subject to a deed of release and an additional financial amount would be added to ensure an amicable parting of ways.
[43] Affidavit M Tzirtzilakis 20.05.2021, [16], [17]
There are a number of difficulties with Mr Tzirtzilakis’ evidence:
(a)Mr Tzirtzilakis does not set out the effect of the words he recalls Mr Vercoe used on the basis of which Mr Tzirtzilakis deposes he understood that Mr Symons’ role “was required” and the termination of Mr Symons’ employment “wasn’t a redundancy”.
(b)Mr Tzirtzilakis does not set out the effect of the words he recalls Mr Vercoe used on the basis of which Mr Tzirtzilakis deposed that the “sole basis” on which Mr Vercoe had decided to terminate Mr Symons’ employment was “John Vercoe’s instructions and that Matthew Vercoe and the [Mr Symons] were not able to work together”.
(c)Mr Tzirtzilakis has not annexed to his affidavit, or otherwise referred to, any file note of the conversation he says he had with Mr Vercoe. Nor has he annexed, or otherwise refer to, any fee note or time record that refers to Mr Tzirtzilakis giving advice to Mr Vercoe. Mr Tzirtzilakis does not say whether he has in his possession any file note of the conversation to which he deposes, or whether he has issued any fee note, or has made any time record, that refers to the conversation with Mr Vercoe to the effect he deposed.
(d)Mr Vercoe does not give evidence that he had a conversation with Mr Tzirtzilakis to the effect Mr Tzirtzilakis deposes.
(e)Mr Tzirtzilakis’ evidence that it was in or around November 2019 that Mr Vercoe sought his assistance is not consistent with the evidence Mr Vercoe gives in his affidavit of 30 July 2021. As I have already shown, in that affidavit Mr Vercoe annexes emails that passed between Mr Vercoe and Mr Tzirtzilakis on 20 August 2019 in which Mr Vercoe requests Mr Tzirtzilakis to settle, and Mr Tzirtzilakis settles the letter of termination Mr Vercoe drafted. No evidence has been given by either Mr Tzirtzilakis or Mr Vercoe that attempts to reconcile the email exchanges on 20 August 2019 in relation to the termination of Mr Symons’ employment, and Mr Tzirtzilakis deposing that it was in or around November 2019 that Mr Vercoe approached him for advice in relation to the termination of Mr Symons’ employment.
(f)As I show later, Mr Vercoe annexes to one of his affidavits a letter dated 28 November 2019 addressed to Mr Symons the purports to terminate Mr Symons’ employment. The letter differs from the draft letter Mr Vercoe sent to Mr Tzirtzilakis on 20 August 2019. In his affidavit Mr Tzirtzilakis says he is “aware” that “following the meeting on 22 November 2019 a letter of termination was prepared by Matthew Vercoe to be sent” by PW to Mr Symons.[44] There is no evidence that attempts to explain when or why the letter dated 28 November 2019 was prepared, given the draft letter Mr Vercoe had sent to Mr Tzirtzilakis on 20 August 2019.
[44] Affidavit M Tzirtzilakis 20.05.2021, [30], [31]
Given these difficulties I do not give any credit to Mr Tzirtzilakis’ evidence.
Mr Mannion’s evidence
In his affidavit Mr Mannion says he commenced employment with PW in November 2000 as a logistics consultant. He reported to Mr Symons, who was then the operations manager. In around 2007 Mr Mannion became a member of the senior leadership team at the time Mr Symons became general manager.[45] Mr Mannion further deposes that about a week or two before Mr Vercoe senior passed away, Mr Vercoe senior telephoned Mr Mannion and asked Mr Mannion to take on the role of chief operating officer. Mr Vercoe senior also said that he still needed to talk to “Scott [Symons] and Brian [Campbell]”.[46]
[45] Affidavit K Mannion 05.08.2021, [2]-[4]
[46] Affidavit K Mannion 05.08.2021, [6]
In evidence given under cross-examination, Mr Mannion said he did not understand that the role of chief operating officer formed part of the role Mr Symons was performing; Mr Mannion said the role of chief operating officer “was a non-existent role”; it “was being created for the first time”; and “[n]o one had ever been the COO at that point”. Mr Mannion said he was “unsure of the role at that stage”; “it was never explained to [Mr Mannion] what that role would take”, but Mr Vercoe senior explained that Mr Mannion would “just do what [Mr Mannion] would continue to do”.[47] Mr Mannion said being appointed to chief operating officer did not come with a pay rise; it was “a promotion in name only”. Mr Mannion assumed that, because of the new role, “there was a new hierarchy that was going to be formed at that time”.[48] Mr Mannion accepted the position of chief operating officer.[49]
[47] 09.08.2021 T35.25-T35.45
[48] 09.08.2021 T36.25
[49] 09.08.2021 T36.40
About two weeks after Mr Vercoe senior’s death Mr Vercoe said to Mr Mannion words to the effect that he was “going to get rid of Scott [Symons]”. Mr Mannion said to Mr Vercoe that that was unwise, and suggested Mr Vercoe should “think very carefully about that”.[50] Mr Mannion further says that over “the next couple of weeks” he had “a number of conversations with” Mr Vercoe in which Mr Vercoe said words to the effect of “Scott doesn’t do much”, and that “I’ll be able to absorb most of his role”, and “[w]e really don’t need anyone in Scott’s position”. Mr Mannion said to Mr Vercoe that he should not expect Mr Mannion to do “any of it”, that is, any of Mr Symons’ role, because he had enough on his plate.[51] Mr Mannion also says that in those conversations Mr Vercoe said things which suggested that removing Mr Symons was something that Mr Vercoe’s mother and sister wanted, and Mr Vercoe went so far as to suggest “that it was one of the things his father had said to him in the last weeks of his life”.[52]
[50] Affidavit K Mannion 05.08.2021, [8]
[51] Affidavit K Mannion 05.08.2021, [9]
[52] Affidavit K Mannion 05.08.2021, [10]
In evidence given under cross-examination Mr Mannion accepted that Mr Vercoe told him that one of Mr Vercoe senior’s wishes was to get rid of Mr Symons; and he also accepted Mr Vercoe told him words to the effect that it was not only Mr Vercoe, but his sisters who had the same wish.[53] In response to counsel’s question that Mr Vercoe did not tell Mr Mannion the reasons why Mr Vercoe was going to get rid of Mr Symons, Mr Mannion said:[54]
Right. But he never said to you the reasons why he was getting rid of Mr Symons; right? --- Well, he did. He said that he didn’t feel that he added any value to the company. He felt that other people could fulfil his role as in, you know, some of – some of the things that he did and I explained that Scott did a number of things that no one else did and that no one would be able to take up that role because he didn’t – he did things that nobody else in that company had the talent to do, and that was his networking ability and the way that he kept the trust of all of the customers.
[53] 09.08.2021 T37.20-T37.30
[54] 09.08.2021 T38.25
Mr Mannion was also asked about his perception of the relationship between Mr Symons and Mr Vercoe. Mr Mannion said he had heard “there was an argument one night many years ago”, and that the relationship between Mr Vercoe and Mr Symons in the workplace was not the best relationship, “but they seemed to get along when they needed to for business”.[55]
[55] 09.08.2021 T40.45
Mr Vercoe’s affidavit of 7 August 2021
In this affidavit Mr Vercoe responds to Mr Mannion’s affidavit. He says that “it was the intention of [Mr Vercoe senior] to dismiss Mr Symons himself” but, due “to his failing health and frail state”, Mr Vercoe said “not to”, and that Mr Vercoe “would take care of it”.[56] Mr Vercoe denies he told Mr Mannion that Mr Symons “doesn’t do much”, and that Mr Vercoe would “absorb most of his role”, or that “[w]e really don’t need anyone in Scott’s position”. Mr Vercoe said he told Mr Mannion that Mr Symons “is toxic to the company; he is lazy and does not do the job”; that PW needs “someone with better skills, experience and someone who is better able to present themselves to senior managers of large corporates without referring to the product as being not very pretty but like a diesel truck which just keeps going”.[57]
[56] Affidavit M J Vercoe 07.08.2021, [3]
[57] Affidavit M J Vercoe 07.08.2021, [5]
Other evidence
Also relevant to determining the reason or reasons for which Mr Vercoe decided to terminate Mr Symons’ employment are the events that occurred after PW terminated Mr Symons’ employment, as set out below.
Termination of Mr Symons’ employment
According to Mr Symons, whose evidence on this point I accept, about two weeks before 22 November 2019 he received from Mr Vercoe a calendar invitation addressed to Mr Symons, Mr Mannion, and Mr Tzirtzilakis. The calendar invitation was headed “John’s Wishes and [D]irections for the Company”. Mr Symons accepted the invitation and, on 22 November 2019, he attended a meeting with Mr Vercoe, Mr Tzirtzilakis, and Mr Mannion. According to Mr Symons, Mr Tzirtzilakis said he was there to inform Mr Symons that his employment was being terminated, and that he was entitled to six weeks’ notice, as “per” the Employment Contract. Mr Symons asked on what grounds his employment was being terminated. Mr Tzirtzilakis said there “are no grounds for your termination. There’s been no misconduct. We just want to part ways”. Mr Tzirtzilakis said the “company intends to take a new direction”, and presented a deed Mr Tzirtzilakis said contained an offer to buy Mr Symons’ shares in PW for $100,000. Mr Mannion then took Mr Symons to his desk to collect his personal belongings, and escorted him off the premises.[58]
[58] Affidavit S W Symons 13.08.2020, [27]
Mr Vercoe and Mr Tzirtzilakis gave substantially similar accounts of the meeting. But there are two additions in each of their accounts. According to Mr Vercoe, [59] after he informed Mr Symons that PW terminated his employment, the following words were exchanged:
Mr Symons: You guys are fucking grubs, you can take your money and stick it. I know judges and barristers and you'll be hearing from me again soon you fucking arseholes. John [Vercoe] would never have done this.
Mr Tzirtzilakis: I am instructed that John wanted to terminate your employment but because of his cancer, he was unable to do so before passing away
[59] Affidavit M J Vercoe 15.09.2020, [6]
Mr Tzirtzilakis has given the following account:[60]
Based on my recollection, I said to the Applicant words to the following effect, “Scott, thank you for coming to this meeting. I have been instructed by Paperless to terminate your employment”.
The Applicant then responded, “what? What for? What have I done wrong?”
I then responded, “you haven’t done anything wrong, your employment is not being termination [sic] for cause but under the clause in your employment agreement which permits the employer to terminate on notice, in the same way as that agreement permits you to resign by giving notice”.
The Applicant then said “this is a joke. You’re a dog, John would never have done this".
I then replied words to the effect of “John was the one who wanted to do this but did not have the heart to, so he had asked Matthew to”.
The Applicant then asked “what about my entitlements?”
I said words to the effect of, “Your entitlements would be paid to you and we also have a deed of release to which we would add an additional $50,000.00 to assist you.”
The Applicant then said, “I don’t want to see it. I don’t care about that. I have friends who are barristers, and this is not the last you’ll hear of me”.
[60] Affidavit M Tzirtzilakis 20.05.2021, [21]-[28]
In none of the accounts of the meeting of 22 November 2019 is there a suggestion that Mr Vercoe or Mr Tzirtzilakis handed or attempted to hand to Mr Symons any letter purporting to terminate Mr Symons’ employment. Paragraph 6 of the amended statement of claim alleges PW terminated Mr Symons employment on 22 November 2019 and under the heading “Particulars” states: “Letter First Respondent to the Applicant 22 November 2019”. There is no letter dated 22 November 2019 in evidence. What is in evidence is what Mr Vercoe, in his affidavit of 20 May 2021, describes as a “copy of Mr Symons’ termination letter dated 28 November 2019”.[61] The letter is as follows:
On behalf of Paperless Warehousing Pty Ltd (Company), I hereby give you notice of the termination of your employment.
In accordance with clause 13.1.1 of your Employment Agreement, the Company will pay you an amount equal to 6 weeks' salary in lieu of notice as well as your accrued employment entitlements.
Separately, we enclose a Deed or Release which will need to be executed by you within 7 days of the date of this letter. Please seek legal advice in relation to your rights and entitlements under this Deed. The Deed represents an offer by the Company to pay you an additional settlement sum in exchange for certain releases and to purchase your shares in Paperless Warehousing Nominees Pty Ltd. If you do not sign the Deed within the requested timeframe, the Company's offer to pay you the additional settlement sum will lapse.
Scott, the decision to terminate your employment has not been taken lightly and has been deliberated upon for many months. On behalf of the Company, I want to thank you for your many years of service as well as your contribution to the growth and character of the Company's business. I wish you all the very best going forward into the future.
[61] Affidavit M J Vercoe 20.05.2021, [68]; annexure “MJV-5”
The copy of the letter is not signed by Mr Vercoe and Ms Elizabeth Vercoe, being the persons the letter identifies as signatories. The deed to which the letter refers is not annexed to Mr Vercoe’s affidavit. There is no evidence Mr Vercoe and Ms Elizabeth Vercoe signed the letter; there is no evidence the letter was given or sent to Mr Symons, and if so, when and how; and there is no evidence of who, and the circumstances in which, the letter, bearing a date 6 days after Mr Vercoe purported to terminate Mr Symons’ employment, was prepared. Further, the letter does not specify the day of the termination, as would be required by s 117(1) of the FW Act. These are not matters that were raised at the hearing; but I cannot leave unremarked a letter introduced into evidence that on its face is inconsistent with PW having terminated Mr Symons on 22 November 2019.
Announcement to staff of Mr Symons’ departure
According to evidence Mr Vercoe gave in cross-examination, after Mr Symons left the premises Mr Mannion met with Ms Prue Vercoe to work with her on how to announce Mr Symons’ departure to PW’s staff.[62] That resulted in Ms Prue Vercoe at 11:11 am on 22 November 2019 sending to Mr Mannion an email setting out an announcement to PW’s staff. As I noted earlier in these reasons, Ms Prue Vercoe is the sister of Mr Vercoe who, according to Mr Symons, joined PW about 12 months before PW terminated Mr Symons’ employment. She performed a part time marketing role, and did so remotely from Mr Vercoe senior’s unit in Noosa.[63] The email Ms Prue Vercoe sent to Mr Mannion is as follows:[64]
[62] 09.08.2021 T63.15
[63] 09.08.2021 T20.10
[64] Affidavit M J Vercoe 07.08.2021, [13], annexure “MJV-12”
From: Prue Vercoe
Sent: Friday, 22 November 2019 11:11 AM
To: Kevin Mannion <. . . .>
Subject: email to staff
Hi Kevin,
See below. Thanks, Prue
Dear Paperless Warehousing staff,
We are writing to confirm the departure of valued and long-term employee Scott Symons, effective today 22 November 2019.
In the New Year Paperless Warehousing will be moving in a different direction. As a result, the role of General Manager Sales and Customer Relations is no longer needed. Until a new role is created, Scott’s responsibilities will be divided among the remaining members of the team. Please speak with your manager or one of the executive team if you have any questions.
Since Scott joined the company in May of 1998, he has been a respected and well-liked member of the team. As an employee he was a huge believer in the company and products, he was instrumental in assisting the growth and character of the company, and a great support to our Founder John Vercoe.
We wish him good luck for the future and bid him a happy farewell.
Sincerely,
Directors and Executive team at Paperless Warehousing
At 12:02 pm on 22 November 2019 Ms Prue Vercoe sent to Mr Vercoe the same draft of the announcement as she had sent to Mr Mannion.[65] At 12:25 pm on 22 November 2019 Mr Vercoe responded to Ms Prue Vercoe’s email as follows:[66]
[65] Affidavit M J Vercoe 07.08.2021, [14]; annexure “MJV-13”
[66] Affidavit M J Vercoe 07.08.2021, [18]; annexure “MJV-13”
From: Matthew Vercoe
Sent: Friday, 22 November 2019 12:25
To: Prue Vercoe
Subject: RE: email to staff
How [sic] this:
Dear Paperless Warehousing staff,
I am writing to confirm the departure of valued and long-term employee Scott Symons, effective today 22 November 2019. Since Scott joined the company in May of 1998, he has been a respected and well-liked member of the team. As an employee he was a huge believer in the company and products, he was instrumental in assisting the growth and character of the company and a great support to our Founder John Vercoe.
Paperless Warehousing needs to expand and push further into the logistics and warehousing industries both here but more importantly abroad. As a result, we need to look to new people who can assist us with this journey; to take Paperless to the next level and help us grow the company. There will be a bit of a transition process to go through with Scott’s departure but I am excited for the future and look forward to involving you all further in our plans.
We wish Scott good luck for the future and bid him a happy farewell.
Mr Vercoe gives the following evidence about the email he sent to Ms Prue Vercoe:[67]
I disagreed with Ms Vercoe’s wording in the First Draft as it did not reflect the termination situation. It rather added in a redundancy of Mr Symon’s role which was not the reason for termination. I understand Ms Vercoe did so to assist the optics of Mr Symons’ departure from Paperless, likely due to his long tenure with Paperless.
[67] Affidavit M J Vercoe 07.08.2021, [16]
Mr Vercoe does not say he had any conversation with Ms Prue Vercoe about the email. There is therefore no basis for inferring that Mr Vercoe obtained his understanding that Ms Prue Vercoe drafted the email “to assist the optics” from anything Ms Prue Vercoe said to Mr Vercoe; and Mr Vercoe otherwise does not identify the basis on which he arrived at his understanding. Further, Mr Vercoe did not in the email he sent to Ms Prue Vercoe at 12:25 pm on 22 November 2019 state that any statement in her draft email was incorrect, or identify what he now says was his intention, namely, to find another person to perform the job Mr Symons performed as general manager. If, as Mr Vercoe deposes in an affidavit he made almost two years after he received the draft email from Ms Prue Vercoe, he “disagreed” with any statement made in the draft email, it is reasonable to expect that he would have communicated his disagreement with Ms Prue Vercoe in some way, and he would also have explained to Ms Prue Vercoe what Mr Vercoe now deposes was his true intention, namely, to find another person to perform the job Mr Symons performed. I therefore do not accept that on reading the draft email to PW’s staff Mr Vercoe formed the understanding that Ms Prue Vercoe drafted the email in the manner she did “to assist the optics”.
One rational inference that is available to be drawn from the email Ms Prue Vercoe drafted is that she understood that Mr Symons’ role was no longer needed, and that, until a new role were to be created, his responsibilities were to be divided among the remaining members of the team. Further inferences, however, are available to be drawn. I have already noted that in evidence given under cross-examination Mr Vercoe said that after the meeting on 22 November 2019 in which Mr Vercoe terminated Mr Symons’ employment, Mr Mannion met with Ms Prue Vercoe “to work with [her] on how to announce” Mr Symons’ departure to PW’s staff.[68] That is a basis for inferring that the email Ms Prue Vercoe drafted was drafted after discussing with Mr Mannion what was to be communicated to PW’s staff about Mr Symons’ departure from PW; and that the email reflected not only Ms Prue Vercoe’s understanding, but also Mr Mannion’s understanding of the reasons for which Mr Vercoe decided to terminate Mr Symons’ employment. That, in turn, would be a reason for preferring Mr Mannion’s evidence to Mr Vercoe’s evidence that Mr Vercoe had told Mr Mannion that Mr Vercoe would “be able to absorb most of [Mr Symons’] role”, and “[w]e really don’t need anyone in Scott’s position”, because it would be open to find that Mr Mannion’s understanding of the reason for which Mr Vercoe had decided to terminate Mr Symons’ employment was based on what Mr Vercoe told Mr Mannion.
[68] 09.08.2021 T63.15
It was put to Mr Vercoe in cross-examination that the draft email Ms Prue Vercoe prepared was true; and that he amended the draft Ms Prue Vercoe had sent to him, because it did not reflect the true purpose behind his decision to terminate Mr Symons’ employment, but because Mr Vercoe was scared that the email would be used against him.[69] Mr Vercoe did not accept this was the case. It is unnecessary to make a finding about this.
[69] 09.08.2021 T64.25
Also relevant are the “Staff Notes” Mr Vercoe prepared in relation to a staff meeting on 28 November 2019.[70] The notes record that “[c]hange is hard”, that as “a group going forward, I want to draw on the experience and the skills [of] everyone in the company”, and that “[w]e will also be looking to restructure our operations but this will be driven by all of you”. Mr Vercoe has not given any evidence of what he understood by the expression “looking to restructure our operations”. I return to this later in these reasons.
[70] Affidavit M J Vercoe 30.07.2021, [19]; annexure “MJV-10”`
Events after 22 November 2019
In paragraph 11 of his affidavit made on 5 August 2021 Mr Mannion deposes as follows:[71]
After Scott was terminated and until I left Paperless in July 2020, no-one from Paperless was appointed to Scott’s role either permanently or on a temporary basis until a replacement could be found. No one from Paperless was, as far as l am aware, formally asked to take on the tasks and duties which Scott had formerly undertaken. Senior employees, such as Brian Campbell, Grant Smith and myself, did attend to some things that were previously part of Scott's role, but only when these were business critical. However, Prue Vercoe, the sister of Matthew, did take up a part time role in marketing, although her capacity to fulfill the role at that time was not feasible as she had just not long before given birth and in addition to this was residing with, and caring for, her elderly mother.
[71] Affidavit K Mannion 05.08.2021, [11]
In paragraphs 12 and 13 of his affidavit, Mr Mannion said:
Both before and after Scott’s termination, Matthew and I had a number of discussions about the operational structure of Paperless. Matthew had a number of changes that he wanted to implement and made it clear to me that in his view the business did not require a ‘General Manager – Sales & Marketing’ position. I thought this was wrong. We also had differing views on a number of other plans Matthew had for Paperless.
After many conversations with Matthew about these issues I said to him “You think these changes will be good, but I think they will be ruinous for the business. We need to get an external perspective on this”. Matthew said words to the effect of “Alright, I’ll agree to that”.
In his affidavit made on 7 August 2021 Mr Vercoe responded to paragraph 11 of Mr Mannion’s evidence by referring to what he said in his affidavits of 20 May 2021 and 30 July 2021. Before I refer to what Mr Vercoe said in those affidavits, it is necessary first to refer to his affidavit of 15 September 2020, in which Mr Vercoe deposed as follows:[72]
The Applicant's role was not made redundant. After the termination of the Applicant’s employment I took over the role of “General Manager - Sales and Marketing” in addition to my existing role as Chief Executive Officer. The Applicant’s roles and responsibilities set out in paragraph 5 and in his Employment Agreement continued to be performed after his employment was terminated.
[72] Affidavit M J Vercoe 15.09.2020, [8]
In his affidavit of 30 July 2021 Mr Vercoe says something different. He there says that, after he terminated Mr Symons’ employment, he intended that PW look for another person “to take over Mr Symons’ position as General Manager – Sales and Marketing”, but that, “[i]n the interim the main duties of Mr Symons’ role were undertaken by Grant Smith, who was the lead sales and marketing person in Paperless after Mr Symons’ employment was terminated”. Mr Vercoe says he “performed a supervisory and advisory role to Mr Smith”;[73] “no one had been appointed to Mr Symons [sic] role” “due to Christmas approaching, and then unexpectedly, the Covid-19 pandemic in early 2020”; and Mr Smith “was acting in Mr Symons’ position”.[74] Mr Vercoe does not say why in his affidavit of 15 September 2020 he said he took over the role of “General Manager – Sales and Marketing”, and did not mention what he deposed to in his affidavit of 30 July 2021.
[73] Affidavit M J Vercoe 30.07.2021, [14]
[74] Affidavit M J Vercoe 30.07.2021, [15]
Mr Vercoe also responded to paragraphs 12-16 of Mr Mannion’s affidavit.[75] Mr Vercoe does not deny he had the discussions Mr Symons says he and Mr Vercoe had. In particular, Mr Vercoe does not deny that he had made it clear to Mr Mannion that in his view PW’s business did not require a “General Manager - Sales & Marketing” position. Nor does Mr Vercoe deny that Mr Mannion said to Mr Vercoe that “[w]e need to get an external perspective on this” and that Mr Vercoe agreed with Mr Mannion’s suggestion. Mr Vercoe only says that “we had engaged Jim Davidson of Oosh People Pty Ltd to conduct a review in or around February 2020, a few weeks after” Mr Vercoe returned from leave. That may be taken to be a reference to what Mr Vercoe had deposed in his affidavits of 20 May and 30 July 2021, the effect of which I now set out.
[75] Affidavit M J Vercoe 07.08.2021, [9]
On 14 February 2020 Mr Vercoe sent the following email to PW’s chief financial officer:[76]
If able; could you recommend any consultants which would be able to assist with a review of our operations in terms of organisational structure. I want to involve the staff and the management in the process.
I am essentially after a facilitator who could conduct some workshops and then present the combined findings to senior management and the board.
I would want to start this process in the next month or so.
[76] Affidavit M J Vercoe 30.07.2021, [22]; annexure “MJV-11”
According to Mr Vercoe, in around February 2020 PW engaged Jim Davidson of Oosh People Pty Ltd to conduct a review of PW’s “organisational processes and procedure to determine where improvements were required or would be beneficial”.[77] The PW “Organisational Structure dated June 2020 was one of the outcomes from the corporate review”. One of the improvements was to “draft job descriptions for positions in the business to ensure there was clarity, including the position of General Manager – Sales and Marketing”. The PW Organisational Structure is in evidence, and it includes as one of the five positions sitting under the CEO the position titled “Chief Customer Officer (GM Sales & Marketing)”.[78]
[77] Affidavit M J Vercoe 20.05.2021, [35]
[78] Affidavit M J Vercoe 20.05.2021, [37], [38], annexure “MJV-4”
Mr Vercoe says that on his return from holidays on 29 January 2020 he expected that the corporate review was to take place “with a four-week time frame [sic] and then the position of General Manager – Sales and Marketing job description would be finalised and the position advertised in March 2020”.[79] Mr Vercoe has given the following evidence why this did not occur:[80]
However, due to the Covid-19 pandemic in the beginning of 2020 and various government protocols restricting or adversely impacting on commercial activities, the position planned to be advertised was placed on hold. Due to the operational restrictions from the Covid-19 pandemic, it was going to be difficult to hire another person in the midst of the Covid-19 pandemic due to the uncertainty of the effects the pandemic was going to have on finding the right candidate.
There were measures undertaken to review staff isolating at home, and the pandemic and the lockdowns inhibited the ability to undertake a wide search and conduct a thorough interview process for the General Manager - Sales and Marketing position
I no longer have any access to Paperless Warehousing’s financial documents, but from my recollection, during the Covid-19 pandemic, all projects were stopped including one in Perth, one in Melbourne and one in Sydney due to staff not being able to attend any sites. This would have had a negative cash flow for these projects.
In July 2020, the company received a number of resignations of key personnel which greatly affected the company’s ability to perform. In late July the Board requested and I agreed to my resignation as CEO. The Board then decided to undertake a sale process to obtain any value from the company it was able for the shareholders so all internal projects were suspended.
[79] Affidavit M J Vercoe 20.05.2021, [41]
[80] Affidavit M J Vercoe 30.07.2021, [23]-[26]
In evidence given under cross-examination Mr Vercoe said that his vision was that PW were to expand and be taken overseas, and, for that purpose, PW needed a head of sales and marketing “with a bigger skill base . . . to take on those responsibilities”. Mr Vercoe agreed that PW did not “immediately advertise” the position Mr Symons had held; but Mr Vercoe said there were a number of reasons for this:[81]
By the time I had got back from annual leave and we were about to undertake the review, COVID then struck us and turned the business world totally upside down, so everything changed with COVID, unfortunately. It was always my intention that the position would have been filled, but I wanted to do it in a way which also conduits with doing organisational restructure in other areas of business, so we were able to do it all until one, one big movement as opposed to doing it piecemeal.
[81] 09.08.2021 T65.30
On 9 October 2020 Mr Fink acquired PW, and since that time he has been its sole director and secretary.[82]
[82] Affidavit P A Fink 04.08.2021, [2], [5]-[7]
SECTION 119
Section 119 of the FW Act provides as follows:
(1)An employee is entitled to be paid redundancy pay by the employer if the employee’s employment is terminated:
(a)at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or
(b) because of the insolvency or bankruptcy of the employer.
(2) The amount of the redundancy pay equals the total amount payable to the employee for the redundancy pay period worked out using the following table at the employee’s base rate of pay for his or her ordinary hours of work:
Redundancy pay period Employee’s period of continuous service with the employer on termination Redundancy pay period 1 At least 1 year but less than 2 years 4 weeks 2 At least 2 years but less than 3 years 6 weeks 3 At least 3 years but less than 4 years 7 weeks 4 At least 4 years but less than 5 years 8 weeks 5 At least 5 years but less than 6 years 10 weeks 6 At least 6 years but less than 7 years 11 weeks 7 At least 7 years but less than 8 years 13 weeks 8 At least 8 years but less than 9 years 14 weeks 9 At least 9 years but less than 10 years 16 weeks 10 At least 10 years 12 weeks
It has been said that s 119(1) of the FW Act is a statutory definition of the notion of “redundancy” that had been adopted by industrial tribunals and incorporated into awards;[83] and the notion of redundancy that was adopted[84] is that which was explained in the judgments of Bray CJ and Bright J in R v The Industrial Commission of South Australia; Ex Parte Adelaide Milk Supply Co-operative Limited.[85] Bray CJ said:[86]
[T]he concept of redundancy in the context we are discussing seems to be simply this, that a job becomes redundant when the employer no longer desires to have it performed by anyone. A dismissal for redundancy seems to be a dismissal, not on account of any personal act or default of the employee dismissed or any consideration peculiar to him, but because the employer no longer wishes the job the employee has been doing to be done by anyone.
[83] Creighton & Stewart’s Labour Law Sixth edition, The Federation Press 2016, at [22.54]
[84] Amcor Limited v Construction Forestry Mining and Energy Union [2005] HCA 10, at [43], [54]; Milardovic v Vemco Services Pty Ltd (Administrators Appointed) [2016] FCA 19, at [267]
[85] R v The Industrial Commission of South Australia; Ex Parte Adelaide Milk Supply Co-operative Limited (1977) 16 SASR 6
[86] R v The Industrial Commission of South Australia; Ex Parte Adelaide Milk Supply Co-operative Limited (1977) 16 SASR 6, at page 8
Bright J said:[87]
The word “redundant” does not occur in the Act. In its industrial sense it is not defined in the Oxford Dictionary. The application which I have already set out attempts a definition for the purpose of the proposed award. A consideration of the cases leads me to think that the question of the redundancy of an employee is linked to the question of the continued utility of the job which he is performing. In other words it does not relate to the personal competence of the employee in the job which he is performing. If I am right in this, then in its widest form the concept of redundancy connotes that an employee becomes redundant whenever (and for whatever reason) his employer no longer desires to have performed the job which that employee was doing.
[87] R v The Industrial Commission of South Australia; Ex Parte Adelaide Milk Supply Co-operative Limited (1977) 16 SASR 6, at page 21
The notion of “redundancy” explained in these passages is directed to a “job”, where “job” has been held to mean a “collection of functions, duties and responsibilities entrusted, as part of the scheme of the employer’s organisation, to a particular employee”;[88] and it relates to a job an employer no longer “desires” or “wishes” to be done by anyone. But “redundancy” covers more than an employer’s no longer desiring or wishing that a job an employee has been doing not be done by anyone; “redundancy” extends to, and in fact its essential character consists of, the employer giving effect to that desire or wish by terminating the employment of the person who has been performing the job.[89] The notion of “redundancy”, therefore, consists of two elements: an employer’s desiring or wishing that a particular job that an employee had been doing not be done by anyone; and the employer giving effect to that desire or wish by terminating the employment of the person who has been performing the job. Stated another way, “redundancy” consists of an employer’s terminating the employment of a person who has been performing a job because the employer no longer desires or wishes the job to be done by anyone.
[88] Jones v Department of Energy and Minerals (1995) 60 IR 304, at page 308
[89] This is not the only way in which the employer may give effect to his or her desire that a job not be done by any person. An employer may remove from the employee who had been doing the job all functions, duties, and responsibilities that comprise the job, and offer to engage the employee to perform different functions, duties, and responsibilities. This, however, would be the equivalent of termination of employment if the employer does not have a contractual right to offer the employee different duties and the employee is unwilling to alter his or her terms of employment by agreeing to perform different tasks to those he or she was engaged to perform.
The clearest case of redundancy occurs where an employer terminates the employment of the employee who has performed the job in question, and the employer expressly abolishes the job.[90] But redundancy may occur, and probably more usually occurs, where the functions, duties, and responsibilities that comprise the job that was performed by the employee whose employment has been terminated are distributed to the remaining or to newly engaged employees. Ryan J recognised that species of redundancy in Jones v Department of Energy and Minerals:[91]
[I]t is within the employer’s prerogative to rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly-created positions. It is inappropriate now to attempt an exhaustive description of the methods by which a reorganisation of that kind may be achieved. One illustration of it occurs when the duties of a single, full-time, employee are redistributed to several part-time employees. What is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the re-organisation, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position becomes redundant in the sense in which the word was used in the Adelaide Milk Cooperative case.
[90] Gromark Packaging v Federated Miscellaneous Workers Union of Australia (1992) 46 IR 98, at page 107
[91] Jones v Department of Energy and Minerals (1995) 60 IR 304, at page 308
Beazley J also recognised this species of redundancy in Quality Bakers of Australia v Goulding:[92]
A redundancy will arise where an employer has labour in excess of the requirements of the business; where the employer no longer wishes to have a particular job performed; or where the employer wishes to amalgamate jobs: R v Industrial Commission of South Australia; Ex parte Adelaide Milk Supply Co-operative Ltd (1977) 44 SAIR 1202 per Bray CJ at 1205; Gromark Packaging v FMWU (1992) 46 IR 98, per Franklyn J at 105. It is not necessary for the work to have disappeared altogether. As was said in Bunnetts’ case (Bunnett v Henderson’s Federal Spring Works Pty Ltd) (1989) AILR 356:
‘‘Organisational restructuring may result in a position being abolished and the functions or some of them being given to another or split amongst others.’’
[92] Quality Bakers Australia Ltd v Goulding (1995) 60 IR 327, at pages 332-333
As with the notion of “redundancy” articulated in Adelaide Milk Supply Co-operative Limited, s 119(1)(a) of the FW Act is directed to a “job” that is done by an employee. The subsection, however, does not use the words “no longer desires” or “wishes”. It uses the words “no longer requires”: the job must be one the employer “no longer requires” be done by anyone. That expression, however, conveys the same meaning as “no longer desires” or “no longer wishes” when used in relation to a job that is being performed. An employer’s no longer requiring the job to be done by anyone is equivalent to an employer’s no longer desiring or wishing that the job be done by anyone.
I next turn to the requirement that the employer terminate the employment of a person who has been doing a job “because” the employer no longer requires the job done by that person to be done by anyone. The ordinary meaning of “because”, when followed by a substantive, is “by reason of”.[93] In cases decided under s 5(1) of the Conciliation and Arbitration Act 1904 (Cth) (1904 Act), which did not use “because” but instead used “by reason of”, it was assumed “because” and “by reason of” have the same meaning. Tracey J noted this in Barclay v Board of Bendigo Regional Institute of Technical and Further Education where his Honour said that “in giving reasons for their decisions, courts dealing with cases brought under s 5 of the [1904 Act], often used the phrase “by reason of” and “because” interchangeably”.[94] Further, all Justices of the High Court in Board of Bendigo Regional Institute of Technical and Further Education v Barclay, took or assumed that “because” in s 346 of the FW Act denotes the reason or reasons action is or was taken.[95]
[93] Oxford English Dictionary online, accessed 07.02.2022
[94] Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2010] FCA 284 , at [26]
[95] Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32, at [42], French CJ and Crennan J (“Determining why a defendant employer took adverse action against an employee involves consideration of the decision-maker’s “particular reason” for taking adverse action (s 361(1) . . . .”); at [101], Gummow and Hayne JJ (“The use in s 346(b) of the term “because” in the expression “because the other person engages . . . in industrial activity”, invites attention to the reasons why the decision-maker so acted.”).
Thus, for an employee to become entitled under s 119(1)(a) of the FW Act to a redundancy payment provided for by s 119(2) the employer must terminate the employee’s employment because the employer no longer requires the job the employee was doing to be done by anyone, or, stated equivalently, by reason of the employer no longer requiring the job the person has been doing to be done by anyone. That means that, when determining whether in any given case an employer terminated the employment of a person who has been doing a job because the employer no longer requires the job to be done by anyone, it is necessary to “search for the reasoning actually employed by the” employer in deciding to terminate the person’s employment.[96]
[96] Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32, at [146]
What is the position where an employer terminates the employment of a person for a number of reasons, only one of which is the employer’s no longer requiring that the job that the person has been doing be done by anyone? Does s 119(1)(a) of the FW Act apply only where the employer’s no longer requiring that the job be done by anyone is the sole or, at least, the dominant reason? The beginning of an answer to that question lies in the judgment of Mason J in General Motors-Holden’s Pty. Ltd. v Bowling, a case brought under s 5(1) of the 1904 Act.[97]
[97] General Motors-Holden’s Pty. Ltd. v Bowling (1976) 51 ALJR 235
One question in Bowling was whether, in seeking to prove that its dismissing an employee was not actuated by an impermissible reason, the employer had to prove that such impermissible reason played no role in its decision to dismiss the employee. Mason J (with whose reasons Gibbs CJ and Jacobs J agreed) held that the Industrial Court of Australia was correct to reject the contention that the impermissible reason for dismissing an employee under s 5(1) of the 1904 Act had to be the sole or predominant reason actuating the employer. Mason J held that “by reason of” in s 5(1) of the 1904 Act means a reason that constituted “a substantial and operative factor”, so that the employer would discharge its burden if it proved that the reasons on which it relied for dismissing the employee did not include the impermissible reason as a substantial and operative factor.[98] His Honour relied on the construction Barwick CJ and Walsh J gave in Mikasa (N.S.W.) Pty. Ltd. v Festival Stores to the expression “for the reason that” contained in s 66B(2)(d) of the Trade Practice Act 1965 (Cth).[99] In Mikasa it was submitted that the expression “for the reason that” meant for the reason only that or for the sole reason that. Barwick CJ rejected that construction (emphasis added):[100]
In my opinion it is not correct to so emphasize the participle in the phrase “for the reason that” as to interpret the paragraph as requiring the withholding of the supply to be for one reason only. In my opinion, if the likelihood that the would-be purchaser would sell at less than the specified price is an operative reason for withholding that supply, the supplier engages in the practice of resale price maintenance, however many other reasons the supplier may in fact have for not supplying the goods to the would-be purchaser. The likelihood of price cutting is not required, in my opinion, to be the predominant reason; it is enough if it is an operative reason, that is to say, a substantial reason in the totality of reasons for the withholding of the supply.
[98] General Motors-Holden’s Pty. Ltd. v Bowling (1976) 51 ALJR 235, at page 241D
[99] Mikasa (N.S.W.) Pty. Ltd. v Festival Stores (1972) 127 CLR 617
[100] Mikasa (N.S.W.) Pty. Ltd. v Festival Stores (1972) 127 CLR 617, at page 634
The Justices in Board of Bendigo Regional Institute of Technical and Further Education v Barclay adopted the same construction of “because” in s 346 of the FW Act.[101]
[101] Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32, at [59]. [65], [104]
It is the case that Bowling and Barclay concerned provisions in relation to which the employer had the onus of proving that the dismissal was not done for a particular reason, and s 119(1)(a) of the FW Act does not cast an onus on an employer to prove that he or she did not terminate the employment of the person who had been doing a job because the employer no longer required the job to be done by anyone. That, however, does not affect the construction given to “because”. It only affects the framing of the question a court must determine. In the case of a provision that casts the onus on an employer to prove it did not dismiss an employee for the particular reason, the question is: did the employer dismiss the employee for the reason that is not the particular reason, or for reasons that did not include the particular reason as a substantial and operative factor? Where, on the other hand, as is the case with s 119(1)(a) of the FW Act, the onus is on a person claiming the employer dismissed the employee for a particular reason, the question is: did the employer dismiss the employee for the particular reason, or for reasons that included the particular reason as a substantial and operative factor?
Counsel for Mr Symons submitted that the “test” under s 119(1)(a) of the FW Act is “an objective one”, namely, “whether the work being done was expected to come to an end”. Counsel relied on the judgment of Colvin J in Fair Work Ombudsman v Spotless Services Australia Ltd,[102] and the decision of the Fair Work Commission in Construction Forestry, Mining and Energy Union v McCain Foods (Aust) Pty Ltd. [103] I do not accept this submission. It does not purport to reflect the outcome of any construction of the text of s 119(1)(a) of the FW Act; it does not take into account the construction of “because” given in cases such as Barclay; and the authorities on which counsel relies do not support counsel’s submission. The principal question in Spotless was whether the employer’s not requiring the job in question being done by anyone was “due to the ordinary and customary turnover of labour”, so as to being the employer within the exception provided for by s 119(1)(a) of the FW Act. And McCain Foods was concerned with the construction of the terms of a collective agreement, not the text of s 119(1)(a) of the FW Act.
[102] Fair Work Ombudsman v Spotless Services Australia Ltd [2019] FCA 9, particularly at [74]
[103] Construction Forestry, Mining and Energy Union v McCain Foods (Aust) Pty Ltd [2014] FWC 1923
Whether an employer’s termination of an employee’s employment gives rise to an employee’s becoming entitled under s 119(1)(a) of the FW Act to a “redundancy payment” provided for by s 119(2), therefore, depends on whether the person claiming the employee became so entitled proves the following:
(a)The employer had required the employee to do a job (job in question). Proof of this element requires the identification of the functions, duties, and responsibilities the employer had entrusted, as part of the scheme of the employer’s organisation, to the employee.
(b)The employer had knowledge of the functions, duties, and responsibilities that comprised the job in question. Without such knowledge, it would not be possible to prove the employer terminated the employment of the person who did the job in question because the employer no longer required the job be done by anyone.
(c)By the time the employer decided to terminate the employee’s employment, the employer formed the view that he or she no longer required anyone to do the job in question.
(d)The employer terminated the employee’s employment for the reason that the employer no longer required anyone to do the job in question, or for reasons that included as a substantial and operative factor the employer’s no longer requiring anyone to do the job in question.
DID TERMINATION OF MR SYMONS’ EMPLOYMENT ENGAGE s 119(1)(a)?
What job did PW engage Mr Symons to do?
I begin with what is alleged and admitted on the pleadings. In the amended statement of claim Mr Symons alleges that in 2006 PW appointed him “to the position of General Manager, and from then undertook the duties of that role”. The respondents admit that allegation, and, in their counsels’ written submissions, submit that in around 2006 Mr Symons was appointed to the position of general manager, and he remained in that role until PW terminated his employment. Further, the respondents accept that, even though Mr Symons’ title was changed to “General Manager, Sales and Marketing”, “the position did not change”.[104]
[104] Outline of Submissions for the Respondents [3]
I find, therefore, that at the time Mr Vercoe decided to terminate Mr Symons’ employment, Mr Vercoe, and therefore PW, decided that PW did not require that the functions, duties, and responsibilities that comprised Mr Symons’ Job be done by anyone. More particularly, I find that Mr Vercoe, and therefore PW, at the very least did not require any one person to do both the sales and marketing part, and the operations part, that comprised Mr Symons’ Job.
Did PW terminate Mr Symons’ employment because it no longer required anyone to do Mr Symons’ Job?
Mr Vercoe has given evidence that he decided to terminate Mr Symons’ employment for three reasons: Mr Vercoe senior conveyed to Mr Vercoe that he wanted Mr Symons to be dismissed; PW’s board “suggested employing someone with better skills”; and Mr Vercoe had a poor relationship with Mr Symons”.[117]
[117] Affidavit M J Vercoe 20.05.2021, [50]
Did Mr Vercoe senior want PW to terminate Mr Symons’ employment?
There is evidence, in addition to evidence Mr Vercoe has given, on the basis of which it could reasonably be inferred that Mr Vercoe senior had decided that PW should terminate Mr Symons’ employment. That evidence is the conversation Mr Mannion says, and which I find, he had with Mr Vercoe senior around two weeks before Mr Vercoe senior passed away in which Mr Vercoe senior asked Mr Mannion to take on the role of chief operating officer, and in which Mr Vercoe senior said that he still needed to talk to Mr Symons, and to Mr Campbell. That suggests Mr Vercoe senior may have wanted to tell Mr Symons something about Mr Symons’ continued employment with PW.
I am satisfied, and therefore find, that Mr Vercoe senior communicated to Mr Vercoe a decision that PW should terminate Mr Symons’ employment. But finding Mr Vercoe senior had decided that PW should terminate Mr Symons’ employment, and that he communicated that decision to Mr Vercoe, says nothing about the reason or reasons why Mr Vercoe senior had so decided.
Mr Vercoe has given no evidence that he had no conversation with Mr Vercoe senior in which Mr Vercoe senior expressed a reason or reasons for having decided that PW should terminate Mr Symons’ employment. That leaves open the possibility that Mr Vercoe senior did inform Mr Vercoe of the reason or reasons for which he had made that decision; and that the reason could have been, or the reasons could have included the reason, that PW no longer required the functions, duties, and responsibilities that comprised Mr Symons’ Job to be done by any one person. It was entirely within the ability of Mr Vercoe to give evidence either that Mr Vercoe senior did not inform Mr Vercoe of the reason or reasons he wanted PW to terminate Mr Symons’ employment, or, if he did, the reason or reasons did not include a statement to the effect that PW no longer required Mr Symons’ Job be done by any other person. Mr Vercoe, however, gave no such evidence; and that failure engages reasoning discussed by the plurality in Kuhl to which I have referred.
In these circumstances it is open to find, and I find, that the evidence Mr Vercoe could have given, but did not give, about whether Mr Vercoe senior had a conversation with Mr Vercoe in which there was a discussion about the reason or reasons for which Mr Vercoe senior had decided PW should terminate Mr Symons’ employment would not have assisted PW or Mr Vercoe. Further, the evidence to which I refer in paragraph 91 supports a finding, and I do find, that Mr Vercoe senior had decided that PW should terminate Mr Symons’ employment because PW then proposed to restructure the operations of PW in a way that would no longer require the sales and marketing part, and the operations part, that comprised Mr Symons’ Job to be done by one person.
Did PW’s board suggest employing someone with better skills?
As I have already noted, Mr Vercoe does not identify when “the Board” suggested employing someone with “better skills”, or the person or persons who were members of the board at the time the suggestion was made, or the effect of the words by which the person or persons who were board members conveyed to Mr Vercoe the suggestion that PW employ a person with “better skills”. This evidence also begs the question: better skills to do what? Mr Vercoe gives no evidence on the basis of which this question may be answered.
If the purpose of Mr Vercoe giving evidence that members of PW’s board said that PW needed to employ a person with better skills was to convey that PW’s board were not satisfied with Mr Symons’ performance as general manager, I would not accept it. Quite apart from Mr Vercoe not giving any details of the context in which the board said such words, the view that PW’s board were not satisfied with Mr Symons’ performance as general manager is not consistent with the email Mr Vercoe approved on 22 November 2019 be sent to PW’s staff announcing Mr Symons’ departure. Mr Vercoe described Mr Symons as a “valued and long-term employee”, a “respected and well-liked member of the team”, a “huge believer in the company and [its] products”, and a person who “was instrumental in assisting the growth and character of the company and a great support to our Founder John Vercoe”.
It is conceivable, however, that members of the board did say words to the effect that PW needed to employ a person with “better skills”; but the probabilities are that this would have been said by reference to the planned future operations of PW’s business. It is conceivable that a comment that PW needed to employ a person with better skills than Mr Symons possessed was directed to a new position PW intended to create as part of an organisational restructure. The evidence is clear that at the time Mr Vercoe terminated Mr Symons’ employment PW intended to restructure its operations. Mr Vercoe said as much in the email he approved on 22 November 2019 be sent to PW’s staff announcing Mr Symons’ departure. The email stated that PW needed “to expand”, as a result of which it needed “new people who can assist us with this journey”, and that there would be “a bit of a transition process to go through with [Mr Symons’] departure”. The inference is available to be drawn that the board believed they needed a person with better skills than Mr Symons possessed to fill a new position PW intended to create whose job would include the function of seeking to expand PW’s business to the level PW’s board desired. I do not, however, need to make, and I therefore do not make, any findings about this.
Even if, however, members of the Board suggested to Mr Vercoe that PW employ someone with “better skills” than the skills Mr Symons had, and this influenced Mr Vercoe’s decision that PW terminate Mr Symons’ employment, I am satisfied that Mr Vercoe’s having decided that PW did not require that the functions, duties, and responsibilities that comprised Mr Symons’ Job be done by anyone would nevertheless have constituted a substantial and operative factor in Mr Vercoe’s decision that PW terminate Mr Symons’ employment.
Termination because of Mr Vercoe’s poor relationship with Mr Symons?
I find that Mr Vercoe and Mr Symons did not like each other; but Mr Vercoe gave no evidence of any single instance where Mr Symons and Mr Vercoe were unable to work together or otherwise maintain a professional relationship in the workplace. In those circumstances I accept the evidence of Mr Symons that he and Mr Vercoe maintained a professional relationship in the workplace which involved them participating in executive team meetings. I also accept the evidence Mr Mannion gave under cross-examination that, although the relationship between Mr Vercoe and Mr Symons in the workplace was not the best relationship, “they seemed to get along when they needed to for business”.[118]
[118] 09.08.2021 T40.45
I find that any ill feelings Mr Vercoe felt towards Mr Symons played no role in Mr Vercoe deciding that PW no longer required that the functions, duties, and responsibilities that comprised Mr Symons’ position of general manager be done by anyone, and in Mr Vercoe’s giving effect to that decision by terminating Mr Symons’ employment. As I have already found, Mr Vercoe senior had decided that PW should terminate Mr Symons’ employment because Mr Vercoe senior then proposed to restructure the operations of PW in a way that would no longer require that both the sales and marketing part, and the operations part, that comprised Mr Symons’ Job to be done by one person; and I have also found that Mr Vercoe himself decided that PW did not require that the functions, duties, and responsibilities that comprised Mr Symons’ Job be done by anyone. Even if, however, any ill feeling Mr Vercoe felt towards Mr Symons influenced Mr Vercoe’s decision that PW terminate Mr Symons’ employment, I am satisfied that Mr Vercoe’s having decided that PW did not require that the functions, duties, and responsibilities that comprised Mr Symons’ Job be done by anyone would nevertheless have constituted a substantial and operative factor in Mr Vercoe’s decision that PW terminate Mr Symons’ employment.
I am satisfied, therefore, and find that Mr Vercoe, in his capacity as acting CEO of PW, terminated Mr Symons’ employment for the reason, or for reasons that included as a substantial and operative factor, that Mr Vercoe decided that PW no longer required the functions, duties, and responsibilities that comprised Mr Symons’ Job be done by any one person.
Conclusion
On the basis of my findings, I am satisfied and, therefore, I find that Mr Vercoe, in his capacity as acting CEO of PW, decided that PW no longer required that the functions, duties, and responsibilities that comprised Mr Symons’ Job be done by anyone; in particular, Mr Vercoe decided that the sales and marketing part, and the operations part, that comprised Mr Symons’ Job would no longer be performed by any one person, but they would be performed, if at all, by two different persons; Mr Vercoe decided that PW would give effect to that decision by terminating Mr Symons’ employment; and Mr Vercoe gave effect to that decision on 22 November 2019 by terminating his employment with PW. In short, I find that Mr Vercoe, in his capacity of acting CEO of PW, terminated Mr Symons’ employment because PW no longer required that the functions, duties, and responsibilities that comprised Mr Symons’ Job be done by anyone. That means that, under s 119(1)(a) of the FW Act, Mr Symons became entitled to be paid redundancy pay as provided for under s 119(2).
In the amended statement of claim Mr Symons alleges he is entitled to be paid the amount calculated according to item 10 of the table in s 119(2) of the FW Act, namely, an amount equal to 12 weeks of Mr Symons’ salary. Item 10 provides an amount in relation to an employee having served at least 10 years. Mr Symons, however, has served in the position of general manager since at least 2006. In opening address counsel for Mr Symons indicated that he wished to rely on a transitional provision to claim a larger amount that Mr Symons claims in the amended statement of claim as currently filed. In closing address counsel for the respondents objected to Mr Symons relying on any transitional provisions because it is not a matter claimed in the amended statement of claim. The matter was left on the basis that if counsel for Mr Symons wished to apply for leave to file a further amended statement of claim, he would consult with counsel for the respondents with a view to making a formal application. Mr Symons has made no application to amend the amended statement of claim.
In those circumstances, given my findings, on 22 November 2019, when PW terminated his employment, PW became liable under s 119(1)(a) of the FW Act to pay to the applicant an amount equal to 12 weeks’ worth of the salary he was being paid at the time PW terminated his employment. There is no dispute that PW did not pay to Mr Symons any redundancy pay. It follows, therefore, that by not paying any redundancy payment to Mr Symons at the time he became entitled to be paid a redundancy payment PW contravened s 44(1) of the FW Act.
WAS MR VERCOE OR MR FINK INVOLVED IN PW’s CONTRAVENTION?
Principles
Whether Mr Vercoe or Mr Fink are liable for PW’s contravention of s 44(1) of the FW Act depends on whether s 44(1) the FW Act is a “civil remedy provision”,[119] and, if so, whether Mr Vercoe or Mr Fink were “involved” in PW’s contravention of s 44(1). That follows from s 550(1) of the FW Act which provides that a “person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision”. A person’s being “involved in” a contravention for the purposes of s 550(1) of the FW Act is defined in s 550(2) as follows:
A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b)has induced the contravention, whether by threats or promises or otherwise; or
(c)has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d) has conspired with others to effect the contravention.
[119] Section 44 is a “civil remedy provision” – see s 539(1) of the FW Act, item 1 of the table
To be a “person involved in” another person’s contravention of a provision of the FW Act a person must engage in or omit to do an act or acts that in some way links the person with the contravention in question. [120] The nature and extent of the required link is that which is required under the criminal law notion of accessorial liability, as discussed by Mason J in Giorgianni v R:[121]
In felony at common law the terms “aid” and “abet” are generally used to refer to the conduct of a principal in the second degree, or one who is present at the commission of the offence by the principal offender, while the terms "counsel" or "procure" are generally used in relation to the conduct of an accessory before the fact, or one who is absent at the time of the commission of the offence (4 Bl. Comm. 34-36; Ferguson v. Weaving (1951) 1 KB 814, at pp 818-819). In substance, however, there appears to be no distinction between a principal in the second degree and an accessory before the fact beyond the question of presence. In misdemeanour, where no attempt has been made to classify the parties to an offence, each of the four terms is employed to refer to the conduct of a secondary participant. But the terms are descriptive of a single concept. In this regard, I would adopt the observation of Cussen A.C.J. in R v. Russell; (1933) VLR 59, at p 67, as being applicable to secondary participation in misdemeanour. Having listed various words, including “aiding” and “abetting” which have been used to refer to the conduct of a principal in the second degree in felony, his Honour observed:
“All the words abovementioned are, I think, instances of one general idea, that the person charged as a principal in the second degree is in some way linked in purpose with the person actually committing the crime, and is by his words or conduct doing something to bring about, or rendering more likely, such commission."
As R v. Russell itself illustrates, there need not exist any agreement or consensus between the principal in the second degree or secondary participant and the principal offender.
[120] I discussed the relevant principles in some detail in Fair Work Ombudsman v A to Z Catering Solution Pty Limited & Anor (No.2) [2018] FCCA 2299, [268]-[282]
[121] Giorgianni v R (1985) 158 CLR 661, at page 493
It is not enough for a person to be linked in some way with another person’s contravention before he or she can be held to be involved in that contravention. It is also necessary that the person have actual knowledge of the facts that constitute the elements of the contravention. That requirement, however, goes no further than knowledge of the facts. It is not necessary that the person also have knowledge that the facts of which he or she has knowledge constitutes a contravention of the FW Act before that person can be held to be involved in another person’s contravention of a provision of the FW Act.
Where the contravention consists of an employer’s failing to pay amounts due to an employee under s 119(1)(a) of the FW Act, a person will need to have knowledge of each of the elements that give rise to an employee’s entitlement to being paid redundancy pay before that person can be found to be involved in the contravention. The person must know the employer terminated the employment of the employee; the functions, duties, and responsibilities that comprised the job the employee did; the employer no longer required the job the employee did to be done by anybody; and the employer terminated the employee’s employment because the employer no longer required the job the employee did be done by anyone.
Mr Vercoe’s position
The respondents, in their written submissions, submit that “the basis of the claim of accessorial liability against” Mr Vercoe “is unclear”. The respondents submit that Mr Symons has not pleaded “the knowledge purportedly held by” Mr Vercoe “and his actions that amount to knowing involvement”.[122] It may be that the amended statement of claim could have pleaded with greater precision the matters on which Mr Symons relies for alleging Mr Vercoe was involved in PW’s contravention; but the respondents did not make any application in relation to the amended statement of claim.
[122] Outline of Submissions for the Respondents [54]
In any event, there can be no doubt about the matters on which Mr Symons relies for claiming Mr Vercoe was involved in PW’s contraventions. Mr Vercoe was the person through whom PW contravened s 44(1) of the FW Act. Mr Vercoe decided on behalf of PW to terminate, and did terminate Mr Symons’ employment. And I have found that Mr Vercoe had knowledge of the functions, duties, and responsibilities that comprised Mr Symons’ Job; Mr Vercoe decided that PW no longer required that the functions, duties, and responsibilities that comprised Mr Symons’ Job be done by anyone; and it was for this reason, or for reasons that included this reason as a substantial and operative factor, that Mr Vercoe terminated Mr Symons’ employment with PW.
I am satisfied that Mr Vercoe was a person involved in PW’s contravention of s 44(1) of the FW Act and, because of s 550(1), he is taken to have contravened s 44(1) of the FW Act.
Mr Fink’s position
Mr Fink was not a director, employee, or agent of PW at the time PW terminated Mr Symons’ employment; Mr Fink became associated with PW almost one year after PW terminated Mr Symons’ employment. Mr Symons, however, claims Mr Fink was involved in PW’s contravention of s 44(1) because, Mr Symons submits, a contravention of s 44(1) based on the employer’s failure to make a redundancy payment as required by s 119(1)(a) is a continuing contravention; and PW’s contravention of s 44(1) of the FW Act continued up until and beyond the time Mr Fink became director. Mr Symons further submits that at a time after he became director of PW Mr Fink became aware of all of the essential elements of PW’s contravention of s 44(1) based on its failure to pay Mr Symons the redundancy pay to which Mr Symons became entitled when on 22 November 2019 PW terminated his employment.
I will assume that Mr Symons is correct in his assumption that a contravention of s 44(1) of the FW Act based on an employer’s not making a redundancy payment as required by s 119(1)(a) is a “continuing contravention”, and that a person with authority to arrange payment by the employer of the redundancy payment can become a person involved in the employer’s contravention of s 44(1) if that person is aware of all the essential facts that have given rise to an employee’s entitlement to redundancy pay, but the person has not caused the employer to pay the redundancy pay. I will also assume that Mr Fink has the authority to cause PW to pay to Mr Symons the redundancy pay to which I have found he became entitled when PW terminated his employment.
Mr Symons submits Mr Fink knows PW terminated Mr Symons’ employment; and Mr Fink is aware (Mr Symons submits) that Mr Symons’ position had not been filled by the time Mr Vercoe resigned as CEO.[123] Even if I were to accept these submissions, they overlook one essential element of s 119(1)(a) of the FW Act: the employer must terminated the employee “because” the employer no longer required the job the employee was doing be done by anyone. There is no evidence on the basis of which it could be found that Mr Fink at any point knew, or now knows, the reason or reasons for which Mr Vercoe decided PW would terminate Mr Symons’ employment. On the contrary, Mr Fink has given evidence, which was not challenged, that he believes that Mr Symons’ position as a general manager was such that it was incapable of being made redundant. That belief is inconsistent with Mr Fink having knowledge that PW terminated Mr Symons’ employment because PW no longer required Mr Symons’ job as general manager not be done by anyone.
[123] Outline of submissions by the applicant [44]
I am therefore not satisfied that Mr Fink was involved in any continuing contravention by PW of s 44(1) of the FW Act based on PW not having paid to Mr Symons the redundancy pay it became liable to pay on 22 November 2019 when, it is accepted on the pleadings, PW terminated Mr Symons’ employment.
DISPOSITION
I propose to make declarations to the effect that PW contravened s 44(1) of the FW Act by failing to pay redundancy pay to which Mr Symons became entitled when PW terminated his employment on 22 November 2019, and that Mr Vercoe was involved in PW’s contravention. I also propose to order that the claims for relief made against Mr Fink be dismissed, and reserve to Mr Fink liberty to apply in relation to costs, such liberty to be exercised within 28 days after the day on which I pronounce my orders.
I will list the proceeding at 9:30 am on 3 March 2022 for directions in relation to penalty, and to hear submissions on what other orders I should make to give effect to these reasons for judgment.
I certify that the preceding one hundred and twenty-three (123) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 21 February 2022
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