Symons v White as Executive Director of Catholic Schools

[2017] FCCA 2829

FEDERAL CIRCUIT COURT OF AUSTRALIA

SYMONS v WHITE AS EXECUTIVE DIRECTOR OF CATHOLIC SCHOOLS [2017] FCCA 2829

Catchwords:
INDUSTRIAL LAW – Whether an enforceable contract was formed – whether claim is safety net contractual entitlement – no agreement found to exist – application dismissed.

Legislation:

Fair Work Act 2009, ss.61, 542, 566

Applicant: ALISTAIR SYMONS

Respondent: DR DANIEL J WHITE AS EXECUTIVE DIRECTOR OF CATHOLIC SCHOOLS T/A SYDNEY CATHOLIC SCHOOLS

File Number: SYG 2316 of 2017

Judgment of: Judge Street

Hearing date: 10 November 2017

Date of Last Submission: 10 November 2017

Delivered at: Sydney

Delivered on: 10 November 2017

REPRESENTATION

Counsel for the Applicant: Mr M Gibian of counsel

Solicitors for the Applicant: Independent Education Union of Australia

Counsel for the Respondent: Mr B Cross of counsel

Solicitors for the Respondent: Makinson D'Alpice Lawyers

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2316 of 2017

ALISTAIR SYMONS

Applicant

And

DR DANIEL J WHITE AS EXECUTIVE DIRECTOR OF CATHOLIC SCHOOLS T/A SYDNEY CATHOLIC SCHOOLS

Respondent

REASONS FOR JUDGMENT

Background

1. This is an application, within the Court’s jurisdiction under s 566 of the Fair Work Act 2009 (Cth) (“the Act”) in respect of an allegation of contravention of s 542, in respect of a safety net contractual entitlement, falling under the scope of s 61(2)(i) in respect of redundancy pay.

2. Mr Gibian, counsel for the applicant, accepts that the case under the Act is dependent upon there being in existence a contract between the parties in respect of the subject matter in issue. In the present case, the applicant alleges, as a result of email correspondence, an alleged contract described as a “Career Change Package”. In the context of his retirement, prior to the relevant email exchange, the subject of the alleged agreement, a meeting had occurred on 14 October 2013, relevantly, between the applicant and Mr McCormack, with another person present. At that meeting, there was discussion of conditions in respect of a Career Change Package, and discussion in relation to the applicant being sent a communication.

3. To the extent that there is an inconsistency between the evidence of Mr McCormack and the evidence of the applicant, I prefer the evidence of Mr McCormack. The applicant did not impress me as a witness of credit in the witness box.

4. The applicant failed, in his affidavit, to make a candid identification of his communications with the Notre Dame University. The applicant’s explanation for that lack of candour was unconvincing. The applicant also gave evidence in relation to an assertion about the existence of the Career Change Policy, that he did not become aware of it until 2014. That was entirely inconsistent with a letter written on his behalf in November 2013.

5. I do not accept the applicant’s evidence that he was unaware of the Career Change Policy at the time of the email communications said to give rise to the alleged agreement, nor do I accept, the applicant’s evidence in the assertion that he was not able to continue in his current position if he so chose. At the relevant time of the communications, his position was Administrative Coordinator. I accept the evidence given by Mr McCormack that, prior to the meeting on the 14 October 2013, the applicant had been informed he could continue in that role.

6. The relevant communications, the subject of the alleged dispute, in terms of the pleaded agreement in writing, is as follows:

   Dear Alistair,

   Pls find attached a calculation prepared by CEO Payroll if you accept a Career Change Package. The gross figure is $115,328.33, subject to tax of $21,434, therefore a net payment of $93,894.33. Acceptance of such a package prevents employment by Sydney CEO for a period of five years.

   Alternatively, a fulltime (non-promotion) teaching position at a CEO Inner West Region school may become a possibility, and I am awaiting feedback from that Region.

   I will await your instructions.

   Rgds,

   Merv McCormack

7. That email, in its opening line, referred to an attached calculation prepared by the CEO payroll. It also referred to a Career Change Package. From the communications that had taken place between the parties prior to that date, it was apparent, I find, and know by the applicant, that there was a written Career Change Package document identifying conditions in respect of the Career Change Package.

8. The reference to the Career Change Package in the email, in these circumstances, I find was a reference to the Career Change Policy identified in the affidavit of Cara Seymour. That Career Change Policy, in the affidavit of Cara Seymour, relevantly included a provision 3.5:

   The Career Change Package will not be available to teachers:

   …

   who will remain in the teaching profession, albeit in a different sector or with a different employer.

9. The applicant had been in communications with Notre Dame University since May of 2013. The applicant had attended an interview in September 2013. The applicant took up a position, which he asserted was an administrative position in the university, and therefore not within the scope of the reference to “in the teaching profession”. It is patent that a university is an institution involved in the teaching profession. The position the applicant was taking up, in an administrative role, was still one in the teaching profession within clause 3.5 of the Career Change Policy that was incorporated in the email sent to the applicant.

10. In any event, the email dated 18 October 2013 was not one on an objective assessment that manifested an intention to create legal relations. The reference in the email to “I will await your instructions” is entirely consistent with the author understanding that this was an invitation to treat, and not an offer capable of giving rise to a binding enforceable contract. The reference, also, to the attached calculation in the opening of the email made clear its incorporation in relation to the Career Change Policy. That document referred to the gross figures being a “QUOTE only”, with quote in capitals and underlined.

11. The email also referred to the tax calculations being estimates. The reference to “Quote only” is entirely inconsistent with the email and attachment constituting an offer capable of acceptance. The response sent to Mr McCormack, on 25 October 2013, relevantly, was as follows:

    Dear Merv

    I've considered the offer and I'm prepared to accept it.

    Regards

    Alistair

12. I do not regard the response, on an objective assessment, as giving rise to a binding agreement between the applicant and the respondent. First because there was no offer capable objectively of giving rise to the creation of binding legal relations.

13. Secondly, to the extent that the applicant indicated that he was prepared to accept the offer he referred to, on an objective assessment that response is consistent with the applicant understanding he was being invited to treat in respect of a Career Change Package, reflected in a document with conditions. The communication sent on 25 October 2013 in the circumstances of this case was not objectively assessed as acceptance binding capable of giving rise to legal relations. I do not regard the email exchange identified above as giving rise to any binding agreement on an objective assessment in the circumstance of the parties, which included the capacity of the applicant to remain in his current position of employment at that time and both parties knowledge of the policy.

14. The applicant’s further communication, on 8 November 2013, is as follows:

    8 November 2013

    Ms Janine Kenney

    Principal

    Mount St Joseph Milperra

    Dear Janine,

    Further to your announcement at the staff briefing on Monday 4 November and subsequent letter of Tuesday 5 November requesting my formal resignation, it is my intention to resign from my position as Administration Coordinator & Acting LOTE Coordinator at Mount St Joseph Milperra effective from the end of the school year 2013.

    The Catholic Education Office Sydney offered me a Career Change Package on Friday 18 October which I accepted on Friday 25 October. My resignation is contingent upon the successful resolution of the Career Change Package noted above.

    I take the opportunity to thank you sincerely for the support and genuine pastoral care you have personally extended to me during the year.

    Yours sincerely,

    Alistair Symons

15. That communication is entirely consistent with the applicant understanding that there was a Career Change Package which was relevant to the communications that he had received. The email was an endeavour to suggest a binding agreement had already been entered into.

16. The letter of 8 November 2013 also makes clear that the applicant was well alive to there being a controversy in respect of the Career Change Package. I find the applicant was well aware, at the time of the sending of the email purporting to accept the offer, that there was a Career Change Policy with a condition as specified. I find that there was no agreement made between the applicant and the respondent. Further, I find that if any agreement had been made, it was one that incorporated the Career Change Policy.

17. I find the position the applicant was taking up was a position that was in conflict with the condition identified in that Career Change Policy. I find, on that basis, the applicant would not be entitled to any payment in the circumstances where he took up a position at Notre Dame University, contrary to a term of the agreement if the Court had found an agreement arising from the email exchange.

18. In light of the concession that the absence of an agreement cannot give rise to any entitlement to relief under the Act, the allegations advanced by the applicant in that regard do not need to be addressed by the Court.

19. However, in the present case, the Court notes that, given the continued position which the applicant was entitled to hold, the Court does not accept that the nature of the agreement alleged, in respect of the Career Change Policy, is one that fell within the scope of s 61(2)(i), notwithstanding the breadth of the words “relate to” in that provision. Accordingly, the Court finds that there was not a safety net entitlement under s 542 even if there had been a contract and the Court finds there was no contravention of the Act.

20. For these reasons, the application is dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  22 November 2017