Tamrah Hughes v Kevin Vierboom Pty Ltd
[2024] FWC 2123
•9 AUGUST 2024
[2024] FWC 2123
The attached document replaces the document previously issued with the above code on 9 August 2024.
Hyperlinks removed.
Associate to Deputy President Wright.
Dated 9 August 2024.
| [2024] FWC 2123 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Tamrah Hughes
v
KEVIN VIERBOOM PTY LTD
(C2024/926)
| DEPUTY PRESIDENT WRIGHT | SYDNEY, 9 AUGUST 2024 |
Application to deal with contraventions involving dismissal - whether applicant dismissed or resigned – applicant dismissed
Ms Tamrah Hughes has made an application to the Fair Work Commission (Commission) under s 365 of the Fair Work Act 2009 (Cth) (FW Act) for the Commission to deal with a dispute arising out of allegations that she has been dismissed from her employment with Kevin Vierboom Pty Ltd trading as Fourtree Lawyers (Fourtree Lawyers) in contravention of Part 3-1 of the FW Act.
Ms Hughes claims that she was dismissed on 29 January 2024. The application was filed on 15 February 2024, and as such is within the timeframe required by s 366(1)(a) of the FW Act.
Fourtree Lawyers has objected to the application on the ground that Ms Hughes resigned and therefore was not dismissed from her employment.
Before dealing with the dispute under s 368, I must be satisfied that Ms Hughes was dismissed.
In summary, I have found Ms Hughes was dismissed by Fourtree Lawyers on 5 February 2024, within the meaning of s 365 of the FW Act.
Directions and submissions
On 5 April 2024, I issued directions for the filing and serving of evidence and submissions.
On 16 April and 14 May 2024, the Respondent filed submissions and the following witness statements:
Statement of Kevin Vierboom dated 16 April 2024
Statement of Alana Goodwin dated 16 April 2024
Statement of Cindy Jenkins dated 16 April 2024
Statement of Mitchell Hickey dated 16 April 2024
Statement in reply of Jane Hogan dated 14 May 2024
Statement in reply of Kevin Vierboom dated 14 May 2024
Statement in reply of Mitchell Hickey dated 14 May 2024
On 30 April and 1 May 2024, Ms Hughes filed submissions, a witness statement on her own behalf and a witness statement by Ms Chelsea Page dated 24 April 2024.
The matter was listed for hearing on 21 May 2024. I granted both parties permission to be legally represented at the hearing pursuant to s 596 of the FW Act, on the grounds that it would enable the matter to be dealt with more efficiently having regard to the complexity of the matter. Mr Kristian Bolwell appeared for Ms Hughes and Mr John Fernon SC of Counsel appeared for Fourtree Lawyers.
Mr Vierboom, Ms Hogan, Ms Hughes and Ms Page gave evidence at the hearing. Ms Goodwin, Ms Jenkins and Mr Hickey were not required for cross examination and their statements were admitted as evidence without objection by Ms Hughes.
Factual background
Ms Hughes is 25 years old. From 2016 to 2022, Ms Hughes worked in childcare and from 2019 to 2023 she completed three years of a degree in primary school education from the University of New England. She then transferred to a Bachelor of Law degree in 2023. From August 2022 to May 2023, Ms Hughes worked as a paralegal in a law firm. On 19 June 2023, Ms Hughes commenced employment with Fourtree Lawyers as a Legal Secretary/Paralegal. Fourtree Lawyers has two offices in New South Wales, in Erina and Newcastle.[1]
Mr Kevin Vierboom is the Managing Director and Company Secretary of Fourtree Lawyers which was incorporated on 7 June 2018. Mr Vierboom began the business of Fourtree Lawyers initially as a sole practitioner on 14 November 2014.[2]
On 18 July 2023, Ms Hughes informed Mr Kevin Vierboom and Ms Jane Hogan that she was pregnant. Ms Hogan is the Practice Manager of Fourtree Lawyers. Mr Vierboom and Ms Hogan are partners.[3]
On 21 November 2023, Ms Hughes sent the following email[4] to Ms Kiarne Randall who was then the Finance Manager of Fourtree Lawyers:
Hi Kiarne,
This doesn’t need to be actioned until you return as it isn’t urgent.
I hope you had a great holiday and enjoyed your time out of office!
I realised I never sent written confirmation regarding my leave dates, as per our conversation.
As long as she stays healthy and comfy where she is, my official last date will be the 16th of February 2024.
I confirmed with Fairwork that it is 6 weeks before my due date (28th February 2024) that will require a medical certificate (If asked for).
I am happy to provide this once we come back from our Christmas break.
Any questions please let me know.
Kind regards,
Tamrah Hughes
Ms Hughes provided evidence of various matters which occurred in her workplace prior to 24 January 2024. Although these matters may be relevant to Ms Hughes’ claim under s 365 of the FW Act, they do not assist in determining whether she was dismissed. As such, I do not deal with these matters in this decision.
On 24 January 2024 at around 10:00am, Ms Hughes was invited to a meeting with Mr Vierboom and Ms Hogan in Mr Vierboom’s office. At that meeting Ms Hughes was handed a letter.[5] Ms Hughes read the letter which provided:
Dear Ms Hughes
Notice of Major Workplace Change – Potential Redundancy
Confidentiality Direction
The contents of this correspondence are completely confidential and are not to be discussed with any staff current or past of the Company. You may obtain legal advice outside the Company as to any concerns which you may have as a result of this correspondence.
Potential Redundancy
As you are aware, I have suffered with a number of serious health concerns which began with heart problems in April 2023 and lengthy hospital admission in late 2023.
Kevin Vierboom Pty Limited trading as Fourtree Lawyers has embarked on a review of the business commitments and against this background several steps have been taken including the cancellation of the leasing arrangements in relation to the Newcastle Office and arrangements are being made to downsize the Erina office.
In 2023 Fourtree Lawyers introduced regular time recording for all the administrative staff and provided training to all the staff. A key objective of this programme was to compare the outputs of the Newcastle Office and the Erina Office in terms of the administrative staff to ensure that staff account for their work time.
Fourtree Lawyers’ management response to information which had been gained in the regular time recording programme has been delayed. It has become clear that the number of administrative staff in the Newcastle Office will need to be reduced and your position may be made redundant.
Consultation Process
Before making any decisions regarding the potential redundancy we wish to hold a consultation meeting with you. At the meeting we wish to discuss:
1. How the potential redundancy will impact you;
2. Any information or responses you wish to us [sic] consider; and
3. Any options for you to be redeployed in another role within Fourtree Lawyers.
I have arranged a consultation meeting in the Newcastle office on 29 January 2024 at 11:00am. The following persons will be attending the meeting: Jane Hogan, Mitchell Hickey and myself.
You may bring a support person to the meeting if you wish. If you wish to do so, please let me know the name of your support person as soon as possible and prior to the scheduled meeting time. Please be advised that the support person cannot be a past or present employee of the Company as these matters are confidential. The role of support person is to observe the meeting and he or she is not permitted to advocate or speak on your behalf.
Timeline moving forward
Fourtree Lawyers will arrange for a further meeting with you on 31 January 2024 following the consideration of your responses. Following the consultation period, an evaluation will be carried out of Fourtree Lawyers’ future need for your position.
Please contact me if you have any comments or questions.
Yours faithfully
Kevin Vierboom
Principal Solicitor - Dip.Law SAB.LLM
Fourtree Lawyers
The time for the meeting scheduled for 29 January 2024 was changed several times during the day and at 1.30pm on 29 January 2024, it went ahead. Ms Hughes attended with her support person Chelsea Page.[6] Ms Page is 26 years old and has worked as a legal assistant for her current employer since November 2023. She has completed a bachelor’s degree in criminology and is currently studying for a Diploma of Paralegal Studies. Ms Page and Ms Hughes have known each other since 2022 and socialise regularly.[7] Mr Vierboom and Mr Mitchell Hickey attended the meeting on behalf of Fourtree Lawyers.[8]
Each of the attendees at the meeting provided evidence of what occurred. Each version varied in some respects and there were some matters of disagreement, but there is no dispute in relation to the following:
a.Mr Vierboom advised that Ms Page was a support person who did not take part in the meeting
b.Mr Vierboom asked Ms Hughes if she wanted to say anything about the proposed redundancy
c.Mr Vierboom advised that he was having a Deed prepared providing that Ms Hughes’ employment would end by resignation, and that a payment of three weeks’ pay would be made to Ms Hughes.
Mr Hickey provided evidence that at the time of the meeting he had prepared a draft deed without payment terms but that that Mr Vierboom had not yet considered the deed.[9]The meeting ended and later that day a further meeting took place between Ms Hughes, Mr Vierboom and Mr Hickey where the draft Deed was provided and discussed. The Deed included the following clause:
Warranties
The Employee warrants that:
(a) the Employee agrees to the Employee's employment with the Company was agreed to result in a resignation;
(b) prior to entering into this deed the Employee had an opportunity to obtain legal advice in relation to the nature, effect and extent of this deed;
(c) prior to entering into this deed the Employee had an opportunity to obtain financial, accounting and taxation advice in relation to the nature, effect and extent of this deed;
(d) the Employee understands the content and effect of this deed and considers it to be fair and reasonable in all the circumstances;
(e) the Employee has entered into this deed fully and voluntarily of the Employee's own free will without duress, coercion, undue influence or pressure from either the Company or any other person or entity;
(f) the Employee understands this deed protects the Company from any Claims in respect of the Employee's employment with the Company at any time or the Termination:
(g) the Employee has not suffered from and does not suffer from any illness and/or injury caused, or aggravated by, the Employee's employment with the Company:
(h) the Employee is aware that the Company is relying upon the above warranties and this executed deed.
The Deed also provided that Ms Hughes’ employment would end by resignation on 29 January 2024 and that she would be paid three weeks pay in lieu of notice. According to Mr Hickey, Ms Hughes advised Mr Vierboom that she would like to accept the offer and the terms of the Deed but requested that she take it home and consider it. According to Mr Vierboom, he advised Ms Hughes that she could leave that day if she wished. In response to a query from Ms Hughes about what she should say to other staff members, Mr Vierboom said that he did not want staff knowing what he had agreed with Ms Hughes as it may cause problems in the future, that the Deed is confidential, and that Ms Hughes could say that she was leaving.[10]
Ms Hughes then left the meeting and packed up her desk. Ms Hughes told her colleagues that she was leaving.[11] Ms Hughes did not return to the workplace after 29 January 2024. In cross examination she said she sought legal advice the following day.
At 7:30pm on 30 January 2024, Mr Vierboom sent the following text message to Ms Hughes:
Good Evening, Tamrah I did not receive the deed back today. Would you please confirm that you have sent the deed.[12]
At 10:56am on 31 January 2024, Mr Vierboom send the following text message to Ms Hughes:
Please call Kevin Vierboom Fourtree Lawyers[13]
At 12:38pm on 31 January 2024, Ms Hughes sent Mr Vierboom the following message:
Hi Kevin, thank you for the message. As per the deed and our conversation on Monday, I have taken the time to seek independent legal advice. I’ll have a response to you by COB Friday. If you have any questions or concerns, please send me an email. Thanks Tamrah Hughes.[14]
In cross examination, Ms Hughes said she sent an email to Mr Vierboom on Friday 2 February 2024 referring to her text message on 31 January 2024 and directing that all future correspondence be sent to her solicitor, Mr Bolwell.
At 5:02pm on 5 February 2024, Mr Hickey sent a letter[15] to Mr Bolwell and Ms Hughes in the following terms:
Dear Ms Hughes and Mr Bolwell,
Tamrah Hughes Employment with Kevin Vierboom Pty Ltd trading as Fourtree Lawyers
We refer to your employment with Kevin Vierboom Pty Ltd trading as Fourtree Lawyers (the Company).
On 29 January 2024, you were provided with a deed of release. Some discussions took place and the benefits of the deed were outlined to you and you then offered to resign your employment effective immediately. You indicated that you would accept the offer detailed in the deed and you would return the signed deed next day. A short time later you made representations to several staff in the office that you would not be returning to work to a number of staff members. We consider that your representations to the Company and staff were consistent with the understanding that you have resigned your employment with the Company effective 29 January 2024.
Enclosed in this letter is a copy of your final payslip which has your final pay from the
Company which is your statutory notice.We thank you for your service with the Company.
Yours faithfully,
Kevin Vierboom
Principal Solicitor - Dip.Law SAB.LLM
Fourtree Lawyers
The payslip which was included with the letter provided that Ms Hughes was to be paid ordinary pay of 7.6 hours, Annual Leave (Remaining balance) of 9.5839 hours and a payment in Lieu of Notice Period of 38 hours.[16]
At 3:57pm on 6 February 2024, Mr Bolwell sent an email[17] to Mr Hickey in the following terms:
Dear Mr Hickey,
We act for Ms Hughes and refer to your letter of yesterday 5 February 2024.
We ask that all future communications involving this matter be directed to us only so that Ms Hughes is not provided with additional stress during the final trimester of her pregnancy and beyond.
In response to your letter, we are instructed that Ms Hughes:
·did not resign form [sic] her role.
·was informed without appropriate prior consultation and brusquely that she had ‘been made redundant’ and
·was instructed that she would have to tell people that she resigned as ‘the word redundancy makes others fear for their job’ and
·told to disappear that same day on your instructions.
As you appreciate this alleged conduct is manifestly unlawful, actionable and distressing to our client. Accordingly, you will be hearing from us in the near future.
Yours faithfully,
Mr Kristian Bolwell
Principal
Legislation
The application has been brought under s 365 of the FW Act which provides:
365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.
The issue between the parties which the Commission has been asked to determine is whether Ms Hughes was dismissed by Fourtree Lawyers. The dictionary at clause 12 of the FW Act refers to s 386 for the definition of ‘dismissed’.
Section 386 of the FW Act provides:
386 Meaning of dismissed
(1)A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
(i)to whom a training arrangement applied; and
(ii)whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i)the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii)he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.
Submissions
Submissions of Fourtree Lawyers
Fourtree Lawyers submitted there was a surplus of support staff which resulted in Ms Hughes being advised on 24 January 2024 of a restructure and that her position may be made redundant. On 29 January 2024, Mr Vierboom and Mr Hickey met with Ms Hughes and Ms Page to discuss redundancy. Ms Hughes was asked whether she had any response to the proposed redundancy to which she did not. Ms Hughes was advised that she would be made redundant and that Fourtree was preparing a deed.
Fourtree Lawyers submitted that Ms Hughes was pregnant, had specified her last day of work to be 16 February 2024 and was aware that she was not entitled to parental leave as she had not been employed for 12 months. Ms Hughes was given a choice to resign and sign a deed, and cease work immediately, or otherwise cease work on 16 February 2024. After considering her position, Ms Hughes accepted the offer and informed office staff of her last day of employment.
Fourtree Lawyers submitted that Ms Hughes did not return the executed deed and did not return to work. If Ms Hughes had not resigned, she was due at work. Rather than attend work, Ms Hughes, on 31 January 2024, advised by email that she would respond to Mr Vierboom by 2 February 2024. Ms Hughes did not respond, and did not attend work. At the end of the day on 5 February 2024, Ms Hughes was paid consistent with her resignation. The payment made was not a notice of termination but a payment made consequent upon Ms Hughes’ resignation. The payment was a consequential, not an operative, act.
It was not then open to Ms Hughes to deny that she resigned. Fourtree lawyers did not terminate Ms Hughes’ employment on 5 February 2024.
Fourtree Lawyers submitted that Ms Hughes, by accepting Mr Vierboom’s proposal, resigned from her employment. If that is not the case, by failing to return to work, Ms Hughes abandoned her employment. Ms Hughes was expected to work until 16 February 2024 but did not report for work. Fourtree Lawyers was not required to contact Ms Hughes in relation to when she would return to work. Ms Hughes’ conduct is consistent with a person who had ceased work.
Fourtree Lawyers submitted Ms Hughes’ resignation was not ‘at the initiative of the employer’ as that term is understood in s 386(1)(a). This is not a case of resignation ‘in the heat of the moment’, or caused by emotional stress or mental confusion. There was no ‘jostling’. Ms Hughes’ resignation was not ‘forced’ as that term is understood in s 386(1)(b). Rather than Ms Hughes having no effective or real choice but to resign, her employment was to end on 16 February 2024 in any event. This was not a case that if the employer had not taken the action it did, the employee would have remained in the employment relationship.
Submissions of Ms Hughes
Ms Hughes submitted that at around 1.30pm on 29 January 2024 she was either dismissed or constructively dismissed by Fourtree Lawyers when she attended a meeting purportedly to consult about her pending redundancy but which was actually about the terms of a deed. There is no evidence before the Commission that there was a genuine discussion regarding potential redeployment or a different work arrangement to avoid Ms Hughes being made redundant. Instead, Mr Vierboom seemed very keen to ‘wrap things up’ in a deed that signed all of Ms Hughes’ rights away including those that were unrelated to the redundancy including all claims for underpayments and annual leave.
Ms Hughes submitted in the alternative at around 4.00pm on 29 January 2024 she was either dismissed or constructively dismissed when she was given a deed and told to ‘tell people she resigned’ and to ‘just disappear’. Ms Hughes submitted that she was deprived of a genuine choice about her future in that she was not able to explore continuing in a different role or working with reduced hours.
Ms Hughes further submitted in the alternative on 5 February 2024 she was dismissed when she was given her final payslip by Fourtree Lawyers.
Ms Hughes submitted that overall Fourtree Lawyers’ actions in:
1. identifying Ms Hughes for redundancy on 24 January 2024 despite the fact that she was going to take parental leave on 16 February 2024,
2. the remark ‘here’s what’s going to happen’,
3. the provision of the deed,
4. the direction to tell staff of her ‘resignation’ coupled with the remark ‘to just disappear’, and
5. the payment of 1 weeks’ notice on 15 February 2024.
separately and collectively amounted to conduct designed to bring Ms Hughes’ employment to an end, or conduct that had the probable result of bringing the employment relationship to an end.
Finally, Ms Hughes submitted that her actions do not constitute the common law understanding of abandonment of employment. There was no contact by Fourtree Lawyers enquiring as to when Ms Hughes would return to work. Instead, the evidence was all about when Fourtree Lawyers could expect the deed to be returned. Further, the fact that Fourtree Lawyers provided Ms Hughes with pay in lieu of notice is wholly inconsistent with the concept of abandonment of employment.
Consideration
I have considered the submissions made by the parties and all the evidence in my determination of this matter and the conclusions I have reached.
Ms Hughes alleged that she was terminated by Fourtree Lawyers because she exercised various workplace rights including requesting flexible working arrangements and making inquiries about employment and workplace changes and because of her pregnancy. However, these claims cannot be determined until the Commission deals with the matter under s.368, and only if the Commission issues a certificate of attempted conciliation under s.368(3). Under s.368, the Commission may deal with the matter in numerous ways including by mediation or conciliation, or by making a recommendation or expressing an opinion.
If there is a dispute as to whether the alleged dismissal the subject of the application has occurred, this is a preliminary issue which, according to the Federal Court Full Court decision in Coles Supply Chain Pty Ltd v Milford,[18] ‘must be resolved before the powers conferred by s.368 can be exercised at all’.[19]
In this regard, the Full Bench in Lipa Pharmaceuticals Ltd v Mariam Jarouche[20] stated:
Where the respondent to a s 365 application contends, in its response to the application or otherwise, that the application was not validly made because the applicant was not dismissed, this must be determined prior to the Commission ‘dealing’ with the dispute under s 368 including by conducting a conciliation conference.[21]
As Fourtree Lawyers has claimed that Ms Hughes was not dismissed, I must find that a dismissal occurred before conducting a conciliation conference or otherwise dealing with this matter under s.368.
Fourtree Lawyers claimed that Ms Hughes resigned from her employment on 29 January 2024, or in the alternative abandoned her employment by failing to attend work between 29 January 2024 and 5 February 2024.
The expression ‘termination at the initiative of the employer’ is well understood to be a reference to a termination that is brought about by an employer, and which is not agreed to by the employee. In circumstances where the employment relationship is not left voluntarily by the employee, the focus of the inquiry is whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment.[22]
The usual position is that where an employee uses unambiguous words of resignation, the employer is entitled to treat this as an effective resignation which operates to terminate the employment.[23] Mr Hickey’s or Mr Vierboom’s subjective beliefs as to whether Ms Hughes resigned are not determinative as to whether she in fact resigned. Neither are Ms Hughes’ subjective intentions. Rather, it depends upon what a reasonable person in the position of the parties would have understood was the objective position, based on what each party to the conversation had said or done, in light of the surrounding circumstances.[24]
At the outset, I note that there is an issue between the parties in relation to whether, if her employment had not ceased earlier, Ms Hughes’ employment would have ended on 16 February 2024 which is the date that she nominated as her last day of work before her baby was due. Ms Hughes’ email to Ms Randall dated 21 November 2023 referred to her ‘leave dates’ and that her ‘official last date will be the 16th of February 2024’. During the hearing, Fourtree Lawyers pointed to Ms Hughes having less than 12 months service and therefore not being entitled to parental leave under the FW Act. This may be the case, however there would have been no legislative impediment to Ms Hughes and Fourtree Lawyers agreeing that Ms Hughes could take a specified period of unpaid leave coinciding with the birth of her baby. In any event, there is no evidence that any discussions took place between Ms Hughes and any person on behalf of Fourtree Lawyers prior to 29 January 2024 about whether Ms Hughes’ employment would cease on 16 February 2024 or whether she would be permitted to take unpaid leave. I note that Mr Vierboom’s evidence was that he became aware in November 2023 that Ms Hughes intended to finish her employment on 16 February 2024.[25]
Did Ms Hughes resign on 29 January 2024?
The event which led to the cessation of Ms Hughes’ employment with Fourtree Lawyers was the letter which Fourtree Lawyers issued to Ms Hughes on 24 January 2024 initiating a consultation process due to ‘Major Workplace Change – Potential Redundancy’. I have some difficulty in understanding why Mr Vierboom initiated this process given his view that Ms Hughes’ employment would come to an end on 16 February 2024 and his concerns about confidentiality as outlined in the letter.
As a Legal Secretary/Paralegal, Ms Hughes’ employment was covered by the Legal Services Award 2020 (the Award). Clause 29 of the Award deals with consultation about major workplace change and provides:
29.Consultation about major workplace change
29.1If an employer makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must:
(a)give notice of the changes to all employees who may be affected by them and their representatives (if any); and
(b)discuss with affected employees and their representatives (if any):
(i)the introduction of the changes; and
(ii)their likely effect on employees; and
(iii)measures to avoid or reduce the adverse effects of the changes on employees; and
(c)commence discussions as soon as practicable after a definite decision has been made.
29.2For the purposes of the discussion under clause 29.1(b), the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including:
(a)their nature; and
(b)their expected effect on employees; and
(c)any other matters likely to affect employees.
29.3Clause 29.2 does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer’s interests.
29.4The employer must promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussion under clause 29.1(b)Error! Reference source not found..
29.5In clause 29 significant effects, on employees, includes any of the following:
(a)termination of employment; or
(b)major changes in the composition, operation or size of the employer’s workforce or in the skills required; or
(c)loss of, or reduction in, job or promotion opportunities; or
(d)loss of, or reduction in, job tenure; or
(e)alteration of hours of work; or
(f)the need for employees to be retrained or transferred to other work or locations; or
(g)job restructuring.
29.6Where this award makes provision for alteration of any of the matters defined at clause 29.5, such alteration is taken not to have significant effect.
The letter of 24 January 2024 set out the following process for consultation:
· A meeting would take place at 11:00am on 29 January 2024 with Ms Hogan, Mr Hickey and Mr Vierboom.
· Ms Hughes was permitted to have a support person but this person could not be a past or present employee of Fourtree Lawyers and would not be permitted to advocate or speak on Ms Hughes’ behalf.
· At the meeting the following matters would be discussed:
o How the potential redundancy will impact Ms Hughes;
o Any information or responses Ms Hughes wish Fourtree Lawyers to consider; and
o Any options for Ms Hughes to be redeployed in another role within Fourtree Lawyers.
· A further meeting would take place on 31 January 2024 to consider Ms Hughes’ responses. After the consultation period, an evaluation would be carried out in relation to Fourtree Lawyers’ future need for Ms Hughes’ position.
In setting out this process, the letter appeared to be outlining the steps that clause 29 of the Award required Fourtree Lawyers to follow. However, according to Mr Vierboom’s evidence, none of the matters noted above, apart from seeking Ms Hughes’ response to the redundancy, were discussed. There was no discussion about how the potential redundancy will impact Ms Hughes or any options for Ms Hughes to be redeployed in another role within Fourtree Lawyers. There was no discussion about the foreshadowed meeting on 31 January 2024. Instead, the meeting moved into a ‘without prejudice’ discussion which Ms Hughes had not been forewarned about.
In written submissions Fourtree Lawyers contended that Ms Hughes was given a choice to resign and sign a deed, and cease work immediately, or otherwise cease work on 16 February 2024. However there was no evidence that Ms Hughes was ever advised by Mr Vierboom during the consultation meeting that working until 16 February 2024 was an option that was available to her.
Ms Hughes was at a particular disadvantage in the consultation meeting as she did not have a representative as she was entitled to under clause 29 of the Award. The reference to ‘representative’ in clauses 29.1(a), 29.1(b), 29.2 and 29.4 contemplates more than an observer. A representative would ordinarily be expected to act on behalf of, speak for or advocate for the person they are representing. In the context of consultation under an industrial instrument, a representative of a person affected by workplace change would usually have knowledge of or experience in workplace relations.
Ms Hughes has been studying law for approximately one year and has worked as a paralegal for eighteen months. She was a junior employee of Fourtree Lawyers. There is no evidence that Ms Hughes had any detailed knowledge of her rights under the Award or the FW Act or any expertise in workplace law. In contrast, Fourtree Lawyers was represented at the meeting by Mr Vierboom, who at that time had been the principal of Fourtree Lawyers for over nine years, and Mr Hickey, who is described by Mr Vierboom as an employment lawyer.[26] This created an obvious power imbalance between Ms Hughes and her employer which was further exacerbated by Mr Vierboom’s direction that the person attending the meeting with Ms Hughes could not be a past or present employee of Fourtree Lawyers and would not be permitted to advocate or speak on Ms Hughes’ behalf.
In my view this direction was both misleading and unreasonable. It was unreasonable to prevent Ms Hughes from having a past or present employee of Fourtree Lawyers attend the meeting with her as this reduced the pool of people available to attend the meeting. The time of the consultation meeting changed on multiple occasions apparently without regard to whether this would cause inconvenience to Ms Page. Further, Ms Page was not available to attend the second meeting on 29 January 2024 where the Deed was discussed, with the result that no one attended the meeting with Ms Hughes as she was not permitted to ask current staff members.[27] Mr Vierboom claimed that the reason for this was confidentiality however it is not clear on the face of the letter dated 24 January 2024 why confidentiality was required or why this could not have been dealt with by asking the person attending the meeting with Ms Hughes to provide an undertaking with respect to confidentiality. It was misleading and potentially unlawful because constraining the role of the person attending the meeting with Ms Hughes deprived Ms Hughes of her right to be represented under the Award during discussions with her employer about the proposed redundancy.
If Ms Hughes had been represented at the meeting, it is possible that the outcome of the meeting would have been different. If Ms Hughes had been represented at the meeting by a person with knowledge of workplace law, I believe that it is less likely that Mr Vierboom would have been permitted to depart from discussing with Ms Hughes the matters outlined in his letter of 24 January 2024 and scheduling a further meeting with Ms Hughes on 31 January 2024.
Given Mr Hickey had prepared the Deed at the time of the first meeting, it is clear that Mr Vierboom had decided before that meeting that he would propose to Ms Hughes that her employment would cease on the grounds of a resignation that day and that she would be required to sign a Deed of Release. In my view, it was inappropriate and inconsistent with Fourtree Lawyers’ obligations under clause 29 of the Award to in effect cease the consultation meeting and immediately commence discussions on a ‘without prejudice’ basis, particularly since Ms Hughes did not have the benefit of representation to assist her with these discussions.
There is also no satisfactory reason advanced by the Fourtree Lawyers as to why it was necessary to have ‘without prejudice’ discussions with an employee who it regarded as ceasing employment in less than three weeks. The proposal advanced by Fourtree Lawyers would have resulted in Ms Hughes receiving one days additional pay than if she had remained working until 16 February 2024. To the extent that the proposal may have provided a benefit to Ms Hughes, it was not significant nor one that she had requested. Fourtree Lawyers was not set to save any money by initiating the consultation process then making a ‘without prejudice’ offer to Ms Hughes. In the absence of any other explanation, the only rational conclusion that can be reached about this matter is that Fourtree Lawyers wanted Ms Hughes to release them from future claims.
Putting to one side the purpose of the ‘without prejudice’ discussions, Mr Vierboom should have alerted Ms Hughes before the meeting that he wished to have these discussions. If Ms Hughes wanted to participate in such discussions, they could have taken place in parallel with the consultation discussions and the outcome of the consultation discussions could have informed the position which Ms Hughes took in relation to Mr Vierboom’s proposal. The letter of 24 January 2024 indicated that Ms Hughes was likely to know by the second meeting on 31 January 2024 the outcome of the consultation process. If the consultation had been completed rather than cut short by Mr Vierboom, Ms Hughes would have known on 31 January 2024 whether there were any redeployment options or whether her employment was likely to cease on redundancy grounds before 16 February 2024. She could have had regard to these matters in considering Mr Vierboom’s proposal. Instead, Ms Hughes agreed to the proposal on 29 January 2024 in circumstances where she did not know the outcome of the consultation process, was not aware that the proposal was going to be made and without the benefit of legal advice and representation. Much was made by Fourtree Lawyers of Ms Hughes’ happy disposition at the time that the ‘without prejudice’ proposal was made and accepted. In my view, the concerning aspects of the consultation meeting are not diminished simply because Ms Hughes, in the absence of legal advice and representation, may have been initially happy and willing to accept Mr Vierboom’s proposal.
In its letter to Ms Hughes dated 5 February 2024, Fourtree Lawyers claimed the following matters were consistent with its view that Ms Hughes had resigned:
Ms Hughes offered to resign her employment effective immediately after receiving the Deed;
Ms Hughes indicated that she would accept the offer detailed in the Deed and would return the signed deed the next day;
A short time later Ms Hughes made representations to several staff in the office that she would not be returning to work.
In my view, these assertions are not supported by the evidence of Fourtree Lawyers. Neither Mr Vierboom or Mr Hickey who were present at the meeting where the Deed was provided to Ms Hughes gave evidence that Ms Hughes offered to resign from her employment effective immediately after receiving the Deed. I therefore do not accept that this occurred.
In relation to Ms Hughes’ advice that she would accept the offer detailed in the Deed and would return the signed deed the next day, I note that Fourtree Lawyers does not assert that Ms Hughes’ agreement to the proposal was binding whether the Deed was signed or not. If this was the case, Fourtree Lawyers would have provided three weeks’ pay in lieu of notice to Ms Hughes when providing her final pay on 5 February 2024. It did not do this. In the circumstances, I find based on the evidence before me that Ms Hughes’ agreement to resign was contingent upon Ms Hughes entering into a Deed of Release with Fourtree Lawyers and therefore of no effect until the Deed was signed.
The Deed required Ms Hughes to warrant that prior to entering into the Deed she had an opportunity to obtain legal financial, accounting and taxation advice in relation to the nature, effect and extent of this Deed. In these circumstances, Mr Vierboom, being an experienced lawyer, should have expected that Ms Hughes would obtain legal advice and that there was a possibility that Ms Hughes would change her mind as a result of obtaining that advice. It is therefore unclear why Mr Vierboom did not account for this possibility and why he informed Ms Hughes that she could leave Fourtree Lawyers on 29 January 2024 before the Deed was signed.
In relation to Ms Hughes’ representations to staff, I note that the evidence of Ms Jenkins and Ms Goodwin is that Ms Hughes advised them that 29 January 2024 ‘would be her last day’. This evidence does no more than confirm Mr Vierboom’s evidence that he informed Ms Hughes that she could leave work that day. It is not evidence which confirms that Ms Hughes resigned.
I find that Ms Hughes did not use unambiguous words of resignation, therefore I must consider what a reasonable person in the position of the parties would have understood was the objective position, based on what each party to the conversation had said or done, in light of the surrounding circumstances. I have found that Ms Hughes’ agreement to resign was contingent upon Ms Hughes entering into a Deed of Release and that her advice to staff was consistent with Mr Vierboom’s evidence that he informed Ms Hughes that she could leave work that day. As Ms Hughes did not sign the Deed of Release, I consider that a reasonable person in the position of the parties would have understood that Ms Hughes did not resign on 29 January 2024 or at any other time.
Did Ms Hughes abandon her employment?
Fourtree Lawyers’ alternative submission is that Ms Hughes abandoned her employment.
In the 4 yearly review of modern awards Abandonment of Employment Decision[28], the Full Bench described abandonment of employment in the following way:
[21] ‘Abandonment of employment’ is an expression sometimes used to describe a situation where an employee ceases to attend his or her place of employment without proper excuse or explanation and thereby evinces an unwillingness or inability to substantially perform his or her obligations under the employment contract. This may be termed a renunciation of the employment contract. The test is whether the employee’s conduct is such as to convey to a reasonable person in the situation of the employer a renunciation of the employment contract as a whole or the employee’s fundamental obligations under it. Renunciation is a species of repudiation which entitles the employer to terminate the employment contract. Although it is the action of the employer in that situation which terminates the employment contract, the employment relationship is ended by the employee’s renunciation of the employment obligations.
[22] Where this occurs, it may have various consequences in terms of the application of provisions of the FW Act. To give three examples, first, because the employer has not terminated the employee’s employment, the NES requirement in s 117 for the provision of notice by the employer, or payment in lieu of notice, will not be applicable. Second, if a modern award or enterprise agreement provision made pursuant to s 118 requiring an employee to give notice of the termination of his or her employment applies, a question may arise about compliance with such a provision. Third, if the employee lodges an unfair dismissal application, then the application is liable to be struck out on the ground that there was no termination of the employment relationship at the initiative of the employer and thus no dismissal within the meaning of s 386(1)(a) (unless there is some distinguishing factual circumstance in the matter or the employee can argue that there was a forced resignation under s 386(1)(b)). (footnotes omitted).[29]
There is no evidence which supports a finding that Ms Hughes ceased to attend her place of employment without proper excuse or explanation. The reason that Ms Hughes ceased attending her workplace was because Mr Vierboom told her she could leave on 29 January 2024. This occurred in the context of a consultation meeting earlier that day which was not held in accordance with the requirements of the Award and Mr Vierboom initiating ‘without prejudice’ discussions with the intention of concluding Ms Hughes’ employment that day, which Ms Hughes had no prior notice of.
Mr Vierboom did not communicate to Ms Hughes what she should do if she decided not to sign the Deed after leaving the workplace. In particular, Mr Vierboom did not tell Ms Hughes on 29 January 2024 or at any other time that she should attend work on 30 January 2024 or another day that week if she decided not to sign the Deed. It was open for Mr Vierboom at any time to direct Ms Hughes to attend work but he did not do so. All of Mr Vierboom’s actions from the time he presented the draft Deed to Ms Hughes, assessed on an objective basis, indicated that he did not want Ms Hughes to attend the workplace after 29 January 2024. I therefore do not accept that Ms Hughes abandoned her employment or that her conduct otherwise constituted a renunciation of her employment contract or her fundamental obligations under it.
Finally the actions of Fourtree Lawyers in paying Ms Hughes one weeks pay in lieu of notice is inconsistent with the employment having been terminated other than on the initiative of Fourtree Lawyers.[30] Fourtree Lawyers enclosed a copy of Ms Hughes’ ‘final payslip’ in its letter dated 5 February 2024 and referred to her ‘final pay from the Company which is [her] statutory notice’. The letter also thanked Ms Hughes for her service. The letter made it clear that Fourtree Lawyers regarded Ms Hughes’ employment as being at an end. There was no reasonable basis for Fourtree lawyers to conclude that Ms Hughes had resigned or abandoned her employment. In the circumstances I find that Ms Hughes’ employment was terminated at the initiative of Fourtree Lawyers by its letter dated 5 February 2024.
Conclusion
Taking into account the parties’ submissions and the evidence before me, I find that the letter which Fourtree Lawyers sent to Ms Hughes and Mr Bolwell on 5 February 2024 was the principal contributing factor which resulted directly or consequentially in the termination of Ms Hughes’ employment. Therefore, Ms Hughes’ employment was terminated on the initiative of the Respondent on 5 February 2024.
There is no evidence that establishes, and the parties have not submitted, that the exemptions in s 386(2)(a)-(c) apply. Accordingly, I find that Ms Hughes has been dismissed within the meaning of s 365 of the FW Act.
The jurisdictional objection raised by Fourtree Lawyers is dismissed and I order accordingly.
The matter will shortly be listed for Conference so that the Fair Work Commission can deal with the matter as required by s 368 of the FW Act.
DEPUTY PRESIDENT
Appearances:
K Bolwell, of WorkLawyers, for the Applicant
J Fernon SC, of Counsel, for the Respondent
Hearing details:
2024
May 21
MS Teams
[1] Statement of Tamrah Hughes dated 30 April 2024, [1], [4]-[6].
[2] Statement of Kevin Vierboom dated 16 April 2024, [2]-[3].
[3] Statement of Tamrah Hughes dated 30 April 2024, [8]-[9].
[4] Ibid, [11].
[5] Ibid, [42].
[6] Ibid, [48].
[7] Statement of Chelsea Page dated 30 April 2024, [4]-[8].
[8] Statement of Kevin Vierboom dated 16 April 2024, [32].
[9] Statement of Mitchell Hickey dated 16 April 2024, [19]-[20].
[10] Statement of Kevin Vierboom dated 16 April 2024, [35].
[11] Statement of Alana Goodwin dated 16 April 2024; Statement of Cidney Jenkins dated 16 April 2024, [8].
[12] Statement of Kevin Vierboom dated 16 April 2024, [37].
[13] Ibid.
[14] Ibid.
[15] Ibid, [38].
[16] Ibid.
[17] Ibid, [39].
[18] [2020] FCAFC 152.
[19] Ibid, [67].
[20] [2023] FWCFB 101.
[21] Ibid, [23].
[22] Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 625; 62 IR 200.
[23]Bupa Aged Care Australia Pty Ltd v Shahin Tavassoli[2017] FWCFB 3941, [35].
[24] Koutalis v Pollett [2015] FCA 1165; 235 FCR 370.
[25] Statement of Kevin Vierboom dated 16 April 2024, [27].
[26] Statement of Kevin Willaim William Vierboom dated 16 April 2024, [40].
[27] Evidence given by Ms Hughes in cross-examination.
[28] [2018] FWCFB 139.
[29] Ibid, [21]-[22].
[30] Boguslaw Bienias v Iplex Pipelines Australia Pty Limited[2017] FWCFB 38, [48].
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