Torres v BHP Billiton Minerals Pty Ltd - [2021] WADC 28

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   TORRES -v- BHP BILLITON MINERALS PTY LTD [2021] WADC 28
CORAM:   FLYNN DCJ
HEARD:   30 SEPTEMBER, 1 OCTOBER & 26 NOVEMBER 2020
DELIVERED          :   30 MARCH 2021
FILE NO/S:   CIV 1873 of 2019
BETWEEN:   FELIPE CARNEIRO DA CUNHA TORRES
Plaintiff
AND
BHP BILLITON MINERALS PTY LTD
Defendant

Catchwords:

Industrial law - Contract of employment - Plaintiff informed by letter of redundancy if he 'was unable to be redeployed' - Whether letter varied contract of employment - Construction of contract of employment - Whether plaintiff made an offer of alternative employment before position made redundant - Turns on own facts

Legislation:

Nil

Result:

Judgment for the defendant
Plaintiff's action dismissed

Representation:

Counsel:

Plaintiff	:	Mr P A Nevin
Defendant	:	Mr R J Price

Solicitors:

Plaintiff	:	Taylor Smart
Defendant	:	Herbert Smith Freehills

Case(s) referred to in decision(s):

Black Box Control Pty Ltd v Terravision Pty Ltd [2016] WASCA 219
BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266
Broadlex Services Pty Ltd v United Workers' Union [2020] FCA 867
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337
Commonwealth Bank of Australia v Barker [2014] HCA 32
Equuscorp Pty Ltd v Haxton [2012] HCA 7, (2012) 246 CLR 498
FBIS International Protective Services (Aust) Pty Ltd v Maritime Union of Australia [2015] FCAFC 90
Gallagher v BHP Billiton Nickel West Pty Ltd [2016] FCCA 3367
National Tertiary Education Union v La Trobe University [2014] FCA 1330
Newton v Australian Postal Corp (No 2) [2019] FCA 2192
R v Industrial Commission of South Australia; Ex parte Adelaide Milk Co-operative Ltd (1977) 16 SASR 6
Re Clothing Trades Award 1982(1) [1990] AIRC 980; (1990) 140 IR 123
Sensis Pty Ltd v Gundi [2017] FCA 1519
TRA Global Pty Ltd v Kebakoska [2011] VSC 480
Yousif v Commonwealth Bank of Australia (2010) 193 IR 212

FLYNN DCJ:

Introduction

The plaintiff (Mr Torres) was employed by the defendant (the Company) as a 'manager, project area delivery' in a project in the Pilbara known as 'South Flank'. His employment was on written terms identified in a letter of offer dated 7 November 2017 (the Employment Contract). Clause 29 of the Employment Contract makes provision for payment of a benefit (the Redundancy Benefit) to Mr Torres if his position with the Company is made redundant and 'there is no suitable alternative employment'. By a letter dated 5 June 2018 (the Redundancy Letter), the Company informed Mr Torres that his position was being made redundant. The Redundancy Letter stated that if Mr Torres 'was unable to be redeployed by 3 July 2018, his termination would take effect and his redundancy payment would be processed'.
The Company contends that, before 3 July 2018, it identified a suitable alternative role for Mr Torres by creating a new position of 'manager, logistics' in South Flank and this fact was orally…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Torres v BHP Billiton Minerals Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] WADC 28
Decision Date: 30 MARCH 2021

CaseChat Overview and Summary

In Torres v BHP Billiton Minerals Pty Ltd, the plaintiff, Mr Torres, contested the termination of his employment by the defendant, BHP Billiton Minerals Pty Ltd. The primary dispute centred on whether a letter issued by the defendant constituted a valid variation of the terms of his employment contract, specifically regarding the conditions under which his employment could be terminated. The Federal Court of Australia was tasked with interpreting the terms of the Redundancy Letter and determining whether it amounted to a variation of the original employment contract.

The court had to decide whether the Redundancy Letter, which stated that Mr Torres' employment would terminate if he was unable to be redeployed by a specified date, effectively varied the employment contract. The defendant argued that the letter was a conditional notice of termination or an intention to terminate employment, while the plaintiff contended that it did not constitute a valid variation under the terms of the contract. The court also needed to determine if the letter could be seen as a mutual agreement to terminate the employment on a specific date, conditional upon the non-availability of alternative employment.

The court found that the Redundancy Letter did not vary the employment contract as argued by the defendant. The language used in the letter was imperative and unequivocal, indicating a mutual intention that Mr Torres' employment would terminate on a specific date if certain conditions were met. However, the court held that the letter did not expressly or impliedly contemplate the exercise of the power to terminate employment by either method provided for in the contract, such as making a payment in lieu of notice or giving four weeks' written notice. Consequently, the Redundancy Letter was not a conditional notice or a notice of intention as claimed by the defendant. Additionally, the court determined that the negative condition specified in the Redundancy Letter did not contradict the negative condition in the original contract regarding the availability of suitable employment.

The court concluded that the Redundancy Letter did not amount to a valid variation of the employment contract. The court's decision hinged on the interpretation of the letter's language and the absence of an express or implied contemplation of the exercise of the termination power as outlined in the contract. The court rejected the defendant's argument that the letter was a conditional notice or a notice of intention to terminate employment.

In light of the findings, the court did not need to make further orders as the primary issue regarding the variation of the employment contract had been resolved in favor of the plaintiff.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The defendant argues that the Redundancy Letter is a conditional notice of termination of the Employment Contract[17] or a notice of intention to terminate employment.[18] The Redundancy Letter was said to be notice that, upon satisfaction of the condition that no suitable alternative employment was found for Mr Torres by 3 July 2018, his employment terminated with immediate effect pursuant to the provision of cl 31(a) of the Employment Contract providing for four weeks salary as notice in lieu.[17] DCWS at par 13.2; See Fardell v Coates Hire Operations PtyLtd [2010] NSWSC 346 [93].[18] DCWS at par 16(a). The Redundancy Letter, objectively, reveals a mutual intention that Mr Torres' employment terminate on 3 July 2018, unless suitable alternative employment was identified. The language of the Redundancy Letter is imperative, unequivocal and reflective of terms that appear in cl 31 of the Employment Contract. It is supported by consideration in the form of a mutual variation of the Employment Contract. In one sentence, the Redundancy Letter states that if Mr Torres is 'unable to be re‑deployed by 3 July 2018', the 'termination of his employment' is to take effect on that date. In the following sentence, Mr Torres is informed that his final pay will be made following his 'last day of employment'. In context, his 'last day of his employment' is synonymous with the contemplated date of termination of his employment ie 3 July 2018. A reasonable person reading both the Employment Contract and the Redundancy Letter, would understand that the parties had, conditionally, agreed to 3 July 2018 being Mr Torres' last day of employment without any further step being taken by either party. The Company may have enjoyed the power under cl 31(a) to terminate employment by making a payment in lieu of notice or by giving four weeks written notice. However, the Redundancy Letter does not expressly or impliedly contemplate the exercise of the power to terminate on 3 July 2018 by either method. The letter states, simply, that Mr Torres' employment will terminate on 3 July 2018, conditional upon no suitable alternative employment being obtained. So construed, the letter is not a conditional notice or a notice of intention as submitted by the Company. The Clause 31 Variation is conditional. The Redundancy Letter expresses the relevant negative condition in terms of Mr Torres being 'unable to be deployed' by 3 July 2018. However, for the reasons noted above when rejecting the Clause 29 Variation, those words, objectively, are not intended to vary or contradict the negative condition found in cl 29 of the Employment Contract. The negative condition which must be satisfied before the employment of Mr Torres terminates on 3 July 2018 is the same negative condition which must be satisfied before the Redundancy Benefit is payable, namely, 'there is no suitable employment within the Company'. The result of the Clause 31 Variation is to remove the power of the Company and Mr Torres to give written notice (or payment in lieu) to the other of termination of Mr Torres' employment.