Turnbull v Symantec (Australia) Pty Ltd
[2013] FCCA 1771
•1 November 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TURNBULL v SYMANTEC (AUSTRALIA) PTY LTD | [2013] FCCA 1771 |
| Catchwords: INDUSTRIAL LAW – Whether employer took adverse action against employee because the employee had taken parental leave – whether at the time the employee returned from parental leave there was an available position for which the employee was qualified and suited nearest in status and pay to the pre-parental position – whether a position located in an overseas company related to the employer is an “available position” – whether employee suffered loss as a result of employer’s contraventions of s.351 and s.84 of the Fair Work Act 2009 (Cth). |
| Legislation: Fair Work Act 2009 (Cth), ss.44, 61, 84, 346, 351, 361, 536, 539, 545 |
| Aitken v Construction, Mining, Energy, Timberyards, Sawmills & Woodworkers Union of Australia (1995) 63 IR 1 Australian Licensed Aircraft Engineers Association v International Aviations Service Assistance Pty Ltd (2011) 193 FCR 526 Board of Bendigo Regional Institute and Technology and Further Education v Barclay (2012) 86 ALJR 1044 Burazin v Blacktown City Guardian Pty Limited (1996) 142 ALR 144 Meridian Global Funds Management Asia Limited v Securities Commission [1995] 2 AC 500 Qantas Airways Ltd v Gama (2008) 167 FCR 537 Walker v Citigroup Global Markets Australia Pty Limited (2007) 233 ALR 687 |
| Applicant: | SARAH TURNBULL |
| Respondent: | SYMANTEC (AUSTRALIA) PTY LTD |
| File Number: | SYG 792 of 2012 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 26 August 2013 |
| Delivered at: | Sydney |
| Delivered on: | 1 November 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr I. Latham |
| Solicitors for the Applicant: | James Tuite & Associates Lawyers |
| Counsel for the Respondent: | Ms E. Raper |
| Solicitors for the Respondent: | Baker & McKenzie |
ORDERS
By 8 November 2013 the applicant file and serve written submissions and evidence, if any, on the question of the relief, if any, the applicant seeks on account of the respondent’s contravention of s.536 of the Fair Work Act 2009 (Cth) (Act) and on the question of costs.
By 15 November 2013 the respondent file and serve written submissions and evidence, if any, on the question of relief, if any, the applicant seeks on account of the respondent’s contravention of s.536 of the Act and on the question of costs.
By 22 November 2013 the applicant file and serve any written submissions and evidence, if any, in reply to the submissions and evidence, if any, filed and served by the respondent pursuant to order 2.
Subject to order 5, the hearing of the matters covered by the submissions be set down before Judge Manousaridis at 10.15 on 26 November 2013.
The hearing date referred to in paragraph 4 will be vacated if, by 15 November 2013, the parties notify the Associate to Judge Manousaridis that they consent to the matters covered by the submissions being dealt with in chambers.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 792 of 2012
| SARAH TURNBULL |
Applicant
And
| SYMANTEC (AUSTRALIA) PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
In these proceedings the applicant, Ms Turnbull, makes a number of claims for relief under the Fair Work Act 2009 (Cth) (Act). The first claim, or set of claims, is based on Ms Turnbull’s allegation that the respondent (Symantec) contravened s.351(1) of the Act (adverse action claim). That section prohibits, among other things, an employer from taking “adverse action” against a person who is an employee “because” of that person’s “family or carer’s responsibilities”.
The “adverse action” Ms Turnbull alleges Symantec took against her was its decision in February 2012 to terminate her employment. Ms Turnbull says that Symantec took this adverse action because Ms Turnbull had been on parental leave for eight months that ended just before Symantec decided to terminate her employment. Further, Ms Turnbull alleges that the reason Symantec took the adverse action, namely, her having family or carer’s responsibilities, constituted a “particular reason”, and Symantec’s taking adverse action for that reason would constitute a contravention of s.351 of the Act. Consequently, Ms Turnbull submits, s.361(1) of Act applies to raise the presumption that Symantec took the adverse action because of Ms Turnbull’s family or carer’s responsibilities.
The second claim, or set of claims for relief is based on Ms Turnbull’s allegation that Symantec contravened s.84 of the Act (section 84 claim). That section entitles an employee who has taken unpaid parental leave to return either to his or her “pre-parental leave position” or, if that position no longer exists, to “an available position for which the employee is qualified and suited nearest in status and pay to the pre-parental leave position”. Ms Turnbull alleges that at the time Symantec terminated her employment Symantec had an “available position” Ms Turnbull was qualified and suited to fill, but Symantec failed to make that position available to her.
In answer to the adverse action claim, Symantec accepts that Ms Turnbull was an employee of Symantec; that its decision to terminate her employment constituted adverse action against her; that Ms Turnbull’s claim is a claim that Symantec terminated her employment for a particular reason, namely, her having family or carer’s responsibilities; that Symantec’s termination of Ms Turnbull’s employment for that reason would constitute a contravention of s.351(1) of the Act; and that, for these reasons, it is presumed that Symantec terminated Ms Turnbull’s employment because she had family or carer’s responsibilities, unless Symantec proves otherwise. Symantec submits, however, that it can prove otherwise. It submits that Symantec terminated Ms Turnbull’s employment for the reason that her position, together with the position of other employees, had become redundant following a decision made within the Symantec group of companies to reduce Symantec’s costs.
As to the section 84 claim, Symantec submits that, at the time it terminated Ms Turnbull’s employment, there was no available position for Ms Turnbull to fill or, at any rate, there was no available position for which Ms Turnbull was qualified and suited that was near in status and pay to the position she occupied immediately before she commenced her parental leave.
Ms Turnbull makes a third claim, one based on the allegation that Symantec contravened s.536 of the Act. That section obliges an employer to give a pay slip to each of its employees within one working day of paying an amount to each employee in relation to the performance of work. Ms Turnbull says that Symantec failed to do that in relation to the payment of $68,828.54 Symantec made to Ms Turnbull on 7 March 2012. Symantec does not dispute it contravened s.536 of the Act in relation to that payment.
From this brief statement of Ms Turnbull’s claims, and Symantec’s responses to those claims, it is apparent that the Court is required to resolve three questions. The first is whether, as Symantec contends, Symantec decided to terminate Ms Turnbull’s employment, not because she had taken parental leave, but because her position had become redundant. The second question is whether, at the time Ms Turnbull’s position was made redundant, there was an “available position” near in status and pay to the position Ms Turnbull occupied immediately before she commenced her parental leave and which Ms Turnbull was qualified and suited to fill. The third question, which arises only if I find Symantec contravened s.351 or s.84 of the Act, is what loss, if any, Ms Turnbull suffered as a result of Symantec’s contraventions of one or both of these sections.
Before I consider these issues, it will be useful to set out the facts out of which Ms Turnbull’s claims arise.
Facts out of which claims arise
Symantec is a subsidiary of Symantec Corporation, and is a member of a worldwide group of companies, the ultimate holding company of which is Symantec Corporation.[1] In these reasons, when I intend to refer to the Symantec group of companies as a whole I will use the expression “Symantec group”.
[1] Exhibit F p 11
In addition to Symantec, the Symantec group comprises companies that operate in Singapore, China, Japan, Korea, and India. For a number of purposes, including financial and employment, the operations of these companies are managed as a group by senior managers employed in Singapore by Symantec Asia Pacific Pte Limited (Symantec Singapore). One division within this group is the finance division, and within the finance division there is a group known as “Sales Finance – Controllership”.
Ms Turnbull commenced her employment with Symantec on 1 March 2006. She was employed as a principal financial analyst.[2] In about May 2006 Symantec promoted Ms Turnbull to the position of Financial Controller, Pacific Region.[3] In around October 2009 Symantec again promoted Ms Turnbull to the position of Senior Manager Finance – Pacific Region, Asia Pacific & Japan HQ and Services.[4] In that position, Ms Turnbull was responsible for completing all the planning, forecasting and reporting for the Asia Pacific Region of the Symantec group.[5] She managed a team of six people.[6] Ms Turnbull’s position fell within the “Sales Finance – Controllership” group.
[2] Exhibit F p 1, [4]
[3] Exhibit F p 3, [11]
[4] Exhibit F p 175, [5]
[5] T14.10
[6] T14.35
On about 15 December 2010 Ms Turnbull informed Mr Joseph Ong that she was three months pregnant and that she was thinking of taking eight months maternity leave.[7] Mr Ong was then, as he is now, employed in Singapore by Symantec Singapore. Mr Ong then held, as he now holds, the position of Senior Regional Director, Asia Pacific and Japan.[8] Ms Turnbull informed Mr Ong of her intention to take maternity leave because Mr Ong was Ms Turnbull’s manager.[9]
[7] Exhibit F p 4, [26]
[8] Exhibit F p 174, [1]
[9] Exhibit F p 4, [25]
By email sent to Mr Ong on 3 March 2011, Ms Turnbull attached an application for maternity leave to commence on 20 June 2011 and end on 31 January 2012, and requested Mr Ong approve her application.[10] Ms Turnbull’s application for parental leave was approved by Mr Andrew Casey by email sent on 3 March 2011.[11] Ms Turnbull commenced her maternity leave on 3 June 2011.[12] While on parental leave, Ms Turnbull’s workload was taken over, partly by Mr Ong and partly by her direct reports.[13]
[10] Exhibit F pp 193-195
[11] Exhibit F p 192
[12] Exhibit F p 7 [42]
[13] T64.20
On 9 January 2012 Ms Turnbull sent an email to Mr Ong in which she discussed the possibility of resuming work on 1 February 2012 on a part time basis.[14] By email sent on 30 January 2012, Mr Ong informed Ms Turnbull that he was unable to accommodate Ms Turnbull’s returning to work on a part-time capacity. He said he would be coming to Sydney and would like to meet with Ms Turnbull on 1 February 2012.[15]
[14] Exhibit F p 111
[15] Exhibit F p 108
In the meantime, in late 2011 (so I infer), Mr Ong, as a senior manager with regional responsibilities, was given by those senior to him a cost saving target;[16] and he was required to formulate and make recommendations “with respect to cost cutting initiatives”.[17] Mr Ong was required to formulate recommendations in relation to the Sales Finance – Controllership group.[18] The controllership function was then performed through a number of positions: four in Sydney (which, as I note above, included Ms Turnbull’s position), four in Japan, five in the “Greater China Region”, three in India, two in Korea, and fifteen in Singapore.[19]
[16] T64.5
[17] Exhibit F p 176 [10]
[18] Exhibit F p 175 [8]
[19] Exhibit F pp 175-176 [8]
Although Mr Ong was not in terms requested to terminate the employment of any particular employee in order to reach his costs target,[20] he recommended that the cost target be achieved by eliminating two of the four finance controllership positions in Australia, these being the positions occupied by Ms Turnbull and Ms Lai.[21] In the course of making that decision, Mr Ong prepared in relation to Ms Turnbull and Ms Lai an internal document known as “JPS” which he submitted to Symantec group’s Senior Manager HR Director, Ms Cecelia Ching.[22]
[20] T64.5
[21] Exhibit F p 176 [9]
[22] Exhibit F p 177 [14]
The JPS document was a template that had been prepared by the human resources department of the Symantec group.[23] It was intended to prompt a decision maker to prepare and justify three things, one of which was the “[m]ethod and process followed for identification and selection of employees for termination”.[24] The template identified the things the decision maker should consider. These included the Symantec group being “an equal opportunity affirmative action employer” which did “not permit discrimination based on”, among other things, “any other protected classification”. The template also required the decision maker to consider that the Symantec group “must retain those employees who have demonstrated the most productivity, the greatest adaptability, and who have the skills most suited to our work environment going forward”.
[23] Exhibit F p 176 [11]
[24] Exhibit F p 203
In the JPS document, Mr Ong recorded under the heading “Final Decision” the word “terminate” and under the heading “Describe Basis for Final Decision” the words “Reorg and consolidation into APJ HQ”. Next to the words “Business Rationale” Mr Ong recorded:[25]
Sarah [Turnbull] and Susan [Lai] are both managing APJ activities out from Australia. APJ’s headquarters is in Singapore. Both of them have their teams based in Singapore and Susan’s customer base is also based in Singapore. Furthermore, Australia’s payscale and fringe [sic] are very high and as such, we have decided to move those roles away from Australia. Both their positions will not be backfilled and their responsibilities will be distributed amongst the existing team members.
[25] Exhibit F, Vol 2, p 603
It is possible that the JPS document that is in evidence is a revised version of an earlier draft Mr Ong sent to Ms Ching. That is suggested by an email Ms Ching sent to Mr Ong on 10 January 2012 in which she stated:[26]
We have revised the JPS form and added additional justification. Per Joseph’s confirmation, both the positions will not be backfilled and that the responsibilities will be distributed amongst the existing team members.
[26] Exhibit F p 213
On 31 January 2012, the relevant officer in Symantec Singapore approved the JPS for Ms Turnbull and Ms Lai.[27]
[27] Exhibit F p 177 [213]
On 1 February 2012, Ms Turnbull and Mr Ong met. According to Ms Turnbull, a conversation to the following effect took place:[28]
Mr Ong:After a review of the organization your position has been eliminated. You have 7 days to reseek re-employment within Symantec in a suitable alternative role. You can apply for any other suitable position within the company.
Ms Turnbull: We all know that there are no other suitable positions in Australia.
Mr Ong:Yes I agree. In fact there is nothing in Kathy’s team at all actually.
[28] Exhibit F p 8 [54]
Mr Ong denies Ms Turnbull’s account of the conversation. He says that he attended the meeting with Ms Turnbull to inform her of her redundancy, that before the meeting he had been provided with a script, and that at the meeting he followed the script.[29] The script included the following statements:[30]
A decision has been made by the Company that impacts your role. We are looking to implement a Work Force Reduction to reduce operating costs. As such, your current job is proposed for redundancy, with a termination & last day on Wednesday 15th February 2012.
We are planning to restructure the Pacific region team to reduce our operating costs. As part of this change we plan to re-allocate functions and roles to Singapore.
[29] Exhibit F p 177 [18] [19]. The script is at Exhibit F p 218
[30] Exhibit F p 218 (emphasis in original).
Mr Ong recalls that during the meeting Ms Turnbull said that she had been chosen to be made redundant because she had taken maternity leave, and that Mr Ong said that was not the reason.[31]
[31] Exhibit F p 177 [20]
Immediately after her meeting with Mr Ong, Ms Turnbull emailed Ms Green of Symantec’s “talent acquisition team” to see if there were any roles within Symantec for which Ms Turnbull could apply. Ms Green said: “There are no available suitable roles”.[32]
[32] Exhibit F p 8 [55]
On 8 February 2012, during a telephone conference between Ms Turnbull, Mr Ong and Ms Tan (who worked within the Symantec group’s human resources department), Mr Ong confirmed to Ms Turnbull that she was to be retrenched.[33] Before the meeting, Ms Turnbull had been provided with a bundle of documents, one of which was a letter dated 8 February 2012 from Symantec’s human resources section[34]. The letter stated:
[33] Exhibit F p 9 [60]
[34] Exhibit F p 223
The company has undertaken a review of its organisation and we regret to advise that your position with Symantec has been impacted by the outcome of this review. Effective 2 March 2012, your role is being eliminated.
In the absence of a suitable alternative role, your role will be terminated via redundancy.
The letter also outlined the “separation arrangements that are being put in place for you”. These arrangements included the payments that Symantec was to make to Ms Turnbull. These consisted of five weeks’ pay in lieu of notice and a severance pay equal to sixteen weeks’ salary.
The adverse action claim
The issue on which the resolution of the adverse action claim turns is whether Symantec has proved it did not terminate Ms Turnbull’s employment for a particular reason, namely, Ms Turnbull’s “family or carer’s responsibilities”. For ease of comprehension, I will approach this issue by considering what the evidence proves in relation to the reason or reasons for which Symantec terminated Ms Turnbull’s employment. Before I do this there are four matters I should note.
Preliminary matters
First, it is Symantec’s actual reason or reasons for terminating Ms Turnbull’s employment that I must identify. This follows from the reasons for judgment in Board of Bendigo Regional Institute and Technology and Further Education v Barclay[35] which considered the approach courts should take when assessing whether an employer, contrary to s.346 of the Act, has taken adverse action against an employee because the employee was an officer of an industrial organisation.
[35] (2012) 86 ALJR 1044
In Barclay, Gummow and Hayne JJ said that the focus of the inquiry must be “the reasons of the decision-maker at the time the adverse action was taken”.[36] Heydon J said that to “search for the “reason” for a voluntary action is to search for the reasoning actually employed by the person who acted”, and there was nothing in the Act to suggest that “the courts are to search for “unconscious” elements in the impugned reasoning of persons”.[37] French CJ and Crennan J said that “direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains “why was the adverse action taken”.[38]
[36] At [127]
[37] At [146]
[38] At [44]
Second, although it is Symantec’s actual reason or reasons I must identify, I must locate those reasons in the mind or minds of a particular person or persons who, for the purpose of the decision to terminate Ms Turnbull’s employment, constituted the mind of Symantec.[39] The parties assumed, correctly in my opinion, that it was Mr Ong’s mind that constituted the mind of Symantec for this purpose. Accordingly, my task is to identify the actual reason or reasons on which Mr Ong relied for recommending that Ms Turnbull’s employment be terminated.
[39] Section 793 of the Act; cf Meridian Global Funds Management Asia Limited v Securities Commission [1995] 2 AC 500
Third, I need to be clear about the approach I should take if I find Mr Ong acted for more than one reason and one of those reasons was Ms Turnbull’s “family or carer’s responsibilities” (prohibited reason). Ms Turnbull submits that it is sufficient if one of the reasons was the prohibited reason; it is not necessary that the prohibited reason be the dominant reason.[40] Symantec, on the other hand, submits that the prohibited reason must have been a substantial and operative reason for taking the decision to terminate the employment of Ms Turnbull.
[40] Applicant’s outline submissions, [18]
This question was considered by two of the justices in Barclay. Gummow and Hayne JJ said:[41]
In the light of the legislative history of s 346 and the intention of Parliament outlined above, the reasoning of Mason J in Bowling is to be applied to s 346. An employer contravenes s 346 if it can be said that engagement by the employee in an industrial activity comprised “a substantial and operative” reason, or reasons including the reason, for the employer’s action and that this action constitutes an “adverse action” within the meaning of s 342.
[41] At [104]
Although the other justices did not consider the issue, there is nothing in their reasons to indicate disagreement with this passage. In any event, in my respectful opinion, the reasons of Gummow and Hayne JJ, and in particular their Honours’ review of the legislative history of the relevant provision, compel the conclusion contained in that passage. Accordingly, Symantec will have contravened s.351 of the Act if Ms Turnbull’s “family or carer’s responsibilities” was a substantial and operative reason for Mr Ong’s decision to terminate Ms Turnbull’s employment.
Fourth, although s.351 of the Act requires the Court to identify within the employer’s mind “family or carer’s responsibilities” as a substantial and operative reason for taking the adverse action, the Act does not require that the employer express or formulate in his or her own mind the reasons for which he or she took the adverse action in these terms. It is a matter for the Court to assess whether the reasons as formulated by the employer, and on which the employer relied in taking adverse action, can properly be characterised as “family or carer’s responsibilities”.
Based on these four matters, therefore, I propose to approach the question of whether Symantec has proved it did not terminate Ms Turnbull’s employment for a prohibited reason as follows:
a)First, I must identify the actual reason or reasons for which the decision-maker, Mr Ong, decided to recommend the termination of Ms Turnbull’s employment.
b)Second, I must determine whether that reason or any of those reasons can be fairly characterised as “family or carer’s responsibilities”.
c)Third, if (b) is answered in the affirmative, I must consider whether that reason or any of those reasons constituted a substantial and operative reason for Mr Ong’s deciding to terminate Ms Turnbull’s employment.
Mr Ong’s reasons for terminating Ms Turnbull’s employment
Symantec submitted that the reasons for which Mr Ong decided to terminate Ms Turnbull’s employment are contained in the passage from the JPS document which I have set out in paragraph 18 of these reasons. The premises on which Mr Ong relied for recommending that Ms Turnbull’s employment be terminated, as set out in that document, are as follows:
a)Ms Turnbull was managing Asia Pacific Japan (APJ) activities out from Australia;
b)Ms Turnbull’s team was based in Singapore;
c)Australia’s “payscale and fringe [sic] were very high and as such, we have decided to move those roles away from Australia”;
d)Ms Turnbull’s position will not be backfilled; and
e)her responsibilities “will be distributed amongst the existing team members”.
Paragraphs (a), (b), (c) and (e) of these premises, if read literally, cannot be regarded as entirely accurate at the time Mr Ong completed the JPS document.
a)Ms Turnbull was not managing APJ activities out of Australia. She was not, and since 3 June 2011 she had not been managing anything because she was away from work on parental leave.
b)Ms Turnbull’s team was not based in Singapore. She had no team because she had not been at work to manage any team since 3 June 2011.
c)Mr Ong did not then decide to move Ms Turnbull’s role away from Australia. As I have noted earlier in these reasons, Ms Turnbull’s workload had already been taken over, partly by Mr Ong and partly by Ms Turnbull’s direct reports.[42]
d)The functions Ms Turnbull carried out before she went on parental leave had been redistributed to Mr Ong and to Ms Turnbull’s direct reports after Ms Turnbull commenced her parental leave. It was not, at the time Mr Ong made the recommendation, a question of those functions being redistributed in the future.
[42] T64.20
The JPS document, however, should not be read literally when read in light of the evidence Mr Ong gave under cross-examination. Mr Ong said that his decision “was purely based on the position itself”. There was no similar position to that which Ms Turnbull had occupied: “the position was just removed”.[43] Mr Ong further explained:[44]
[43] T66.40
[44] T66.49-T67.5
. . . . There was only one HQ senior management position, and we decided we don’t need that anymore
Sorry, there was only one what, sorry? - - - HQ, sorry, headquarters . . . . senior management position . . . . So it was based on whether the business ….. needs that position, it wasn’t based on whether she was on maternity, or whether somebody was taking this position.
Mr Ong’s evidence, which I accept, is clear. He decided to terminate Ms Turnbull’s employment because the position she occupied immediately before she commenced her parental leave was one which Symantec no longer required. Stated another way, Mr Ong decided to terminate Ms Turnbull’s employment because the work Ms Turnbull performed had already been allocated to other employees and he concluded that the work could in fact be performed without a person occupying the position that Ms Turnbull occupied immediately before she left for parental leave.
Counsel for Ms Turnbull put to Mr Ong that this was not true. In my opinion, however, there is no basis for not accepting Mr Ong’s evidence. That Symantec no longer needed the position Ms Turnbull occupied was demonstrated by what occurred after she commenced parental leave, and before Mr Ong prepared the JPS. Ms Turnbull’s work was taken over, partly by Mr Ong, and partly by Ms Turnbull’s direct reports.[45]
[45] T64.20
Counsel for Ms Turnbull cross-examined Mr Ong about whether Symantec would have benefited from terminating Ms Turnbull’s employment rather than the employment of other employees because Symantec would not have been required to reallocate the work that had already been allocated when Ms Turnbull commenced her parental leave. Mr Ong initially accepted this was a benefit.[46] Later in his evidence, however, Mr Ong qualified his answer:[47]
On [the] one hand you were saying that it is easier for me to reallocate the task because it was already reallocated, that I agree, because it’s already reallocated, if you want to put it that way, even though it wasn’t a permanent reallocation – so I agree with you on that; but now your statement is I can get actually, costs saving easier . . . because [Ms Turnbull] was on maternity [leave], and that’s not the case – whether she’s on maternity, or not on maternity, there is a cost . . . . [O]nce we take away that position, then you [get] the costs savings.
[46] T62.40
[47] T65.21
Counsel for Ms Turnbull submitted that Mr Ong’s evidence was unsatisfactory. I disagree. Mr Ong agreed that it was easier to reallocate the tasks Ms Turnbull performed for the simple reason that at the time he recommended that Ms Turnbull’s employment be terminated those tasks had already been allocated to existing employees. But he did not agree that Ms Turnbull’s having taken parental leave had anything to do with his recommending that the position she occupied be eliminated. He recommended that it be eliminated because, as demonstrated by the fact that the tasks Ms Turnbull previously carried out had been allocated to existing employees, that position was no longer required to carry out those tasks.
Counsel for Ms Turnbull also submitted that Mr Ong undertook the process required by the JPS in a “desultory” manner. In particular, counsel criticised Mr Ong for not completing that section which required a comparative skills and productivity analysis. These criticisms are not warranted. Mr Ong’s evidence, which I accept, was that such analysis was required when two or more people were being considered for a position. That was not the case here. As I note above, the reason Mr Ong recommended the termination of Ms Turnbull’s employment was that the position she had occupied was no longer required.
Was the reason or one of the reasons on which Mr Ong relied a prohibited reason?
I have concluded that Mr Ong decided to recommend the termination of Ms Turnbull’s employment for the reason that Symantec no longer required the position Ms Turnbull occupied immediately before she commenced her parental leave. The next question is whether this is a reason that can fairly be characterised as “family or carer’s responsibilities”.
In my opinion, it cannot. The reasons in Mr Ong’s mind when deciding whether to terminate Ms Turnbull’s employment did not include her being on parental leave; the reasons were that Ms Turnbull’s tasks had already been allocated to existing employees, those tasks had been and were continuing to be performed by those employees, and there was therefore no need for the position that Ms Turnbull occupied for those tasks to be performed. In my opinion, Mr Ong would have employed the same reasoning for whatever reason Ms Turnbull might have been away from work.
Having said that, I can understand why Ms Turnbull may believe that her employment was terminated because she had taken parental leave. It was her having taken parental leave which led to her tasks being reallocated to existing employees. It could be argued that had Ms Turnbull not taken parental leave those tasks would not then have been allocated, and it may not have become apparent to Mr Ong when the time came for him to decide how to reduce costs that the tasks Ms Turnbull had performed could have been performed by other employees and that, therefore, Mr Ong may have decided to cut costs in a way which would not have involved eliminating Ms Turnbull’s position.
That, however, is not an analysis permitted when applying s.351 and s.361 of the Act. As I noted earlier in these reasons, those sections require me to identify the actual reasons on which Mr Ong relied for recommending that Ms Turnbull’s employment be terminated. Even if, however, it were sufficient to establish a broader causal link than between Ms Turnbull’s taking parental leave and Mr Ong’s actual reasons for terminating her employment, the evidence would not establish such causal link. In my opinion, the probabilities are that, even had Ms Turnbull not taken parental leave, Mr Ong would have arrived at the same conclusion and for the same reasons as those set out in the JPS.
Conclusion on adverse action claim
In my opinion, therefore, Symantec has proved that it did not terminate Ms Turnbull’s employment for reasons that included, as a substantial or operative reason, Ms Turnbull’s having taken parental leave. In my opinion, the evidence goes further and warrants the conclusion that Ms Turnbull’s having taken parental leave was not even one reason on which Symantec relied in terminating her position.
For these reasons, Ms Turnbull’s adverse action claim fails.
Section 84 claim – issues of construction
As I say at the beginning of these reasons, Ms Turnbull alleges that, at the time Symantec terminated her employment, Symantec had an “available position” Ms Turnbull was qualified and suited to fill, but Symantec failed to make that position available to her. The position Ms Turnbull alleges was available to her, and which she says she was qualified and suited to fill, was the position of “Commissions Team Manager” in Symantec Singapore.
Despite, or perhaps because of, the brevity of s.84 of the Act, there are a number of issues of construction in relation to s.84 of the Act which I should address before I consider Ms Turnbull’s claim.
How does an employer contravene s.84 of the Act?
The first issue arises because s.84 of the Act does not itself impose any liability. The section only creates an entitlement. What creates a liability under the Act is an employer’s contravention of the section.[48] But how does an employer contravene an entitlement, such as that provided for by s.84? The answer is not apparent from the text of the Act.
[48] Under s.61(1) of the Act, the entitlement created by s.84 is a “National Employment Standard”. Section 44(1) provides that an employer must not contravene a “provision of the National Employment Standards”. Under s.539 of the Act, s.44 is a “civil remedy provision” which exposes an employer who contravenes s.44 to orders under s.545 of the Act.
In her statement of claim, Ms Turnbull alleges Symantec did not offer Ms Turnbull positions that were available in Singapore.[49] This assumes that the entitlement specified in s.84 of the Act included the employer – in this case Symantec - identifying and offering an available position to the employee. On Ms Turnbull’s approach, therefore, an employer contravenes s.84 of the Act by failing to identify and offer to an employee an available position.
[49] Amended statement of claim, [21] [22]
Symantec, in particulars to its denial of Ms Turnbull’s allegation that Symantec failed to offer to the applicant a position in Singapore, alleges the following:[50]
The Respondent on 1 February 2012 advised the Applicant of her ability to access the Sympeople portal for the purposes of considering any positions that were available as at 1 February 2012 within the business of the Respondent. The Applicant at no stage advised the Respondent of her interest in any position that may have been available or regarded as suitable to the Applicant.
[50] Defence to amended statement of claim, [21]
Thus, Symantec’s position, at least in its pleadings, is that, before an employer can contravene s.84 of the Act, the employee must in some way indicate that he or she asserts the entitlement conferred by s.84.
In my opinion s.84 imposes an obligation on the employer to inform the employee of the existence, if there is one, of an “available position for which the employee is qualified and suited nearest in status and pay to the pre-parental position”, and to offer that position to the employee. To so interpret s.84 promotes the evident purpose of the provision. An entitlement has value only if, and to the extent that, the beneficiary of the entitlement is aware of it. And, particularly in the case of large and complex businesses such as that of Symantec, whether or not there is an “available position” is something that would be peculiarly within the knowledge of the employer, not the employee.
Meaning of “available position”
The second issue of construction relates to the meaning of “available position”.
Counsel for Ms Turnbull submitted that the words “available position” should be given their ordinary meaning, as set out in a dictionary. Counsel submitted that “available” means “capable of being used; at one’s disposal”, and “within one’s reach”.[51] Accordingly, on this interpretation, the position of “Commissions Team Manager” in Symantec Singapore was an “available position” if it was within the reach of Symantec to offer to Ms Turnbull.
[51] The Australian Concise Oxford Dictionary 2nd ed. 1992
Counsel for Symantec, on the other hand, submitted that, for a position to be an “available position”, it must be one that is available within the employer’s business. Counsel submitted that this meant that the “Commissions Team Manager” in Symantec Singapore was not an available position because it was not a position available within Symantec, Ms Turnbull’s employer, but within a separate legal entity. Counsel further submitted that to construe “available position” to include a position that exists outside Australia is to give to the Act an extra territorial effect which it does not have.
In my opinion, to restrict the meaning of “available position” in the manner contended for by counsel for Symantec would be to ignore commonplace features of large-scale and even moderate-scale businesses operating in Australia: global reach and intricate corporate structures set up for tax and accounting reasons. In my opinion, whether or not a position that is available overseas, or is available in a legal entity separate from the employer, is an “available position” for the purpose of s.84 of the Act depends on whether it is within the power of the employer to make that position available. Whether it is within the power of the employer in any given case is a question of fact to be decided in the circumstances of the particular case.
Meaning of “is qualified and suited nearest in status and pay to the pre-parental leave position”
The third question of construction relates to the meaning of the expression “for which the employee is qualified and suited nearest in status and pay to the pre-parental leave position” when used in relation to “available position”. The parties did not make any submissions about the construction of these words; they instead focused on whether the “Commissions Team Manager” position in Singapore was “an available position”.
One difficulty arises from the presence of the word “nearest”. On one interpretation, that requires that the employer must make available to the employee any position however remote from the tasks and status of the pre-parental leave position, provided it is the “nearest”. In my opinion, however, this interpretation gives insufficient weight to the words “suited . . . in status and pay”. Those words imply a degree of comparability between the pre-parental position and the “available position” in terms of status and pay.
In my opinion, s.84 of the Act requires the employer to determine whether there are available positions comparable in status and pay with the pre-parental leave position and, if there are two or more such positions, the employer must make available to the employee the available position which is nearest in pay and status to the pre-parental leave position. If there is no available position comparable in pay or status with the pre-parental leave position, the employer will have no obligation under s.84 to make any position available to the employee.
In any event, whether my preferred construction is correct or not, some method must be applied to enable the Court to determine whether, in any given case, what an employee claims is an “available position” which the employer should have made available to the employee under s.84 of the Act is one for which the employee was qualified and suited and which is nearest in status and pay to the employee’s pre-parental leave position. In my opinion, an unavoidably loose but workable test for answering that question is to ask whether a person, having the qualifications and experience of the employee in question, would seriously consider taking that position. For the purpose of answering that question, it would be relevant to receive direct evidence from the employee in question about whether the employee would have accepted the position if it were offered to the employee. Such evidence, however, would not be conclusive. Objective evidence such as the comparative tasks, pay, and status of the pre-parental leave position and the available position would also be relevant and stand as a measure against which to assess any direct evidence the employee may give.
Resolution of the section 84 claim
Having addressed questions of construction, I propose to approach the section 84 claim by considering the following questions:
a)What was the position Ms Turnbull claims was the “available position”?
b)Was that position an “available position”?
c)If so, was it one for which Ms Turnbull was qualified and suited, and which was nearest in status and pay to the position she occupied immediately before she went on parental leave?
d)If (c) is answered in the affirmative, did Symantec inform Ms Turnbull of the existence of the “available position”?
What was the claimed available position?
The position Ms Turnbull claims was the “available position” Symantec failed to offer her was a position that existed in Symantec in Australia but which, at around the time Symantec decided to terminate Ms Turnbull’s employment, Symantec decided to transfer to Symantec Singapore.[52] Mr Mann occupied that position in Australia.[53]
[52] T68.40
[53] T68.40
Mr Ong described the position Mr Mann occupied in Symantec as “manager of the commission team”.[54] The JPS document that was prepared in relation to Mr Mann by Ms Stobaugh, however, described his position as “Mgr, Finc’l Pln & Analysis”.[55] No submissions were made that this difference is relevant to any question I must decide. Mr Ong described the role of the “commissions team manager” as follows:[56]
[H]e’s the manager of the commission team, which is a very specialised team of people that calculates and credits . . . what we call bookings revenues to different sales reps.
[54] T70.35
[55] Exhibit F p 370
[56] T70.35
Ms Turnbull, in re-examination, described the position as a “finance role looking after and managing a commissions team – a commissions calculation team”.[57] Further, although Mr Mann and his team fell within Symantec’s finance area, Mr Ong said that the commissions team was “not the same kind of work that . . . my broader team does”.[58]
[57] T36.20
[58] T70.35
On or shortly after 1 February 2012 Symantec offered to Mr Mann the position in Singapore.[59] Mr Mann, however, declined the offer by the end of February 2012.[60] I infer that although Mr Mann did not accept the offer, the position which he occupied nevertheless was transferred to Singapore. I further infer that the terms of employment attaching to that position included the payment of an annual salary of approximately USD92,000. I so infer from the following passage from the JPS that was prepared in relation to Mr Mann:[61]
This position, as well as two grade 6 contractor positions, need to be relocated to Singapore in order to hit our FY13 budgets. Sam is the only person being considered as he is the only permanent employee in this department right now. He currently makes ~$156k USD annually, and we can hire a grade 10 manager in Singapore for ~92k USD. The relocation of this position will save in excess of $60k USD per year.
Was the position of “Commissions Team Manager” in Symantec Singapore an “available position”?
[59] Exhibit F p 375
[60] T73.5
[61] Exhibit F p 370
I have concluded that the position of “Commissions Team Manager” became available in Symantec Singapore. I have also concluded that an available position in an overseas office and in a company which is a separate legal entity from that of the employer does not necessarily mean that that position is not an “available position” for the purposes of s.84 of the Act. Whether or not such a position is an available position depends on whether it is within the power of the employer to make such position available. Therefore, whether or not the “Commissions Team Manager” position in Singapore was an “available position” depends on whether it was in the power of Symantec to make that position available to Ms Turnbull.
In my opinion it was within Symantec’s power. The evidence shows that employees of companies other than Symantec had authority to make decisions concerning employees of Symantec. The non-Symantec employees included Mr Ong. They also included those who made decisions relating to Mr Mann. The decisions the non-Symantec employees made included offering to Mr Mann the “Commissions Team Manager” position in Singapore.
From this evidence it is reasonable to infer, and I do infer, that such non-Symantec employees had authority to act jointly on behalf of at least both Symantec and Symantec Singapore. That authority extended to making available to employees of Symantec the “Commissions Team Manager” position in Singapore. That constituted power in the hands of agents of Symantec, and hence power in the hands of Symantec, to offer to Symantec employees the “Commissions Team Manager” position in Singapore. I conclude, therefore, that the “Commissions Team Manager” position in Singapore was an “available position” within the meaning of s.84 of the Act.
Was the “Commissions Team Manager” position in Singapore one for which Ms Turnbull was qualified and suited in status and pay?
I have concluded that the question whether an “available position” is one for which the employee is qualified and suited nearest in status and pay to the pre-parental leave position is to be approached by asking whether an employee having the qualifications and experience of the employee in question would seriously consider taking that position. Accordingly, I must now consider whether the “Commissions Team Manager” position in Singapore was one which a person in the position of Ms Turnbull would have seriously considered taking.
I first turn to Ms Turnbull’s evidence. In her affidavit Ms Turnbull said:
I was not offered any alternative position with Symantec in Sydney, or the option of relocating to Singapore, or of filling any vacant job or elsewhere. If I had been offered to relocate to Singapore I would have considered accepting the offer depending on conditions of relocation and hours as I liked working for Symantec. The lower costs of domestic assistance in Singapore would have been a favourable consideration.”
In cross-examination, it was put to Ms Turnbull that she would not have accepted a position in Singapore if one had been available. Ms Turnbull answered that “she might have, depending on the role”.[62] In addition, Ms Turnbull accepted that, at its highest, her evidence was “that if there had been a job somewhere in Singapore [she] would have considered accepting it, depending on the conditions on relocation, the hours, and the hours you liked working for Symantec”.[63]
[62] T30.25
[63] T39.25
Ms Turnbull did not lead any evidence of the terms and conditions of the “Commissions Team Manager” position in Singapore. She gave no evidence about whether she would have accepted the position had it been offered to her. Ms Turnbull offered no explanation why she led no such evidence. From Ms Turnbull’s silence, I infer that she was not prepared to swear that she would have accepted the “Commissions Team Manager” position in Singapore. And from that inference, I infer that the position was not one which was nearest in status and pay to the position Ms Turnbull occupied immediately before she went on parental leave.
There is other evidence which supports this conclusion. First, the evidence suggests that the “Commissions Team Manager” position in Singapore was to pay an annual salary of around USD92,000. At the date of the termination of her employment, Ms Turnbull’s annual salary was AUD195,871. Although there is no direct evidence before the Court of the exchange rates between the Australian dollar and the American dollar in February 2012, I will take judicial notice of the fact that throughout 2012 the Australian dollar traded at or nearly at par with the American dollar.[64] That means that there was a significant difference between the salary Ms Turnbull had been paid in her pre-parental leave position and the salary that was to be paid for the “Commissions Team Manager” position in Singapore, even if the availability in Singapore of cheap domestic assistance is taken into account.
[64] Section 144 Evidence Act1995 (Cth)
Second, the tasks and status that were attached to the “Commissions Team Manager” position in Singapore appear to differ significantly from those that Ms Turnbull undertook in her pre-parental leave position. On the one hand, in her pre-parental leave position Ms Turnbull was responsible for completing all the planning, forecasting and actual reporting for the Asia Pacific Region of the Symantec group.[65] She managed a team of six people.[66] On the other hand, the “Commissions Team Manager” position involved different tasks which appear to have been more limited than the tasks Ms Turnbull carried out in her position.
[65] T14.10
[66] T14.35
At any rate, it is not for Symantec to prove that the “Commissions Team Manager” position in Singapore was not one for which Ms Turnbull was qualified and suited nearest in status and pay to the pre-parental leave position. The onus is on Ms Turnbull to prove that this position was one for which Ms Turnbull was qualified and suited nearest in status and pay to her pre-parental leave position. While it might be accepted that the “Commissions Team Manager” position in Singapore was one for which Ms Turnbull was qualified, the evidence does not satisfy me that it was a comparable position and thus one for which Ms Turnbull was suited and which was nearest in status and pay to her pre-parental leave position.
Conclusion on section 84 claim
For these reasons, I find that the “Commissions Team Manager” position in Singapore was an “available position” within the meaning of s.84 of the Act, but it was not one for which Ms Turnbull was suited and which was nearest in status and pay to her pre-parental leave position. Ms Turnbull’s claim based on s.84 of the Act, therefore, fails.
Compensation
Although I have concluded that Ms Turnbull’s claims based on s.351 and s.84 of the Act fail, I should consider the question of damages in the event there is an appeal. I will deal with this question, first, by identifying the power of the Court to order compensation, and, second, by considering the relevant principles that should guide the assessment of compensation.
Power to award compensation
The obligation to comply with s.84 of the Act is not imposed by s.84; it is imposed by s.44 of the Act. That section provides that an employer must not contravene a provision of the “National Employments Standards”. Under s.61 of the Act, s.84 is one of a number of “National Employment Standards”. Both s.44 and s.351 are “civil remedy provisions” within the meaning of s.539 of the Act. Under s.545(1) of the Act, this Court may make any order the Court considers appropriate if the Court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision. The orders the Court may make includes an order “awarding compensation for loss that a person has suffered because of the contravention” of a civil remedy provision.
Submissions as to applicable principles for assessing compensation under s.545(2)(b) of the Act
Counsel for Ms Turnbull referred me to the following passage from the reasons for judgment of Barker J in Australian Licensed Aircraft Engineers Association v International Aviations Service Assistance Pty Ltd:[67]
In accordance with usual principle, an order awarding compensation must be assessed on the basis that an applicant establishes loss that a person has suffered because of the contravention and that this requires an appropriate causal connection between the contravention and the loss claimed.
[67] (2011) 193 FCR 526 at [423]
Counsel for Ms Turnbull also referred me to an article he co-authored.[68] That article, in turn, refers to the decision of Lee J in Aitken v Construction, Mining, Energy, Timber Yards, Sawmills & Woodworkers Union of Australia[69] in which Lee J awarded compensation under s.170EE of the Industrial Relations Act 1988 (Cth). In Aitken, Lee J said:[70]
In assessing the compensation that is appropriate the Court will have regard to what is reasonable in the circumstances and will look at what would have been likely to occur had the Act not been contravened . . . The Court will consider the detriment occasioned to the employee by the employer's contravention of the Act, and the extent to which it is reasonable to compensate the employee for such consequences.
[68] I Latham and D Taylor “Assessing Compensation in Adverse Action Cases” (2012) 3 WR 61
[69] (1995) 63 IR 1
[70] At p 9. The passage was referred to with approval by the Full Court of the Federal Court in Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144 at 155
The loss for which compensation may be ordered under s.545(2)(b) of the Act includes economic loss. Counsel for Ms Turnbull submits that economic loss should be valued “at the value of loss of employment” which, counsel submits, is the “likely length of employment from time of dismissal multiplied by annual income minus a deduction for vicissitudes of life”.[71] Counsel referred to Walker v Citigroup Global Markets Australia Pty Limited[72] as a guide to the discount that should be given for the possibility of the lawful termination of an employment contract. Counsel for Ms Turnbull also submitted that compensation may be awarded for non-economic loss, and he referred me to Burazin v Blacktown City Guardian Pty Limited.[73]
[71] Outline of Submissions by the Applicant, [28]
[72] (2007) 233 ALR 687 at [83] and [84] (Gyles, Edmonds, and Greenwood JJ)
[73] (1996) 142 ALR 144 at 156
Counsel for Symantec also referred to a number of cases. She referred to Qantas Airways Ltd v Gama[74] for the proposition that the discretionary nature of the power to award compensation under s.545(2)(b) of the Act does not necessarily require an applicant to be fully compensated for all loses. Counsel for Symantec also referred to a number of cases to support the contention that amounts that are awarded for non-economic loss are usually nominal.
[74] (2008) 167 FCR 537 at [94]
Ascertaining and calculating economic loss – general approach
To determine whether an applicant has suffered economic loss because of a contravention of a civil remedy provision, the Court must compare two positions. Where it is not alleged that an applicant failed to mitigate his or her loss, one of those positions is actual, and the other is hypothetical. The actual position is the financial position in which the applicant finds himself or herself at the date compensation is fixed or at some earlier appropriate date. The second, and hypothetical, position is the financial position in which the applicant would have found himself or herself at the relevant time had the employer not contravened a civil remedy position. If, after these two positions are identified, the applicant’s actual financial position is less favourable than the hypothetical financial position, compensation will be fixed in an amount that reflects the difference between the two positions. That is, compensation will be fixed in such amount as will put the employee in, or substantially in, the position he or she would have been, had the employer not contravened a civil remedy provision.
There will usually be little or no difficulty in determining an applicant’s actual financial position. That will be a matter of history, most of the traces of which will be captured in documents. It is another matter to determine the hypothetical position. Here, judgments must be made, often on the basis of incomplete evidence. That will usually give rise to a range of plausible hypothetical financial positions against which to compare the applicant’s actual financial position and, hence, a range of amounts that it may be reasonable to assess as compensation. Nevertheless, an applicant bears the onus of adducing evidence from which the Court can rationally infer a relevant hypothetical position.
Ms Turnbull’s claim for economic loss: salary and bonus
Ms Turnbull claims she suffered three heads of economic loss. The first is what Ms Turnbull describes as “the value of the loss of employment being estimated here as 8 months’ salary being the figure of $150,000”.[75] The second is the loss of her bonus of $29,381, being 15% of her annual salary. The third is the loss of value of her “unvested shares”. I will deal with the third head later in these reasons.
[75] Outline of Submissions by the Applicant, [33(i)]
The first and second heads of economic loss have been calculated on the assumption that Ms Turnbull would have remained employed by Symantec for eight months after the day on which her employment ended with Symantec, and that, for that period, she would have continued to receive the salary she received immediately before she took parental leave, including a bonus.
There are two things to note about this part of Ms Turnbull’s claim. The first is that it does not take into account the actual financial position in which Ms Turnbull found herself during the eight-month period Ms Turnbull assumes she would have remained with Symantec had her employment not been terminated. In particular, the claim ignores that during that eight-month period Ms Turnbull received a number of payments.
a)First, on 7 March 2012, Symantec paid to Ms Turnbull $84,382.08, out of which it deducted $15,553.55.[76] The $84,382.08 includes severance pay of $60,268, and payment of $18,833.76 in lieu of notice.[77]
b)On 30 April 2012 Ms Turnbull commenced employment with another company for a total annual salary of $163,500, including superannuation.[78] For the period ended 31 December 2012 Ms Turnbull earned a gross salary of $73,742.[79] Given that Ms Turnbull’s employment was terminated on 2 March 2012,[80] the eight months Ms Turnbull assumes she would have been employed by Symantec would have ended on 2 November 2012. That means that during six months (May – October 2012) of the eight months Ms Turnbull assumes she would have been employed by Symantec, Ms Turnbull earned a gross salary of $74,202.[81]
[76] Exhibit F Vol 2 p 576-77
[77] Exhibit D
[78] Exhibit F, Vol 2 p 498-503
[79] Exhibit F, Vol 2 p 539
[80] Exhibit D
[81] The payment advice at Exhibit F, Vol 2 p 539 shows a gross monthly salary of $12,367.32.
There is no doubt, in my mind, that the payments Ms Turnbull received from Symantec and her new employer, which total $158,584, must be taken into account when assessing Ms Turnbull’s claims of compensation for loss of salary and bonus. If these payments are taken into account, the difference between what Ms Turnbull claims she would have received ($179,381) from Symantec for the eight months she assumes she would have remained with Symantec, and what she in fact received ($158,584) is $20,797. And this may overstate the loss because these are gross amounts, and there may be more favourable tax treatment of redundancy payments.
The second thing to note about this part of Ms Turnbull’s claim for compensation for economic loss is that Ms Turnbull does not articulate the grounds on which she claims that, but for Symantec’s claimed contraventions of the Act, she would have continued to be employed by Symantec for a further eight months and would have been paid the salary of $150,000 together with a bonus of $29,381. To determine the most likely position Ms Turnbull would have found herself in but for the claimed contraventions, it is necessary to consider carefully the contravening conduct Ms Turnbull alleges Symantec engaged in. I will first consider the claimed contravention of s.351 of the Act.
Here, the contravening conduct is not alleged to be Symantec’s rendering Ms Turnbull’s position redundant. As I understand Ms Turnbull’s claim, she accepts that her position did become redundant. The section 84 claim is premised on Ms Turnbull’s pre-parental leave position having become redundant. Her complaint is that, given Symantec had decided to reduce costs, Symantec breached s.351 of the Act because it chose to terminate Ms Turnbull’s employment rather than the employment of other employees, and it did so for reasons that included as a reason an advantage that flowed from Ms Turnbull’s having taken parental leave. In these circumstances, the relevant hypothetical position which must be ascertained is that in which Ms Turnbull would have found herself had Symantec not acted for that reason. That requires an assessment of the decision Mr Ong would have made had he not relied on the prohibited reason. That, in turn, requires an assessment of whether there were positions within Symantec or the Symantec group which were available to Ms Turnbull other than her position which had been made redundant. Ms Turnbull claims that the only available position was the “Commissions Team Manager” position in Singapore. If that is so, then whether or not Ms Turnbull suffered loss must be assessed by reference to whether she would have been offered the “Commissions Team Manager” position in Singapore and if so, whether she would have accepted it and, if so, what salary she would have been paid.
These questions are to be answered by answering the question whether Ms Turnbull can establish she suffered loss as a result of Symantec having contravened s.84 of the Act. And there are two difficulties in the way of concluding Ms Turnbull suffered any loss. First, as I note earlier in these reasons, the highest Ms Turnbull’s evidence went was that she would have considered accepting the “Commissions Team Manager” position in Singapore had it been offered to her. In my opinion, that affords no grounds for rationally inferring that there was a material prospect of her accepting the position. Secondly, as I also note earlier in the reasons, the evidence suggests that the annual salary that was to be paid for the “Commissions Team Manager” position in Singapore was around USD92,000. Thus, even if I were satisfied that Ms Turnbull would have accepted that position, she would have been in a financial position that is significantly inferior to the financial position in which she found herself after she ceased her employment with Symantec.
For these reasons, even if I were to conclude Symantec had contravened s.351 or s.84 of the Act, Ms Turnbull would not have satisfied me that she suffered any economic loss in the form of lost salary or lost bonus.
Economic loss - options
Ms Turnbull also claims she is entitled to the value of her “unvested shares”, which she claims is $41,936.
“Unvested shares” is a reference to options to purchase shares in Symantec Corporation that Ms Turnbull held under the “Stock Plan” referred to in a letter from Symantec to Ms Turnbull dated 8 February 2006.[82] The terms of the Stock Plan are set out in a document that accompanied that letter.[83] Under the Stock Plan, options were granted to those who participated in the Stock Plan. The options, however, can be exercised only after they “vest”. This part of Ms Turnbull’s claim for damages for economic loss relates to options Ms Turnbull holds which had not vested as at the date Ms Turnbull’s employment ended with Symantec.
[82] Exhibit F, p 244
[83] Exhibit F, p 246
The options Ms Turnbull claims had not been vested are set out in a document issued by Symantec Corporation titled “Options and Awards Summary”.[84] The options are identified under columns headed “Vest Date”, and are differentiated according to the date they were granted to Ms Turnbull. The document identifies 2,080 options that were due to vest after the date on which Ms Turnbull’s employment had been terminated, and the dates on which the options were to vest. The earliest vesting date was 1 June 2012.
[84] Exhibit F, p 136
Counsel for Symantec submitted that the options should not be taken into account when assessing Ms Turnbull’s damages because the evidence showed that Ms Turnbull would not have been employed by Symantec on 1 June 2012, when one lot of options was due to vest, and certainly would not have been employed by Symantec in 2013 and 2014 when the other lots of options were due to vest. The connection between Ms Turnbull’s continuing employment with Symantec and the vesting of the options she held arises from clause 5.6 of the Stock Plan. That clause provides that if the participant is “Terminated for any reason except death or Disability”, the participant “may exercise such Participant’s Options only to the extent that such Options are vested”. Symantec’s letter dated 8 February 2006 to Ms Turnbull specifically highlighted this feature of the Stock Plan:[85]
If options are granted to you, the benefits under the Stock Plan will be available to you only during the course of your employment with Symantec or any of its subsidiaries, and the vesting of any option will cease upon termination of such employment for any reason, in accordance with the terms and conditions of the Stock Plan.
[85] Exhibit F, p 244
For the reasons set out above, the evidence does not support a finding that, as at 1 June 2012 and after, Ms Turnbull would have been an employee of Symantec or of any other company within the Symantec group. That means that the unvested options Ms Turnbull held at the date her employment ended will never become vested. That, in turn, means that no value can be attached to her unvested options and hence they cannot constitute any loss that could be said to flow from Symantec’s claimed contraventions of s.84 or s.351 of the Act.
General damages
Ms Turnbull claims $20,000 damages for “hurt distress and humiliation”. In my opinion, there is no foundation in the evidence that would justify the granting of any general damages, let alone the $20,000 claimed by Ms Turnbull.
Claims based on s.536 of the Act
Ms Turnbull claims Symantec contravened s.536 of the Act which provides that an “employer must give a pay slip to each of its employees within one working day of paying an amount to the employee in relation to the performance of work”. Ms Turnbull alleges that the payment she received on 7 March 2012 related to her performance of work, but Symantec did not provide to Ms Turnbull any payment slip for that payment. Symantec does not dispute it failed to comply with s.536 of the Act.
I do not understand Ms Turnbull to have submitted that she suffered any loss because of Symantec’s failure to provide her with a payment slip.
Conclusions and further progress
I have concluded that Symantec did not contravene s.351 or s.84 of the Act. I therefore propose to dismiss the application in so far as it claims relief based on alleged contraventions of those provisions. I will not, however, dismiss the application without first affording Ms Turnbull an opportunity to make submissions about whether she seeks relief on account of Symantec’s contravention of s.536 of the Act.
Accordingly, I propose to direct the parties file and serve written submission on the question of relief for Symantec’s contravention of s.536 of the Act and on the question of costs.
I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 1 November 2013
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