FEDERAL COURT OF AUSTRALIA

Adcock v Blackmores Ltd [2016] FCA 893

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the Respondents.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    From September 2003 until September 2014 the Appellant (Mr David Adcock) was employed by the Respondent, Blackmores Limited (“Blackmores”). The initial contractual terms of his employment were set forth in a contract of employment dated 22 September 2003. As at that date his position was described as Trade Marketing Manager. Thereafter he occupied a number of positions including General Manager, Thailand. As from October 2010 he occupied the position of Commercial Manager Asia. The terms of these subsequent positions were set out in a contract forwarded to Mr Adcock on 1 February 2010.

2    In July 2014 Mr Adcock was informed that the position of Commercial Manager Asia “no longer existed”. He was invited to apply for the new role of Financial Controller, reporting to the Chief Financial Officer Asia. He was not interested in that position. Thereafter he was offered a number of other roles within Blackmores. He accepted none of them. On 9 September 2014 his employment came to an end.

3    In November 2014 Mr Adcock filed in the Fair Work Division of the Federal Circuit Court of Australia an Application. An Amended Application was filed in July 2015. He claimed that Blackmores had breached the Blackmores Enterprise Agreement 2013: Working Together (the “Blackmores Enterprise Agreement”). He sought (inter alia) declaratory relief and an order for the payment of 32 weeks’ redundancy pay ($114,169.62); 5 weeks’ pay in lieu of notice ($17,839); and amounts owed for superannuation ($12,540.82). He also claimed that Blackmores had intentionally or recklessly misrepresented to him his workplace rights in contravention of s 345 of the Fair Work Act 2009 (Cth) (the “Fair Work Act”). An order for the payment of penalties to him was also sought pursuant to s 539 of the Fair Work Act.

4    In very summary form, Mr Adcock claims that it was Blackmores who terminated his employment on 9 September 2014; Blackmores contends that it did not terminate Mr Adcock’s contract of employment but that it was Mr Adcock who terminated the employment relationship. Mr Adcock asserts that he was entitled to accept or reject each of the alternative employment positions that had been previously offered after the abolition of the position of Commercial Manager Asia.

5    The Federal Circuit Court dismissed Mr Adcock’s claims in a decision published on 12 February 2016: Adcock v Blackmores Limited & Ors [2016] FCCA 265. On 14 April 2016 that Court published its reasons for ordering Mr Adcock to pay costs incurred on and after 4 July 2015: Adcock v Blackmores Limited & Ors (No 2) [2016] FCCA 980.

6    Mr Adcock now appeals to this Court. His Amended Notice of Appeal raises 6 Grounds of Appeal. A question arises whether some of the Grounds sought to be pursued raise different issues to those advanced for resolution before the Federal Circuit Court or go beyond the leave that was granted to amend the Notice of Appeal.

7    It is concluded that the appeal should be dismissed.

8    The resolution of the issues pursued on appeal directed attention to both the terms of the contract of employment forwarded to Mr Adcock in February 2010 and the terms of the Blackmores Enterprise Agreement.

The February 2010 contract of employment

9    Two provisions of the February 2010 contract assumed central relevance, namely cll 2 and 16.

10    Clause 2 provides as follows:

2.    Position and duties

(a)    You are employed on a full time basis as the General Manager, Thailand. You will report to the Director of Asia, Peter Osborne. The duties and responsibilities of your position are set out in the attached Position Description.

(b)    You may also be asked and agree to perform other tasks or duties that are within your qualifications, training, skills or capacity.

(c)    Your position and responsibilities may change during your employment. If this occurs, the other conditions set out in this document will continue to apply to your employment, unless they are varied in writing.

(d)    You are on assignment from Blackmores Australia, working on secondment to Blackmores Thailand. Your work is exclusively for Blackmores Thailand during your period of secondment.

11    Clause 16 provides as follows:

16.    Changes contemplated to these conditions

From time to time as business needs change, Blackmores may make minor changes to your role or working conditions without prior consultation with you. An example of such a change would be changing the person or position that you report to. More fundamental changes to your role will only be made after discussion and mutual agreement. An example of such a change may be a promotion to a position of higher responsibility.

12    Reference should also be made to cl 6 which provides in part as follows:

6.    Remuneration and authorised deductions

(a)    You are employed on a total employment cost basis. Your salary package is set out below. You are eligible to participate in Blackmores’ profit share arrangements as set out in the Blackmores’ Collective Agreement 2006. You are also eligible to participate in Blackmores’ bonus scheme.

...

The Blackmores Enterprise Agreement

13    Two provisions of the Blackmores Enterprise Agreement assumed relevance, namely cll 36 and 38.

14    Clause 36 of the Blackmores Enterprise Agreement addresses the termination of employment in relevant part as follows:

TERMINATION OF EMPLOYMENT

36.1    If Blackmores terminates an employee’s employment the employee is entitled to a 4 weeks’ notice period, except for the Executive Team who are entitled to 3 months’ notice.

36.2    The period of notice will be increased by 1 week if the employee is over 45 years old.

36.3    As an alternative to giving the period of notice Blackmores may terminate the employment of an employee by giving the employee a payment wholly or partly in lieu of the period of notice.

Clause 38 of Blackmores Enterprise Agreement addresses redundancy and in relevant part provides as follows:

REDUNDANCY

38.1    This clause applies only in the circumstances where Blackmores terminates an employee’s employment due to redundancy. A redundancy takes place when:

(a)    Blackmores has made a definite decision that it no longer wishes the job the employee has been doing to be done by anyone; and

(b)    the decision is not due to the ordinary and customary turnover of labour; and

(c)    that termination of employment is not for reasons of any personal act or default on the part of the employee.

38.2    This clause does not apply:

…

(e)    where Blackmores obtains, and the employee accepts, alternative employment for the employee;

…

38.3    Where Blackmores has made a definite decision that it no longer wishes the job the employee has been doing to be done by anyone, and that decision may lead to the termination of employment, Blackmores will discuss this with the employee as soon as practicable after the making of the definite decision.

(a)    The discussion will cover:

(i)    the reason(s) for the proposed termination;

(ii)    the period over which the termination is likely to be carried out;

(iii)    measures to avoid or minimise the termination; and

(iv)    measures to mitigate any adverse effects on the termination of the employee.

(b)    During discussion with the employee, Blackmores is not required to disclose confidential information if the disclosure would adversely affect Blackmores.

38.4    Employees are entitled to redundancy payments in accordance with the provisions of the Fair Work Act. However where an entitlement to redundancy arises under the Fair Work Act the severance payment applicable in the Fair Work Act is substituted with more generous payments outlined below:

The abolition of the position & alternative positions offered

15    Mr Adcock was first informed that the position of Commercial Manager Asia “no longer existed” at a meeting he attended in Malaysia on 4 July 2014. He was then invited to apply for the new role of Financial Controller, reporting to the Chief Financial Officer Asia. Mr Adcock rejected the offer.

16    On 9 July 2014 Mr Adcock sent an e-mail stating that his preference was a role based in Sydney, acting as a conduit between Blackmores’ Asia Hub and the Sydney head office. But he was told that that was not an option. He returned to the Sydney offices of Blackmores on 21 July 2014.

17    Various other roles and positions were explored throughout August 2014. Mr Adcock went on a short period of leave from 14 August 2014. Before going on leave he obtained legal advice on his entitlements, including redundancy entitlements.

18    On his return he met with Mr Henfrey, Blackmores’ Chief Operating Officer. Mr Adcock deposed that at the meeting on 25 August 2014, the following exchange occurred:

MR ADCOCK: … if an appropriate role cannot be found, then I would like to discuss the prospect of redundancy. As my role no longer exists, I believe that is grounds for redundancy. My understanding is that our Enterprise Agreement accommodates such a situation. Could you please show me the payment calculations relating to the redundancy of my role?

MR HENFREY: I don’t think that is correct. Although that role no longer exists, I believe that if you are offered an alternate role with similar conditions then redundancy would not kick in … I’ll confirm that with Linda and Chris.

The reference to “Linda” was a reference to Ms Linda Redfearn, the Head of Human Resources at Blackmores; the reference to “Chris” was a reference to Mr Chris Last, Blackmores’ Chief Financial Officer.

19    On 29 August 2014 Mr Adcock was asked to consider a new position as Business Implementation/Transition Manager – Asia. But Mr Adcock again advised that he was not interested. On 1 September 2014 he again expressed his belief that he was entitled to a redundancy payment. A further meeting was held on 4 September 2014 when Mr Adcock was handed a letter setting forth the attempts to find him an alternative position. Mr Adcock thought that the letter was an ultimatum.

20    On 9 September 2014 a further meeting was held at which Mr Adcock was advised of a new role assisting the “CFO Asia”. Later that afternoon he met with Mr Last, Blackmores’ Chief Financial Officer, and told him that Blackmores had refused to pay him “my notice and redundancy pay” and “have therefore repudiated my contract of employment”. Mr Adcock handed Mr Last a letter which stated in part as follows:

I have considered a number of available positions at Blackmores for potential redeployment. Unfortunately, despite carefully considering all of the options, there are no suitable alternative positions for me.

The Blackmores Enterprise Agreement 2013: Working Together sets out that if I do not accept alternative employment offered to me that I am entitled to redundancy pay (clause 38.2(e)).

I sought to discuss the redundancy of my position and the resulting redundancy pay with you late last week. However, Blackmores has refused to recognise that my position has been made redundant or that I am entitled to redundancy pay in accordance with the Enterprise Agreement. Blackmores has instead argued that the Enterprise Agreement does not apply because they do not want to make me redundant, despite my position no longer existing.

I have been quite dismayed by the approach taken by Blackmores … in refusing to recognise my entitlement to redundancy pay. I genuinely do not understand why you are asserting that my position is not redundant.

Blackmores has by its actions, outlined above, repudiated my contract of employment. Accordingly I will no longer be attending the office for work as I have been terminated by Blackmores. I expect to receive full payment of my statutory and Enterprise Agreement entitlements within 7 days of receipt of this letter including 35 weeks redundancy pay, 5 weeks payment in lieu of notice, accrued long service leave and annual leave.

Mr Last left the room and returned with Blackmores’ Company Secretary, Ms Cooper, and the following exchange occurred:

MS COOPER: I hope you have thought carefully about this. You are resigning.

MR ADCOCK: No I am not resigning. Blackmores have repudiated my contract.

MS COOPER: We are slotting you straight back into your old role. You are abandoning your role despite getting the same role back.

MR ADCOCK: I disagree with you completely. It is not the same role and I have been told repeatedly that my old role no longer exists. Shall I return my property now?

MS COOPER: No keep the property. You’ve got a role here so you should keep it. If you leave your tools of trade you cannot do your role and you are resigning.

MR ADCOCK: I am not resigning. As I have stated previously, Blackmores have repudiated my contract …

Mr Adcock left and did not return.

21    At the hearing before the Federal Circuit Court, Mr Adcock accepted that Blackmores had offered him a number of alternative positions which he had declined but conceded that the offers were “genuine offers of jobs which he could have performed” ([2016] FCCA 265 at [68]).

The Grounds of Appeal – the contract of employment v clause 38

22    It is against this background of facts that the arguments sought to be pursued in the Amended Notice of Appeal are to be resolved.

23    Before this Court it was contended on behalf of Mr Adcock (inter alia) that:

    the abolition of the position of Commercial Manager Asia was a repudiation by Blackmores of the contract of employment which thereafter left Mr Adcock free to make an election to either accept or reject the act of repudiation – and Mr Adcock, on the case he advanced on appeal, accepted the act of repudiation on 9 September 2014.

In reliance upon the terms of the Blackmores Enterprise Agreement, it was further contended on Mr Adcock’s behalf that:

    the act of abolishing the position of Commercial Manager Asia was an act which itself “terminated [Mr Adcock’s] employment” for the purposes of clause 38(1) of the Blackmores Enterprise Agreement or was an act which “required” Blackmores to immediately terminate his employment; and

    the act of abolishing the position of Commercial Manager Asia was a breach of cl 38(3) of the Blackmores Enterprise Agreement because cl 38(3) on its proper construction required that there be “discussion” with Mr Adcock before a “definite decision” was made that Blackmores “no longer wish[ed] the job [Mr Adcock] had been doing to be done by anyone…”.

On behalf of Mr Adcock it was further contended that:

    there had been a series of misrepresentations made which attracted ss 341 and 345 of the Fair Work Act; and

    it was an erroneous exercise of discretion on the part of the Federal Circuit Court Judge to award costs against Mr Adcock. An earlier challenge to the power of the Court to make an order for costs was abandoned.

24    Central to the case being advanced on behalf of Mr Adcock were the consequences flowing from the decision made by Blackmores to abolish the position of Commercial Manager Asia. If attention was focussed upon the consequences of that decision to the claim sought to be advanced in respect of breach of contract, the abolition of the position did not itself terminate the contract – the act of abolishing the position was an act of repudiation which gave rise to an election on the part of Mr Adcock to accept or reject the repudiation. If attention was focussed on the consequences of that decision to the claims founded upon cl 38 of the Blackmores Enterprise Agreement, the act of abolition was said of itself to be an act which “terminated” Mr Adcock’s “employment due to redundancy” or which gave rise to a duty or obligation to immediately terminate his employment. There is a tension – but no necessary inconsistency – between those two consequences.

25    It was common ground between the parties that the wrongful repudiation of a contract of employment, just as much as a wrongful dismissal of an employee, did not itself bring the contract to an end. The contract of employment may continue until the employee accepts the repudiation or dismissal: Visscher v Giudice [2009] HCA 34, (2009) 239 CLR 361. Heydon, Crennan, Kiefel and Bell JJ there summarised the position as follows:

[53]    ... It does not follow from the fact that a wrongful dismissal is effective to bring the employment relationship to an end that it thereby discharges the contract of employment. In Byrne v Australian Airlines Ltd it was said that:

“It does not appear to have been doubted in this country that a wrongful dismissal terminates the employment relationship notwithstanding that the contract of employment may continue until the employee accepts the repudiation constituted by the wrongful dismissal and puts an end to the contract. That was accepted by both the majority and minority in Automatic Fire Sprinklers Pty Ltd v Watson …”

And in one of the passages from Automatic Fire Sprinklers Pty Ltd v Watson to which reference was made in Byrne v Australian Airlines Ltd, Latham CJ said:

“An employer terminates the employment of a servant when he dismisses him, though, as I say hereafter, such a dismissal does not put an end to the contract between the parties. An argument that a dismissal because wrongful was a nullity was raised and rejected in both Williamson’s Case and Lucy’s Case.”

And Dixon J said:

“… there is nothing in the general law preventing the wrongful dismissal of a servant operating to discharge him from service, notwithstanding that he declines to accept the dismissal as absolving him from further performance but keeps the contract open and remains ready and willing to serve.”

As was said in Byrne, the position was not always so clear in England. For a time the opinion was maintained that contracts of employment are sui generis, in that certain forms of repudiation are effective automatically to terminate them without the need for their acceptance. But, as has been observed, the theory was later rejected in favour of the “elective theory of termination”. Such an approach accepts as correct the general principle in contract law that acceptance by the innocent party of a repudiation is necessary to terminate a contract.

[54]    This is not to say that in a case of dismissal there will ordinarily be anything to be gained by employees refusing to accept the repudiation. Even if they keep the contract of employment on foot, they cannot receive remuneration after the dismissal, because the right to receive it is dependent upon services having been performed. Further, historically the courts would not grant specific performance of a contract of personal service, save in exceptional cases. This was largely because of perceived difficulties in supervision and because the courts were unwilling to compel employers to tolerate an individual employee whom they considered incompatible …

It was there concluded that the employer’s notice of rescission did not automatically bring the contract appointing Mr Visscher to an end; it was necessary that Mr Visscher accept the repudiation before the contract could be terminated. It is, accordingly, necessary “to keep in mind the distinction between termination of an employment relationship, on the one hand, and termination of the employment contract, on the other”: Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20 at [187], (2015) 317 ALR 665 at 700 to 701 per White J. See also: Tullett Prebon (Aust) Pty Ltd v Purcell [2009] NSWSC 1079 at [38] to [50] per Ward J.

26    What was not common ground was whether the conduct of Mr Adcock was itself an act terminating the contract of employment which was accepted by Blackmores or whether the prior abolition of the position of Commercial Manager Asia was an act of breach by Blackmores which Mr Adcock accepted on 9 September 2014 as bringing the contract to an end.

27    Each of these issues should be resolved, albeit not in the sequential order in which each is raised in the Amended Notice of Appeal.

Repudiatory conduct on the part of Blackmores

28    The arguments founded upon an entitlement to relief for alleged breach of contract are expressed in Grounds 3 and 4 of the Amended Notice of Appeal. Those Grounds contend, in summary form, that the Federal Circuit Court Judge:

    erred in not concluding that the conduct of Blackmores amounted to a repudiation of the contract of employment; and

    erred in not finding that on 9 September 2014 Mr Adcock had elected to accept that repudiation and terminate his contract of employment.

These Grounds need to be approached with a degree of care for at least two reasons. They seek to advance an argument exclusively founded not upon the terms of the Blackmores Enterprise Agreement, but upon an alleged breach of the contract of employment, namely the contract forwarded to Mr Adcock in February 2010.

29    First, in neither the Application nor the Amended Application did Mr Adcock claim damages for breach of his contract of employment. The Amended Application referred to Mr Adcock’s contract of employment. But only two “express terms” of the contract are thereafter referred to, namely: an express term that Mr Adcock “would be paid notice upon termination and redundancy pay in accordance with the Enterprise Agreement”; and the “express terms of the Contract [being those] set out in the Blackmores Collective Agreement 2003. This was replaced by the Blackmores Collective Agreement 2006 …”. This last reference was presumably a reference to cl 6 of the contract of employment.

30    The case as sought to be advanced on appeal as to breach of the contract of employment was that Blackmores had breached the contract by abolishing the position of Commercial Manager Asia without the consent of Mr Adcock. The argument was that cl 2 of the contract, when read together with cl 16, precluded Blackmores from making anything other than “minor changes” to the contract without the agreement of Mr Adcock. Clause 16, it was emphasised, provided that “[m]ore fundamental changes to [Mr Adcock’s] role will only be made after discussion and mutual agreement”. On the facts, it was said, there had been no discussion and no agreement. And cl 2(b), in particular, precluded Blackmores from requiring Mr Adcock to “perform other tasks or duties” in the absence of agreement.

31    Second, to the extent that the Amended Application filed in the Federal Circuit Court can be construed as a claim for damages for repudiation of the contract of employment, the repudiation which was relied upon in that Amended Application was founded upon a “refus[al] to pay [Mr Adcock] the redundancy benefit due to him under the Contract”. But that is not the repudiation now relied upon, namely repudiation by reason of the abolition of the position of Commercial Manager Asia. Such a construction of the Amended Application is only reinforced by reference to the manner in which the case as to repudiation was summarised in Mr Adcock’s outline of closing submissions in the Federal Circuit Court, namely:

Repudiation

1.    The first respondent repudiated the contract of employment with the applicant by failing to pay him his notice and redundancy pay in accordance with the terms of his Contract of Employment dated 1 February 2010 …

…

6.    The very fact the position of Commercial Manager, Asia was abolished meant that clause 38 of the Enterprise Agreement was triggered by virtue of the reference to the redundancy provision of the Agreement in the Contract …

…

15.    The applicant repeatedly sought to have the repudiation remedied. Ultimately, when the respondent continued to breach these fundamental terms of the Contract, by not agreeing to pay the notice and redundancy pay, Mr Adcock accepted repudiation of the Contract on 9 September 2014, via his letter to Mr Chris Last of the respondent on that date.

…

It is also consistent with the terms of the letter dated 9 September 2014 which Mr Adcock handed to Mr Last during the meeting held on that date.

32    Notwithstanding the ingenuity with which Senior Counsel for Mr Adcock now seeks to characterise the present argument as to repudiation arising from the abolition of the position of Commercial Manager Asia, the simple fact is that:

    no relief was previously sought for damages for breach of contract; and

    the repudiation previously relied upon is substantively different to the repudiation now sought to be relied upon.

Even if the terms in which the Amended Application were expressed are left to one side, if reference is made to the written outline of the closing submissions previously relied upon by Mr Adcock, it emerges that:

    those submissions were again directed to repudiation “by failing to pay him his notice and redundancy pay in accordance with the terms of his Contract of Employment dated 1 February 2010 (the Contract)”; and that

    the claim for relief being advanced was that the “very fact the position of Commercial Manager, Asia was abolished meant that clause 38 of the Enterprise Agreement was triggered by virtue of the reference to the redundancy provision of the Agreement in the Contract”.

No submission was advanced on behalf of Mr Adcock that the conduct of Blackmores constituted a repudiation of the contract of employment such that it remained open for Mr Adcock to make an election whether to accept or reject that repudiation. Even though a party may be entitled to rely on matters “which travel beyond the pleadings” where (for example) a case has been conducted on a basis other than that pleaded (Water Board v Moustakas (1988) 180 CLR 491 at 497 per Mason CJ, Wilson, Brennan and Dawson JJ; JR Consulting & Drafting Pty Limited v Cummings [2016] FCAFC 20 at [78], (2016) 329 ALR 625 at 643 per Bennett, Greenwood and Besanko JJ), it is not considered that the argument as now sought to be advanced was the basis, or formed any part of the basis upon which the case was conducted before the Federal Circuit Court.

33    If reliance is to be now placed upon a repudiation of the contract of employment founded upon the abolition of the position of Commercial Manager Asia, leave to do so is required.

34    Leave may be granted to raise on appeal an argument that has not previously been raised for consideration. But leave to do so is required. Ordinarily a party is bound by the manner in which a case has been advanced at first instance: Metwally v University of Wollongong (1985) 59 ALJR 481 at 483. Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ there observed:

It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.

Similarly, in Park v Brothers [2005] HCA 73, (2005) 80 ALJR 317 at 324 Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ observed:

[34]    ... In adversarial litigation, as a general rule, a party is bound by the conduct of his case. There are circumstances in which the interests of justice may lead an appellate court to permit a party to raise a point that was not taken at trial, but where the point is one that could have been met by calling evidence below then it cannot be raised for the first time on appeal.

35    In the circumstances of the present case, it is respectfully concluded that leave to raise the arguments embraced by Grounds 3 and 4 of the Amended Notice of Appeal should be refused because:

    there is no satisfactory explanation why the argument now sought to be relied upon was not raised at first instance – Mr Adcock, it may be noted, was represented in the Federal Circuit Court by Counsel and solicitors; and

    there is a very real prospect that had the present argument been previously relied upon the hearing would have been conducted differently, with Blackmores potentially relying on a possible waiver on the part of Mr Adcock of any entitlement to accept the repudiation of the contract, and with a distinct possibility that further evidence may have been called. Affidavits had been filed but not read, being affidavits of Mr Last and Ms Redfearn. The prospect of either of those witnesses adducing evidence as to the present argument – had it been relied upon – could not be discounted. The “possibility” of there being further evidence which could have been led cannot be discounted: Coulton v Holcombe (1986) 162 CLR 1 at 7 per Gibbs CJ, Wilson, Brennan and Dawson JJ. There was also the prospect that Blackmores may have wished to contend that a new contract of employment arose after Mr Adcock returned to Australia in July 2014 and continued in employment at Blackmores until September 2014.

36    Leave to raise Grounds 3 and 4 of the Amended Notice of Appeal is refused.

Redundancy amounts to termination – clause 38

37    Separate from an entitlement to relief founded upon a breach of contract by the abolition of the position of Commercial Manager Asia, Senior Counsel on behalf of Mr Adcock nevertheless claimed an entitlement to relief founded upon a breach of the Blackmores Enterprise Agreement.

38    Grounds 1 and 2 of the Amended Notice of Appeal contend, in summary form, that the Federal Circuit Court Judge:

    erred in concluding that “Mr Adcock had failed to prove that the redundancy of a position, without more, amounts to termination of employment” and that there had been a termination of Mr Adcock’s employment or that cl 38 of the Blackmores Enterprise Agreement “required” an immediate termination of the employment; and

    “erred in not directing himself that Blackmores had contravened cl 38 of the Agreement…”.

These Grounds are rejected for a number of reasons.

39    First, no argument should be accepted that the decision of Blackmores to abolish the position of Commercial Manager Asia also itself terminated Mr Adcock’s employment for the purposes of cl 38 of the Blackmores Enterprise Agreement.

40    The operation of cl 38 clearly separates out:

•    the making of a “definite decision that [Blackmores] no longer wishes the job the employee has been doing to be done by anyone”

and:

    the making of a decision to “terminate an employee’s employment due to redundancy”.

Clause 38.3 in particular expressly makes self-evident the fact that the making of a “definite decision” does not necessarily lead to termination of employment – cl 38.3 expressly provides that “that decision”, namely the definite decision that the job is not to be done by anyone, “may lead to the termination of employment”. A decision to abolish a position is thus separate and distinct from a decision to terminate employment.

41    Clause 38.1(a), moreover, makes self-evident the fact that the making of a “definite decision” is but the first of three requirements to be satisfied before a “redundancy takes place” – the remaining two requirements being those in cl 38(1)(b) and (c).

42    It was presumably in recognition of the hurdle that the express words of cl 38 placed in Mr Adcock’s path that he further submitted:

    once a “definite decision” had been taken, Blackmores was thereafter obliged or required to terminate his employment; and/or

    no “definite decision” could be taken without first holding discussions with Mr Adcock as he said cl 38 required.

However that further submission is advanced, it is rejected. Certainly the express terms of cl 38 do not dictate the acceptance of either submission. Indeed, the natural and ordinary meaning of the terms employed would support a construction of cl 38 which permits a “definite decision” to be taken that a job is no longer to be performed by anyone and the making of that “definite decision” either before or after discussions are held with the employee affected.

43    Second, even if a contrary conclusion were to be reached, the consequence would not be an entitlement to redundancy payments but instead an entitlement to seek the imposition of a penalty for a contravention of the Blackmores Enterprise Agreement.

44    Clause 38.4 does not advance the case sought to be made out by Mr Adcock. Clause 38.4 refers to an “entitlement to redundancy [which] arises under the Fair Work Act…”. Section 119(1) of that Act provides as follows:

Entitlement to redundancy pay

(1)    An employee is entitled to be paid redundancy pay by the employer if the employee’s employment is terminated:

(a)    at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or

(b)    because of the insolvency or bankruptcy of the employer.

Section 119(2) sets forth a table quantifying the “amount of redundancy pay” by reference to an employee’s period of continuous service.

45    But s 119(1)(a) confines the entitlement of an employee to be paid redundancy pay to those circumstances in which the employment has been terminated “at the employer’s initiative…”. That requirement may be satisfied even in those circumstances where it is the employee who actually hands to his employer a letter of resignation. The statutory requirement, even in such circumstances, may be satisfied where it is the act of the employer which results directly or indirectly in the termination of the employment relationship: Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 at 205 to 206. On the facts of that case it was the employee who had signed a letter of resignation. The question was whether the termination was nevertheless at the initiative of the employer. Lee, Moore and Marshall JJ sitting as the Industrial Relations Court of Australia there observed:

In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship. This issue was addressed by Wilcox CJ in APESMA v David Graphics Pty Ltd (unreported, Industrial Relations Court of Australia, 12 July 1995, Wilcox CJ). His Honour, at p 3, referred to the situation of an employee who resigned because ‘‘he felt he had no other option’’. His Honour described those circumstances as:

“… a termination of employment at the instance [of] the employer rather than of the employee.’’

And at p 5:

“I agree with the proposition that termination may involve more than one action. But I think it is necessary to ask oneself what was the critical action, or what were the critical actions, that constituted a termination of the employment.’’

See also: Qantas Airways Limited v Christie [1998] HCA 18 at [64], (1998) 193 CLR 280 at 301 to 302 per McHugh J; Fishlock v The Campaign Palace Pty Ltd [2013] NSWSC 531 at [320], (2013) 234 IR 1 at 57 per Sackar J.

46    Section 119 of the Fair Work Act advances Mr Adcock’s claims no further because on the facts as found the employment of Mr Adcock was not terminated “at the initiative of” Blackmores; rather the contrary was the case. Blackmores wanted to retain Mr Adcock as an employee. It was Mr Adcock who terminated the employment relationship.

47    Grounds 1 and 2 of the Amended Notice of Appeal are rejected. The Federal Circuit Court Judge committed no appellable error in rejecting like arguments.

The misrepresentations

48    Ground 5 of the Amended Notice of Appeal seeks to focus attention upon the alleged misrepresentations that had been made by officers of Blackmores to Mr Adcock.

49    Before the Federal Circuit Court Judge Mr Adcock in his Application and in his Amended Application claimed that he “had a workplace right to receive notice and redundancy pay under a workplace instrument, the Enterprise Agreement”. It was there further alleged that Blackmores “through its representatives the Second to Fourth Respondents, knowingly or recklessly made a false or misleading representation to the Applicant concerning his workplace rights. These representations were that the Applicant was not entitled to notice or redundancy pay under the Enterprise Agreement”. The Second to Fourth Respondents were (respectively) Ms Cecile Cooper, Mr Henfrey and Ms Linda Redfearn.

50    The Application and Amended Application claimed in respect to the misrepresentations a  contravention of s 345 of the Fair Work Act. That section provides as follows:

Misrepresentations

(1)    A person must not knowingly or recklessly make a false or misleading representation about:

(a)    the workplace rights of another person; or

(b)    the exercise, or the effect of the exercise, of a workplace right by another person.

Note:     This subsection is a civil remedy provision (see Part 4-1).

(2)    Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.

51    Without attempting to be exhaustive as to what each of the three individuals said to Mr Adcock, it is sufficient to note that:

    Ms Cooper had told Mr Adcock that Blackmores “did not want to make you redundant as they have offered you a similar role” and that “redundancy is really less likely to apply to senior managers”;

    Mr Henfrey had told Mr Adcock that he did not “think we’re at that stage yet. We want to find you another role”. He denied Mr Adcock’s account of the conversation, namely that Mr Henfrey had said that “if you are offered an alternate role with similar conditions then redundancy would not kick in”. Mr Henfrey’s account of the conversation was preferred; and

    Ms Redfearn had told Mr Adcock that he was not entitled to receive notice or redundancy pay under the Blackmores Enterprise Agreement due to an express term of his contract.

52    The Federal Circuit Court Judge rejected the claim as to misrepresentations and found that there had been no contravention of s 345 of the Fair Work Act.

53    Ground 5 is rejected for a number of reasons.

54    First, and consistent with the reasons for rejecting Grounds 1 and 2 of the Amended Notice of Appeal, none of the conversations with Mr Adcock contained any misrepresentation. The mere abolition of the position of Commercial Manager Asia did not of itself entitle Mr Adcock to redundancy payments. The making of a “definite decision” that a position was abolished or to be abolished was but one of the requirements to be satisfied before “a redundancy takes place” under cl 38.

55    Second, and assuming that one or other of the representations was misleading, no finding was open that any of the statements were made “knowingly or recklessly” within the meaning of and for the purposes of s 345(1).

56    Third, with one exception, each of the conversations that had been particularised by Mr Adcock in his Application all occurred after mid-August 2014 by which time he had obtained his own independent legal advice. In such circumstances it is difficult to see how he could escape the reach of s 345(2) of the Fair Work Act.

57    The Federal Circuit Court Judge committed no appellable error in rejecting the claim for relief founded upon misrepresentations and a contravention of s 345 of the Fair Work Act.

The rejection of a Calderbank letter – Ground 6

58    Ground 6 of the Amended Notice of Appeal seeks to focus attention upon the rejection of a Calderbank offer dated 3 July 2015. Blackmores had offered to pay Mr Adcock $50,000.

59    In the second decision, published in April 2016 the Federal Circuit Court Judge concluded that Mr Adcock’s case was “a weak one” but “not unarguable”: [2016] FCCA 980 at [6]. It was further concluded that “it was unreasonable of him to not have accepted the respondents’ Calderbank offer of 3 July”: at [7].

60    Such facts, the Federal Circuit Court concluded, fell within s 570(2)(b) of the Fair Work Act. Section 570 provides as follows:

Costs only if proceedings instituted vexatiously etc.

(1)    A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A.

(2)    The party may be ordered to pay the costs only if:

(a)    the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or

(b)    the court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs; or

(c)    the court is satisfied of both of the following:

(i)    the party unreasonably refused to participate in a matter before the FWC;

(ii)    the matter arose from the same facts as the proceedings.

No submission was advanced that the proceeding had been instituted “vexatiously or without reasonable cause…”.

61    A failure to accept a reasonable offer of compromise may constitute an unreasonable act for the purposes of s 570(2): McDonald v Parnell Laboratories (Aust) (No 2) [2007] FCA 2086 at [28] to [30], (2007) 164 FCR 591 at 598 to 599 per Buchanan J; Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20 at [166], (2015) 229 FCR 221 at 255 per Tracey, Gilmour, Jagot and Beach JJ. White J agreed with majority on the question of costs: [2015] FCAFC 20 at [173], (2015) 229 FCR at 256.

62    During the course of the hearing of the appeal. Senior Counsel for Mr Adcock abandoned any reliance upon a submission that the Court lacked power to make an order as to costs. The argument was confined to an argument that the Federal Circuit Court Judge erred in the exercise of his discretion. So confined, the argument must fail. The assessment that the case was a “weak” one was an assessment open for the Circuit Court Judge to make. And furthermore, the weight to be given to such an assessment remained a matter of discretion. Such an exercise of discretion exposes no error of principle such as to warrant being reversed on appeal: House v The King (1935) 55 CLR 499 at 504 to 505.

CONCLUSIONS

63    Leave to raise Grounds 3 and 4 of the Amended Notice of Appeal has been refused. The remaining Grounds of Appeal have been rejected.

64    The appeal is to be dismissed.

THE ORDERS OF THE COURT ARE:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the Respondents.

Associate:    

Dated:    5 August 2016