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Zehnder v Sell Lease Property Pty Ltd T/As Sell Lease Property & Ors (No.2) [2018] FCCA 815 (12 April 2018)

Last Updated: 13 April 2018

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZEHNDER v SELL LEASE PROPERTY PTY LTD T/AS SELL LEASE PROPERTY & ORS (No.2)


Catchwords:
INDUSTRIAL LAW – Alleged contravention of general protections – alleged breaches of Fair Work Act 2009 (Cth) – National Employment Standards – alleged breach of Real Estate Industry Award 2010 (WA) – whether constructive dismissal – accessorial liability – alleged breach of contract.


Legislation:
Code of Conduct for Agents and Sales Representatives 2011 (WA), r.8(2) & (3)
Fair Work Act 2009 (Cth), ss.44, 45, 90(2), 119, 125, 234, 323, 324, 325, 326, 340, 341, 342, 386, 394, 361, 550, 570, 789C
Fair Work Bill 2009 (Cth), Explanatory Memorandum
Fair Work Regulations 2009 (Cth)
Federal Circuit Court Rules 2001 (Cth), rr.15A.09, 15A.14, 21.02(1)(c)
Long Service Leave Act 1958 (WA)
Real Estate and Business Agents Act 1978 (WA)
Real Estate Industry Award 2010 (WA)
Superannuation Guarantee (Administration) Act 1992 (Cth), ss.6, 11, 16, 17, 19
Superannuation Guarantee Charge Act 1992 (Cth)

Cases cited:
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500; (2012) 86 ALJR 1044; (2012) 220 IR 445; (2012) 290 ALR 647; (2012) 64 AILR 101-722
Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222
Cheng v Western Pursuits Trust (t/as Vauxhall Inn) [2016] FCCA 3275
Community and Public Sector Union v Telstra Corporation Limited [2000] FCA 872; (2000) 101 FCR 45
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; (2014) 253 CLR 243; (2014) 88 ALJR 980; (2014) 245 IR 354; (2014) 314 ALR 1; (2014) 66 AILR 102-268
Construction, Forestry, Mining and Energy Union v Clarke [2007] FCAFC 87; (2007) 164 IR 299; (2007) 59 AILR 100-686
Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Limited (No 2) [2017] FCA 1046; (2017) 69 AILR 102-860
Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76; (2015) 231 FCR 150; (2015) 250 IR 422
Construction, Forestry, Mining and Energy Union v Victoria [2013] FCA 445; (2013) 302 ALR 1
Eaton v Sell Less Property Pty Ltd & Ors (No 2) [2018] FCCA 558
Fair Work Ombudsman v Access Embroidery (Australia) Pty Ltd [2012] FMCA 835
Fair Work Ombudsman v Al Hilfi [2012] FCA 1166
Fair Work Ombudsman v Devine Marine Group Pty Ltd [2013] FCA 1135
Fair Work Ombudsman v Liquid Fuel Pty Ltd & Ors [2015] FCCA 2694
General Motors-Holdens Pty Ltd v Bowling (1976) 51 ALJR 235; (1976) 12 ALR 605
Gietzelt v Craig-Williams Pty Ltd (No 1) (1959) 1 FLR 456
Gietzelt v Craig-Williams Pty Ltd (No 2) (1959) 1 FLR 465
Hodkinson v Commonwealth [2011] FMCA 171; (2011) 207 IR 129; (2011) 248 FLR 409; (2011) 63 AILR 101-328
Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899; (1999) 93 FCR 34; (1999) 94 IR 244; (1999) 165 ALR 67
Maslen v Core Drilling Services Pty Ltd & Anor [2013] FCCA 460
National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451
Qantas Airways Limited v Transport Workers' Union of Australia [2011] FCA 470; (2011) 211 IR 1; (2011) 280 ALR 503; (2011) 62 AILR 101-349
Robinson v Harman [1848] EngR 135; (1848) 1 Ex 850
Russell v Institution of Engineers Australia T/A Engineers Australia [2013] FCA 1250
Sagona v R & C Piccoli Investments Pty Ltd & Ors [2014] FCCA 875
Spencer v Dowling [1996] VSC 51; [1997] 2 VR 127
State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184; (2014) 246 IR 441; (2014) 67 AILR 102-322
Storey v The Monitoring Centre Pty Ltd & Ors [2015] FCCA 3310
Thomson v Orica Australia Pty Ltd [2002] FCA 939; (2002) 116 IR 186
Victoria v Construction, Forestry, Mining and Energy Union [2013] FCAFC 160; (2013) 218 FCR 172; (2013) 239 IR 441
Yorke & Anor v Lucas [1985] HCA 65; (1985) 158 CLR 661; (1985) 59 ALJR 776; (1985) 61 ALR 307; [1985] ATPR 40-622


Applicant:
LEE ZEHNDER

First Respondent:
SELL LEASE PROPERTY PTY LTD T/AS SELL LEASE PROPERTY

Second Respondent:
BRETT QUINN

Third Respondent:
GRAEME MACEWAN



File Number:
PEG 128 of 2015

Judgment of:
Judge Antoni Lucev

Hearing dates:
2, 3 and 4 May 2016

Date of Last Submission:
4 May 2016

Delivered at:
Perth

Delivered on:
12 April 2018


REPRESENTATION

For the Applicant:
In person

Counsel for the Respondents:
Mr RJS French

Solicitors for the Respondents:
Barry Nilsson Lawyers


ORDERS

(1) The parties are to confer with a view to reaching agreement on a minute of proposed consent orders, and if agreement is reached the minute of proposed consent orders is to be filed by the applicant by 4.00pm on 26 April 2018.
(2) If agreement as to a minute of proposed consent orders cannot be reached between the parties, then each party is to file and serve a minute of proposed orders by 4.00pm on 3 May 2018.
(3) Otherwise, the matter is adjourned to 2.15pm on 18 May 2018 for mention and further directions.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 128 of 2015

LEE ZEHNDER

Applicant

And

SELL LEASE PROPERTY PTY LTD T/AS SELL LEASE PROPERTY

First Respondent

BRETT QUINN

Second Respondent

GRAEME MACEWAN

Third Respondent


REASONS FOR JUDGMENT

Introduction

  1. Before the Court is a Further Amended Originating Application (“Further Amended Application”) filed on 18 December 2015 by the applicant, Lee Zehnder (“Mr Zehnder”) alleging various contraventions of the Fair Work Act 2009 (Cth) (“FW Act”) by his former employer, the first respondent, Sell Lease Property Pty Ltd T/As Sell Lease Property (“Sell Lease Property”), and accessorial liability in relation to those contraventions for the second and third respondents, Brett Quinn (“Mr Quinn”) and Graeme MacEwan (“Mr MacEwan”) respectively (collectively “Respondents”), who both had senior roles with Sell Lease Property, which is a real estate business for whom Mr Zehnder worked as a part-time sales representative.
  2. There are significant factual and legal similarities between this matter and Eaton v Sell Less Property Pty Ltd & Ors (No 2) [2018] FCCA 558 (“Eaton (No 2)”) delivered by this Court on 9 March 2018, but the two matters are not factually or legally identical in all respects. In the circumstances, the Court has had to consider all of the matters raised in these proceedings afresh.

Claims made in the Further Amended Application

  1. In the Further Amended Application Mr Zehnder alleges that:
    1. he was not given a Fair Work Information Statement (see s.125(1) of the FW Act) when he commenced employment with Sell Lease Property, or at any time thereafter;
    2. on 9 December 2014 he was requested to sign a new casual employment contract or resign, and Mr Quinn (who was Sell Lease Property’s Chief Executive Officer) told him that this was due to recent legal advice in relation to Sell Lease Property’s employment contracts which indicated that the employment contracts were problematic and must be replaced;
    1. on 18 December 2014 Richard King (“Mr King”), a former employee of Sell Lease Property, reached a confidential settlement with Sell Lease Property in relation to a claim he brought against Sell Lease Property;
    1. on 19 December 2014 Mr Quinn sent a text message to Mr Zehnder, and the two subsequently met, with Mr Quinn requesting Mr Zehnder’s resignation, and upon an explanation being sought Mr Zehnder was told that it was due to problems with Sell Lease Property’s employment contracts highlighted by a claim brought about by a former employee, whom Mr Zehnder presumed was Mr King;
    2. in an email to Mr Quinn on 24 December 2014 Mr Zehnder indicated that he would neither resign nor sign a casual employment contract but would consider a revised part-time employment contract, and also sought advice about unpaid wages from the time he had commenced employment with Sell Lease Property;
    3. on 31 December 2014 Mr Quinn and Mr Zehnder met and agreed upon a new mutually agreeable part-time employment contract, and Mr Zehnder also asked Mr Quinn about the payment of his unpaid wages, which he says Mr Quinn refused to back-pay;
    4. on 18 January 2015 Mr Quinn sent Mr Zehnder an email in which he threatened to terminate Mr Zehnder’s employment contract (“Original Contract”) if Mr Zehnder did not sign the new part-time employment contract, and Mr Quinn “reiterated previous legal advice that my existing contract was problematic”;
    5. on 23 January 2015 Mr Zehnder signed the new part-time employment contract (“Part Time Contract”) “despite ongoing concerns fearing that my employment would be terminated otherwise given the previous attempts to constructively dismiss me on 19 December 2014 and 18 January 2015”;
    6. on 30 January 2015 Mr Zehnder sent Mr Quinn an email indicating that he intended to inform him of various issues and concerns with the roster, targets and related matters, and Mr Quinn says that it was also his intention (seemingly not disclosed to Mr Quinn) to discuss bullying;
    7. on 31 January 2015 Mr Zehnder received a letter by email from Mr Quinn headed “Introduction to major change”, in which it was stated that a decision had been made to make all part-time sales representative positions redundant;
    8. on 3 February 2015 following an email to Mr Quinn from Mr Zehnder indicating that in future he would only deal with Mr MacEwan, Mr Quinn sent an email to Mr Zehnder informing him that Sell Lease Property’s lawyer, Steve Heathcote (“Mr Heathcote”), would be responding to all communications on behalf of Sell Lease Property;
    1. Mr Zehnder sent an email to Mr Heathcote on 3 February 2015 asking him “a number of questions regarding the decision to make the part-time sales representative positions redundant, including how many positions were affected; who the decision-makers were; and when I could expect to receive my unpaid wages and entitlements”;
    1. Mr Heathcote replied by email the same day “informing ... that ... [Mr Quinn] was the sole decision-maker; that at least one other person was affected by the decision; and that in the event ... [Mr Zehnder’s] employment was terminated ... [he] would receive everything to which ... [he] was both contractually and legally entitled to under the national employment standards”;
    2. on 4 February 2015 Mr Zehnder received an email from Mr Heathcote informing him that Mr Quinn had instructed Mr Heathcote that there were vacancies for full-time commission only sales representatives, and asked if Mr Zehnder would be interested;
    3. Mr Zehnder replied and advised Mr Heathcote that he would not accept a commission only role as it would be illegal for him to be employed on a commission only basis as he did not meet the pre-requisite criteria under the relevant industrial award (being the Real Estate Industry Award 2010 (WA) (“Award”); and
    4. on 9 February 2015 Mr Zehnder received a letter from Mr Quinn informing him that his employment had been terminated effective immediately on the grounds of redundancy, with payment of a week’s wages in lieu of notice together with accrued annual leave, but none of the other entitlements that Mr Zehnder says that he was owed, and with an amount deducted without Mr Zehnder’s authorisation.
  2. In relation to wages, entitlements and allowances Mr Zehnder alleges that he:
    1. was not paid wages for the period 2 April 2014 to 4 January 2015;
    2. was not paid superannuation on the abovementioned unpaid wages;
    1. was required to use his own mobile phone during the course of employment and was not paid an entitlement to a mobile phone allowance;
    1. was not paid any entitlement to leave loading upon termination;
    2. was required to use his own motor vehicle during the course of employment and was not paid an entitlement to motor vehicle allowance;
    3. was not paid accrued annual leave at the applicable minimum wage rate; and
    4. was not reimbursed for employer required work-related expenses,

as required under the Award.

  1. Mr Zehnder further alleged that:
    1. Sell Lease Property had deducted unauthorised payments from amounts payable to him; and
    2. he was unreasonably required to spend part of an amount payable in relation to the performance of work.
  2. Mr Zehnder alleges that his dismissal was not a genuine redundancy but rather a sham redundancy, and that Sell Lease Property took adverse action against him within the meaning of s.342(1) of the FW Act by:
    1. injuring him in his employment on 9 December 2014, 18 January 2015, 31 January 2015, 4 February 2015 and 9 February 2015;
    2. altering his position to his prejudice on 18 January 2015 and 9 February 2015; and
    1. dismissing him on 9 February 2015,

in contravention of s.340(1) of the FW Act because he had workplace rights under s.341(1)(a), (b) and (c)(ii) of the FW Act.

  1. Specifically in relation to the alleged workplace rights Mr Zehnder says that he was:
    1. entitled to the benefit of a workplace law under s.341(1)(a) of the FW Act, namely:
      1. section 323(1)(a) of the FW Act, which requires an employer to pay an employee, in full, amounts payable in relation to the performance of work, in relation to which he was owed wages and entitlements but was not paid;
      2. clause 19 of the Award which requires employers to reimburse employees for any required work-related expenses incurred, for which he has not been reimbursed;
      3. clause 22.2 of the Award which requires employers to make superannuation contributions to a superannuation fund for the benefit of the employee, which superannuation contributions had not been made on unpaid wages; and
      4. section 119 of the FW Act, which requires employers to pay redundancy pay to employees, which he was not paid because he was dismissed less than two months before the eligibility period of one year’s continuous service;
    2. under s.341(1)(b) of the FW Act he was able to initiate a process or proceeding, namely an application for unfair dismissal under s.394 of the FW Act, and that he was prevented from exercising that workplace right as the dismissal was masked as a genuine redundancy;
    1. under s.341(1)(b) of the FW Act he was able to initiate a process or proceeding, namely an application for a Fair Work Commission order to stop bullying pursuant to s.789FC of the FW Act, which right he was prevented from exercising when he was dismissed by way of adverse action after mentioning his concerns and issues; and
    1. under s.341(1)(c)(ii) of the FW Act he was able to make a complaint or inquiry in relation to his employment, and he had concerns regarding his new roster and consultation requirements under cll.8.2 and 9 of the Award requiring that in the event of a dispute the parties must first attempt to resolve the matter at the workplace by discussions between the employee concerned and the relevant supervisor.
  2. Mr Zehnder also alleges other contraventions of the FW Act, namely:
    1. section 44 of the FW Act by:
      1. failing to give him a copy of the Fair Work Information Statement; and
      2. failing to pay his accrued but untaken annual leave at the correct base rate of pay on termination of employment as required under s.90(2) of the FW Act;
    2. section 45 of the FW Act by:
      1. failing to pay superannuation on his wages in contravention of cl.22.2 of the Award;
      2. failing to pay in accordance with the applicable minimum wage set by the Award;
      3. failing to reimburse for work-related expenses therefore contravening the Award; and
      4. failing to pay at least monthly in contravention of the Award during the period;
    1. section 323 of the FW Act by failing to pay, in relation to the performance of his work, the full contractual entitlement at least monthly;
    1. section 324 of the FW Act by deducting an amount from an amount payable without authorisation;
    2. section 325 of the FW Act by unreasonably requiring him to spend part of an amount payable in relation to the performance of work; and
    3. section 326 of the FW Act by requiring payment of an amount from an amount payable without authorisation.
  3. The alleged contraventions of ss.324 and 326 of the FW Act were ultimately withdrawn by Mr Zehnder.

Amended Response

  1. In an Amended Response filed on 16 January 2016 the Respondents oppose the making of the orders sought by Mr Zehnder, save that Sell Lease Property consents to the making of orders that:
    1. Sell Lease Property pay Mr Zehnder $5,524 in unpaid wages and amounts owing to Mr Zehnder; and
    2. Sell Lease Property pay to Mr Zehnder $2,532.36 in unpaid superannuation, allowances, entitlements and reimbursable expenses owing to Mr Zehnder under the Award,

but otherwise deny Mr Zehnder’s claims.

  1. Sell Lease Property also seeks an order that Mr Zehnder pay its costs in accordance with s.570 of the FW Act.
  2. In relation to the adverse action claims under s.340 of the FW Act, Sell Lease Property:
    1. denies that it contravened s.340 of the FW Act in relation to any actions it took in relation to Mr Zehnder;
    2. admits that it dismissed Mr Zehnder, but says it did not dismiss Mr Zehnder or otherwise alter the position of Mr Zehnder to Mr Zehnder's prejudice:
      1. because Mr Zehnder did or did not:
        1. have a workplace right;
        2. choose to exercise a workplace right;
        1. propose to exercise a workplace right; or
      2. to prevent Mr Zehnder from exercising a workplace right; or
      3. because another third person exercised or proposed to exercise a workplace right for Mr Zehnder’s benefit or a class of persons to which Mr Zehnder belongs;
    1. admits Mr Zehnder made various complaints to Sell Lease Property during the course of his employment with Sell Lease Property;
    1. states that it did not however dismiss Mr Zehnder or otherwise engage in adverse action in respect of Mr Zehnder (which is denied), because of any workplace right Mr Zehnder possessed including because he made any complaint or threatened to make any complaint to any person or organisation during the course of his employment with Sell Lease Property;
    2. states that Mr Zehnder’s employment was terminated only because his position was redundant;
    3. states that even if Mr Zehnder’s dismissal was a “sham redundancy”, which is denied, this does not, in and of itself, give rise to a contravention of s.340 of the FW Act;
    4. states that in relation to allegations about various other incidents made by Mr Zehnder that adverse action was taken against him within the meaning of s.342 of the FW Act, that other than the termination of Mr Zehnder’s employment on 9 February 2015, it does not admit that those incidents occurred as described or that they constituted adverse action within the meaning of s.342 of the FW Act;
    5. states that in January 2015 Sell Lease Property did offer Mr Zehnder a new part-time employment contract in order to ensure that his employment complied with the law, and that any request for Mr Zehnder to enter into a new contract was to ensure compliance with the law, and that following negotiation on its terms Mr Zehnder accepted the Part Time Contract on 23 January 2015;
    6. states that in any event, all part-time roles with Sell Lease Property were, on 9 February 2015, made redundant, and therefore there was no loss or detriment suffered by Mr Zehnder; and
    7. states that in any event, even if it is found that any adverse action was taken in relation to Mr Zehnder, which is denied, such action was not taken because of a workplace right (as defined by s.341 of the FW Act) and therefore Sell Lease Property did not contravene s.340 of the FW Act.
  3. In relation to non-payment of wages and entitlements Sell Lease Property:
    1. admits that there is an outstanding amount of $5,524 in unpaid wages owed to Mr Zehnder: see [9(a)] of the Further Amended Application – Form 2 (“Form 2”);
    2. admits there is an outstanding amount of $2,532.36 in unpaid superannuation, allowances, entitlements and reimbursable expenses, which are owed to Mr Zehnder, and which consist of the following amounts:
      1. superannuation in respect of the abovementioned unpaid wages - $524: Form 2 at [9(b)];
      2. work-related expenses - $100: Form 2 at [9(c)];
      3. mobile phone allowance - $1,089: Form 2 at [9(d)];
      4. motor vehicle allowance - $225: Form 2 at [9(e)];
      5. underpayment of accrued annual leave - $44: Form 2 at [9(f)]; and
      6. leave loading - $100: Form 2 at [9(g)]; and
    1. otherwise denies Mr Zehnder’s claims for work-related expenses.
  4. In relation to the allegations of impermissible spending requirements and deductions Sell Lease Property denies that Mr Zehnder was unreasonably required to spend part of an amount payable in relation to the performance of work in contravention of s.325 of the FW Act.
  5. In relation to Mr Zehnder’s eligibility for a redundancy payment Sell Lease Property denies that Mr Zehnder is entitled to any redundancy payment and says that he was not employed by it for the minimum statutory period of 12 months to entitle him to any redundancy payment.
  6. In relation to the provision of a Fair Work Information Statement to Mr Zehnder by Sell Lease Property, Sell Lease Property admits that it did not provide the Fair Work Information Statement to Mr Zehnder.
  7. In relation to the claims of accessorial liability as against Mr Quinn and Mr MacEwan Sell Lease Property says that:
    1. Mr Quinn did not contravene s.550 of the FW Act as there has been no primary contravention of ss.325 and 340 of the FW Act by Sell Lease Property in which Mr Quinn could be involved. No accessorial liability claim in respect of a breach of s.325 of the FW Act has been particularised in the Further Amended Application;
    2. Mr Quinn was not a director of Sell Lease Property during the course of Mr Zehnder’s employment;
    1. Mr MacEwan did not contravene s.550 of the FW Act as there has been no contravention by Sell Lease Property in which Mr MacEwan could be involved;
    1. in any event, Sell Lease Property’s decisions to make Mr Zehnder’s position redundant, and subsequently to terminate his employment, were made without the knowledge of Mr MacEwan. Mr MacEwan only became aware that those decisions had been made after they were made;
    2. Mr MacEwan had no knowledge of the amounts that Sell Lease Property paid to Mr Zehnder in respect of wages, commissions, superannuation, entitlements, allowances, work-related expenses or any other amounts and no knowledge of any amounts that Sell Lease Property required Mr Zehnder to spend; and
    3. in the circumstances referred to above, Mr MacEwan denies that he was involved in Sell Lease Property’s alleged contraventions for the purpose of s.550 of the FW Act.
  8. In relation to costs Sell Lease Property says that:
    1. save for the claims which Sell Lease Property concedes above, Mr Zehnder has acted without reasonable cause, within the meaning of s.570(2)(a) of the FW Act, in instituting these proceedings for the residual claims;
    2. Mr Zehnder has acted unreasonably, within the meaning of s.570(2)(b) of the FW Act, in maintaining all of his claims and has caused the Respondents to incur costs; and
    1. the Respondents seek the costs of defending Mr Zehnder’s claims.

Evidence

  1. Mr Zehnder relied upon the following affidavits:
    1. Mr Zehnder’s affidavit affirmed 2 October 2015 (“Zehnder October 2015 Affidavit”);
    2. Mr Zehnder’s affidavit affirmed 29 January 2016 (“Zehnder January 2016 Affidavit”); and
    1. Mr Zehnder’s affidavit affirmed 4 March 2016 (“Zehnder March 2016 Affidavit”).
  2. The Respondents relied upon the following affidavits:
    1. affidavit of Brett Quinn, affirmed 28 April 2016 (“Quinn Affidavit”);
    2. affidavit of Brian McKiernan, affirmed 19 February 2016 (“McKiernan Affidavit”); and
    1. affidavit of Graeme MacEwan, affirmed 19 February 2016 (“MacEwan Affidavit”).
  3. The Court has had regard to the admissible evidence in each of the above affidavits, and the exhibits tendered in the proceedings.
  4. The Court has also had regard to the evidence as it appears in the transcript of the proceedings over three days. The transcripts of days 1 and 2, being 2 and 3 May 2016 (which the Court will refer to as “TD1” and “TD2” respectively) are numbered consecutively from page 1 through to page 117, but the transcript of the final day, 4 May 2016, being day 3, re-commences at page 1 and goes to page 21. The Court has read the transcript in its entirety, and re-read several parts of it, during preparation of the Reasons for Judgment.
  5. Insofar as the evidence is concerned the Court has placed more reliance on the evidence of Mr Quinn and Mr McKiernan than that of Mr Zehnder. Mr Zehnder’s evidence, whilst not unreliable, had a tendency to exaggeration (as in his characterisation of a perfectly normal email as a threat: see [57] below) and a tendency to make assertions and treat them as facts. By contrast, both Mr Quinn and Mr McKiernan gave their evidence in a straightforward and believable manner. Mr MacEwan’s evidence was generally to the point, including his admissions against interest in relation to the question of accessorial liability, but there were some elements of his relatively short evidence which were a little vague (but at the end of the day nothing significant turns on them).

Factual background

  1. The business of Sell Lease Property is that of a real estate agent and property manager, operating in both commercial and residential real estate sales. In order to effect sales and run its business Sell Lease Property engages sales representatives: McKiernan Affidavit at [1]-[2]; MacEwan Affidavit at [13]-[14].
  2. The operations structure of Sell Lease Property was that:
    1. Mr Quinn was the Chief Executive Officer responsible for running the business;
    2. Mr McKiernan was the Operations Manager who assisted Mr Quinn; and
    1. Mr MacEwan was a Director and Licensee involved in the overall management of Sell Lease Property.

MacEwan Affidavit at [1]-[9].

  1. Decisions in relation to Mr Zehnder’s employment, and in particular decisions relating to engagement, status and termination were decisions for which Mr Quinn was primarily responsible: Quinn Affidavit at [5]; MacEwan Affidavit at [7].

Mr Zehnder’s employment

  1. Mr Zehnder commenced employment with Sell Lease Property on 2 April 2014, and was employed as part-time sales representative: Zehnder October 2015 Affidavit at [1] and [4], under the terms of the Original Contract which was comprised of:
    1. a signed letter of offer; and
    2. a schedule of remuneration, benefits and employment conditions, and some other documents: Zehnder October 2015 Affidavit at Annexure A.
  2. The Contract describes Sell Lease Property, the employer as “the Supplier”, and Mr Zehnder, the employee as “the Customer”. The Contract relevantly provides as follows:
    1. that Mr Zehnder was engaged as a “Property Consultant”, and was required to work in accordance with the Original Contract, and the Real Estate and Business Agents Act 1978 (WA) (“REBA Act”), and any regulations thereto, the Real Estate Institute of Western Australia (“REIWA”) Code of Practice, the REIWA Code of Ethics, the REIWA Auction Code of Conduct, the Department of Commerce Code of Conduct and any policies of “the Agent” (a term not defined but presumably intended to include Sell Lease Property ) “as amended from time to time”: Contract at page 1;
    2. it was agreed that “in the event of termination, the Customer shall be required to pay to the company, upon invoice, all outstanding personal profile marketing expenses and immediately return all equipment supplied by the company ... unless already paid for by the Customer”, noting that “the company” is also a term not defined in the Contract, but presumably intended to mean Sell Lease Property: Contract at page 1;
    1. obliged the Customer to comply with all reasonable and lawful directions given by the Supplier from time to time and to adhere to the terms of the Supplier’s Policy Procedure Manual: Contract at page 1;
    1. that the “... customer shall not without the consent of the supplier be engaged or interested in either directly or indirectly in any capacity, in any trade, business or occupation which may interfere with the performance of his duties”: Contract at page 2;
    2. that the supplier was to provide to the customer, within 7 days of each pay period expiring, a statement detailing all income and expenses for that pay period for which the customer was responsible: Contract at page 2;
    3. that the customer was to provide and maintain their own vehicle;
    4. that the customer was required to provide and maintain a mobile phone at the customer’s own cost as required;
    5. for the customer to pay any penalty, fine, or both, imposed pursuant to the provisions of the REBA Act (and Regulations thereto), and the various Codes of Practice, Ethics and Conduct, as a result of some wrongful act or negligence or default of the customer, to “the Agent” the full amount of any penalty or “fee”, unless such “costs” were covered by the supplier’s Professional Indemnity Insurance Policy: Contract at page 2; and
    6. the customer agreed to work “8 hours per week to be averaged over a 12-month period”, and that the “customer’s hours shall be worked as agreed between the customer and the supplier, to suit the operational requirements of the business”: Contract at page 2.
  3. Under the heading “Costs Incurred Upon Commencing Employment”, “Remuneration” and “Superannuation” the Contract at pages 3-4 provided as follows:
  4. The Contract went on to provide:
    1. a Fair Treatment System whereby any issues of customer disagreement with decisions of the supplier are to be attempted to be resolved by addressing them with the Licensee, but if they remain unresolved are to “be dealt with by the Sell Lease Property Fair Treatment Procedure” with work continuing normally as directed by the Licensee whilst issues are being addressed: Contract at page 4;
    2. for a “Sell Lease Property Equal Employment Opportunity Procedure” (“EEO Procedure”) to define the supplier’s obligations and assist in achieving a harassment free workplace, with any complaint or dispute concerning equal opportunity or discrimination to be dealt with in accordance with the EEO Procedure: Contract at page 4;
    1. for attendance at meetings in the following terms:
      • To maintain a cohesive team Sell Lease Property requires EVERY customer of the su[p]plier to attend as a minimum ONE team meeting each month. If you are absent from the SLP Mandatory Team Meeting more than twice in any given year without approval from the general manager this employment contract will be terminated. You may also be required to attend other meetings as requested by Sell Lease Property from time to time for the purposes of keeping you updated with organizational and industry changes.

Contract at page 4; and

  1. in relation to “All profile (Personal) marketing activities” the Contract provides that they are only to be “implemented/produced once full payment is received in advance from the customer” and that it is the customer who is “responsible for all expenses associated with the design, production and distribution of all personal marketing activities”: Contract at page 6.
  1. In relation to termination of the Contract (whether by dismissal or resignation) the Contract provided as follows:

Contract at pages 6-7.

  1. The Contract also provided that any amendments to the Contract might be made “as and when required to meet the ongoing needs of the Company. No changes will be made without consulting the relevant customer first”: Contract at page 7.
  2. The Contract is signed by Mr MacEwan in his capacity as “Licensee/Director”: Contract at page 7.
  3. Mr Zehnder had no prior work experience within the real estate industry before he was employed by Sell Lease Property: Zehnder October 2015 Affidavit at [2]; and as such he was referred to (as were other sales representatives without prior real estate experience) as a “rookie”: Quinn Affidavit at [11].
  4. The mode of payment of Mr Zehnder under the Contract was by way of commission payment only: Zehnder October 2015 Affidavit at [4].

Commission payments

  1. Although the Original Contract provided for Mr Zehnder to work an average of 8 hours per week, and was effectively a contract for a part-time sales representative, it would appear that Sell Lease Property either engaged or treated the majority, if not all, of its sales representatives as if they were employed on a commission only basis, and did so because:
    1. this was perceived to offer greater incentive to perform; and
    2. Sell Lease Property financial and managerial resources were not sufficiently large to support a large inexperienced salary based workforce of sales representatives: Quinn Affidavit at [10].
  2. Concerns with respect to the commission only method of payment of sales representatives arose during the latter half of 2014 when an employee of Sell Lease Property raised concerns as to whether or not he had been properly paid: Quinn Affidavit at [11].
  3. The effect of the legality of the commission only payments for the sales representatives’ workforce being raised was that Sell Lease Property sought legal advice as to whether it could employ “rookies” on employment contracts which provided for payments on a commission only basis: Quinn Affidavit at [11].
  4. The legal advice received by Sell Lease Property, on or about 21 November 2014, was that:
    1. “rookie” sales representatives could not be employed on contracts which provided for commission only payments as that did not satisfy the requirements of the Award; and
    2. Sell Lease Property ought to terminate the contracts of employment for rookie sales representatives which provided for payment on the basis of commission only, as those contracts did not meet the minimum requirements of the Award: Quinn Affidavit at [12]-[13] and Annexure BRQ-2; McKiernan Affidavit at [20].

Commission and casual contracts

  1. The consequence of the receipt of advice that commission only contracts did not meet the requirements under the Award for “rookie” employees was that Sell Lease Property determined that commission only contracts would only be offered to its more experienced sales representatives in accordance with the requirements of the Award, and that those who did not meet the Award requirements for commission only contracts would be asked to enter into casual wage based contracts: Quinn Affidavit at [15]. The rationale behind offering casual wage based contracts was that:
    1. it reduced the risk of an unproductive sales representative (that being someone not selling houses) who might be an ongoing financial and practical burden on the business;
    2. they require less management than a part-time employee who had to be rostered for consistent weekly hours and who had to be found work for that time; and
    1. casual employees could be asked to work whenever they were needed, and could deal with any surplus work that warranted extra workers: Quinn Affidavit at [15]-[16].
  2. Put shortly, in Mr Quinn’s view, a casual employee offered flexibility whereas a part-time employee was a fairly rigid obligation: Quinn Affidavit at [16].
  3. A spreadsheet was created by Mr Quinn in which he identified employees by name, and where those employees were to be on commission only contracts the number “4” appeared next to their name: Quinn Affidavit at [317] and Annexure BRQ 3. In relation to Mr Zehnder, Mr Quinn identified that Mr Zehnder did not meet the requirements for a commission only contract and therefore required a new casual contract, and in that regard he was one of 13 or so other employees who were in the same situation: Quinn Affidavit at [19]. Mr Quinn determined to deal firstly with those employees who were to be offered a replacement casual contract, and then to roll out new commission only contracts to employees who met the Award requirements for commission only contracts: Quinn Affidavit at [19].

The offer of casual contracts

  1. Employees who were to be offered casual contracts were emailed by Mr Quinn on 9 December 2014: Quinn Affidavit at [20] and Annexure BRQ-4. The terms of an email sent by Mr Quinn to those being offered casual contracts:
    1. indicated that as a result of a recent event Sell Lease Property had been required to seek independent legal advice concerning employment contracts;
    2. indicated that the lawyers had advised Sell Lease Property that current employment contracts were “problematic and should be cancelled ASAP”;
    1. indicated that the present contract needed to be replaced with one that was more appropriate;
    1. included the terms of the Award provision concerning commission only employment, that being cl.16; and
    2. included some analysis of the possible upside and downside to being employed on a casual basis: Quinn Affidavit at Annexure BRQ-4.
  2. The email also:
    1. requested that Mr Zehnder provide evidence that he had earned at least $35,000 per annum in commission in any 12 month period over the previous five years in case he was eligible for a commission only contract, and this was done because it appeared to be the relevant requirement under the Award for commission only contracts; and
    2. states that if the employee does not meet the criteria for a commission only contract then they will be offered a casual employment contract: Quinn Affidavit at Annexure BRQ-4
  3. The email also expressly said as follows:

Quinn Affidavit at Annexure BRQ-4.

  1. Mr Zehnder asserts that the purport of the email was that he had to sign a new casual contract or resign. Sell Lease Property submits that the email did not state that Mr Zehnder’s employment would be terminated or that he would be forced to resign if he did not sign the casual employment contract.
  2. The casual employment letter of offer sent to employees was in the following terms:

The letter was sent from Mr Quinn: Quinn Affidavit at Annexure
BRQ-4

  1. Mr Zehnder replied to the 9 December 2014 email from Mr Quinn querying whether the email was intended for him as he thought that it was only for people who were currently on commission only contracts, and that he was on a part-time, 8 hours per week, contract “at the federal minimum award rate”: Quinn Affidavit at Annexure BRQ-5; Zehnder October 2015 Affidavit at [15] and Annexure F.
  2. Mr Zehnder said that Mr Quinn said that he would check Mr Zehnder’s employment status with Mr McKiernan and get back to Mr Zehnder: Zehnder October 2015 Affidavit at [15] and Annexure F.

Alleged constructive dismissal

  1. Mr Zehnder asserts that on 18 December 2014 Mr King, a former sales representative at Sell Lease Property reached a confidential settlement with Sell Lease Property in relation to a claim he brought against it for unpaid wages and commissions.
  2. Mr Zehnder says that on 19 December 2014 he received a text message on his mobile phone from Mr Quinn asking him to attend a meeting regarding the 9 December 2014 email. Mr Zehnder says that he attended the meeting with both Mr Quinn and Mr McKiernan and that during that meeting:
    1. Mr Quinn asked him to resign;
    2. Mr Zehnder was shocked by this and when he asked Mr Quinn further questions Mr Quinn mentioned that a former employee had taken legal action due to problems with Sell Lease Property’s contract;
    1. in response to a question from Mr Zehnder Mr McKiernan indicated that Mr Zehnder did not have to leave immediately but could have a week to sort things out and find new employment; and
    1. when Mr Zehnder asked where would he go, Mr McKiernan suggested a couple of other agencies: Zehnder October 2015 Affidavit at [17].

Although it is not set out in his account of the 19 December 2014 meeting it is apparent that Mr Zehnder was offered a casual contract at that meeting (or, that the offer previously made was renewed or reiterated) because Mr Zehnder subsequently sent an email to Mr Quinn indicating that he would neither resign nor accept a casual contract: Zehnder October 2015 Affidavit at [18].

  1. The evidence of Mr Quinn and Mr McKiernan indicates that at the meeting on 19 December 2014 it was explained to Mr Zehnder by them that:
    1. Mr Zehnder could not continue on the current part-time contracts which were “problematic”;
    2. Mr Zehnder could not go on to a commission only contract because he did not meet the Award requirements for a commission only contract; and
    1. together with other employees who did not meet the Award requirements for a commission only contract, Mr Zehnder was being offered a casual contract: McKiernan Affidavit at [25]; Quinn Affidavit at [26].
  2. Sell Lease Property does not dispute that Mr Quinn admitted that he told Mr Zehnder that if Mr Zehnder did not sign the casual contract of employment then Sell Lease Property would not be able to offer him further employment, and that he would have to resign. In response to Mr Zehnder questioning what else he could do Mr McKiernan suggested that he could go to another real estate agent that offered more one-on-one training and mentoring: McKiernan Affidavit at [25]; Quinn Affidavit at [26]. Mr Quinn says that at the end of the discussion Mr Zehnder asked for a couple of days to think about his options and Mr McKiernan and he told Mr Zehnder “that was fine”: Quinn Affidavit at [28]. There is no dispute that there was, at the 19 December 2014 meeting, the offer of a casual contract made to Mr Zehnder by Sell Lease Property: Zehnder October 2015 Affidavit at [18].
  3. On 24 December 2014 Mr Zehnder sent an email to Mr Quinn: Zehnder October 2015 Affidavit at Annexure G, indicating that:
    1. Mr Zehnder would not sign the casual contract he had been offered;
    2. Mr Zehnder would not resign from Sell Lease Property;
    1. Mr Zehnder would consent to having his current part-time contract reviewed; and
    1. Mr Zehnder raised the issue of not having received wages since commencing employment and noting the minimum rate in the Award.
  4. Further emails were exchanged between 24 and 26 December 2014 between Mr Zehnder and Mr Quinn. Mr Quinn replied to Mr Zehnder’s email of 24 December 2014 later that day, and made a number of comments as follows:
    1. “We do not have a problem with you not wanting to resign. As mentioned at our meeting your resignation was purely discussed as an option for you to consider in light of our comments made at our meeting on 19th Dec in respect to us having limited ability to support you in achieving your goals at such an early stage of your career”;
    2. “Thank you for clarifying your position in relation to our offer of casual employment. As I’m sure you’re aware this change of employment contract would need to be mutually agreed to by both parties. Again this is not a problem for us”;
    1. said that Mr Zehnder had received $8,162 in gross payroll since the commencement of his employment at Sell Lease Property and that that was in excess of the requirement and in Mr Quinn’s view this exceeded the minimum requirements under the Award; and
    1. said that Mr Zehnder was required to attend a meeting with Mr McKiernan and Mr Quinn on December 30, 2014 at 10.30am “to discuss your continued employment”.

Quinn Affidavit at Annexure BRQ-6.

  1. On Christmas Day 2014 there was an exchange of emails concerning the proposed meeting in the course of which:
    1. Mr Quinn indicated to Mr Zehnder that he was happy for Mr Zehnder to bring a support person to the meeting; and
    2. Mr Zehnder asked whether the meeting could be re-scheduled to 10.30am on Wednesday, 31 December 2014: Quinn Affidavit at Annexure BRQ-6.
  2. On Boxing Day 2014 at 11.08am Mr Quinn emailed Mr Zehnder to indicate that the meeting on 31 December 2014 at 10.30am “is fine. Please ensure that this appointment is not re-scheduled”, to which Mr Zehnder replied a few minutes later at 11.16am “Or what Brett? Are you threatening me?” Mr Quinn then responded (perhaps unsurprisingly given the tenor of the previous emails) that he was “not sure how you’ve interpreted that from my email”. He went on to say that he was “keen to ensure that we get this outstanding issue resolved quickly for your sake and ours” and that he had to coordinate other people to be at the meeting and that it was difficult when the meeting gets re-scheduled: Quinn Affidavit at Annexure BRQ-6. Mr Zehnder subsequently indicated that he and his support person “unless due to unforeseen circumstances, ... will be attending this important meeting ...”. Mr Quinn replied saying as follows:
  3. Mr Zehnder replied confirming attendance at the 31 December 2014 meeting and indicating that he would outline his issues and concerns to Mr Quinn at that time.
  4. The various emails between 24 and 26 December 2014 are in the Quinn Affidavit at Annexure BRQ-6.
  5. The meeting took place on 31 December 2014 between Mr Zehnder (who had a support person present), and Mr Quinn and Mr McKiernan. Mr Zehnder:
    1. expressed disappointment at what he perceived to be an attempt to constructively dismiss him by asking him to resign and making him feel that he had no alternative;
    2. stated that if there were genuine concerns regarding his contract he was willing to consider a new contractual arrangement by mutual agreement; and
    1. asked about outstanding wages, and Mr McKiernan’s statement during his induction that there was no requirement to pay him on a regular basis and that he would be paid at the end of the year, and says that Mr Quinn responded that he would not back-pay any wages: Zehnder Affidavit at [19]; Quinn Affidavit at [30].
  6. Mr Quinn also says that mention was made of errors in the frequency of payment and that he accepted that that was the case: Quinn Affidavit at [30]. Mr McKiernan says that when the issue of what Mr Zehnder was told when he was signed up was raised he indicated to Mr Zehnder that he had been employed on a commission only basis, and that Mr Quinn reiterated this point: McKiernan Affidavit at [29]. Strictly speaking this view held by Mr Quinn and Mr McKiernan as to the Original Contract being on a commission only basis is wrong, as that contract provided for Mr Zehnder to be employed part-time with payment pursuant to the minimum rate under the Award, but the mistaken view reinforces the Court’s view, expressed earlier: see [36] above, that Sell Lease Property either engaged or treated the majority, if not all, of its sales representatives as if they were employed on a commission only basis.
  7. On 1 January 2015 Mr Quinn received a phone call from Mr Zehnder in which Mr Zehnder said he was “happy to consider a revised part-time contract”: Quinn Affidavit at [31]. Subsequently, on 1 January 2015 Mr Zehnder received an email from Mr Quinn outlining some of the points from the meeting on 31 December 2014: Zehnder October 2015 Affidavit at [20] and Annexure H; Quinn Affidavit at [31] and Annexure BRQ-7. Mr Quinn’s 1 January 2015 email was in the following terms:
  8. Mr Zehnder responded to Mr Quinn’s 1 January 2015 email the same day saying that he believed that the issues had been resolved insofar as the continuing employment relationship was concerned, and that he would await a copy of the proposed new employment contract: Quinn Affidavit at Annexure BRQ-7. Mr Zehnder admitted in his evidence that after 31 December 2014 “I thought things were good”: TD1 at 21.

Part-time contracts

  1. In January 2015 Mr Quinn decided that Sell Lease Property would create a new salaried part-time contract that was compliant with the Award: Quinn Affidavit at [32].
  2. Following emails concerning the new part-time contract there was a meeting between Mr Quinn and Mr Zehnder on 12 January 2015 to discuss the terms of his new part-time contract: Quinn Affidavit at [33]-[34]; Zehnder October 2015 Affidavit at [22].
  3. On 18 January 2015, Mr Zehnder emailed Mr Quinn a list of concerns regarding the proposed new part-time employment contract and position description: Zehnder October 2015 Affidavit at [23] and Annexure J, including the following:
    1. the rate of pay being lower than the Award rate;
    2. a penalty provision in the restriction of trade clause; and
    1. key performance indicators that Mr Zehnder felt were unachievable based on his limited sales experience.
  4. Mr Quinn responded by email on the same day agreeing to correct the rate of pay and to reduce the penalty in the restriction of trade clause, but Mr Zehnder says that he also threatened to terminate Mr Zehnder’s employment if Mr Zehnder did not sign the proposed new part-time employment contract: Quinn Affidavit at Annexure BRQ-9; Zehnder October 2015 Affidavit at Annexure J. In his email Mr Quinn said as follows:

Quinn Affidavit at Annexure BRQ-9.

  1. On 22 January 2015 at 11.18am Mr Quinn sent to Mr Zehnder a revised part-time contract of employment and position description following the changes requested by Mr Zehnder: Quinn Affidavit at BRQ-9.
  2. On 23 January 2015 Mr Zehnder:
    1. signed the Part Time Contract despite what he says were ongoing fears that his employment would be terminated, based upon the previous attempts to allegedly constructively dismiss him: Zehnder October 2015 Affidavit at [25] and Annexure L; and
    2. raised concerns with Mr Quinn concerning the new position description, and the roster, and claimed he was not consulted on their terms: Zehnder October 2015 Affidavit at [25] and Annexure K.
  3. The Part Time Contract provided for a commencement date of 12 January 2015 with Mr Zehnder to work in the role of part-time sales representative: Part Time Contract, items 1-4. In relation to hours the Part Time Contract essentially required Mr Zehnder to work 8 hours per week: cl.8.1, and for him to have leave entitlements arising under the National Employment Standards and the Long Service Leave Act 1958 (WA). The part-time contract provided for two hourly rates, one being $16.50 per hour and the other $16.87 per hour: Part Time Contract at cl.10.1 and item 5.
  4. In relation to termination of employment the Part Time Contract provided for termination by Sell Lease Property “giving at least two weeks’ notice” to Mr Zehnder: Part Time Contract at cl.15.1(b), and that if the termination was as a consequence of redundancy the entitlement to redundancy payment only arose from the National Employment Standards: part-time contract, cl.16.
  5. Clause 15.3 of the Part Time Contract also provided that if the employment of Mr Zehnder was terminated, regardless of how that happened, Mr Zehnder “must immediately repay any debt he owes to SLP, without SLP being obliged to demand payment”.
  6. Clause 15.2 of the Part Time Contract provides for Sell Lease Property to be able to discharge its obligation with respect to notice of termination by paying Mr Zehnder the amount that he would have been entitled to receive as remuneration during the notice period or any unexpired portion of the notice period.
  7. On 25 January 2015 Mr Zehnder received an email from Mr Quinn concerning the expectations in relation to key performance indicators: Quinn Affidavit at [36] and Annexure BRQ-10; Zehnder October 2015 Affidavit at Annexure M. Mr Zehnder says that he had misinterpreted an earlier email from Mr Quinn and had inadvertently failed to complete certain tasks within certain timeframes or deadlines: Quinn Affidavit at Annexure BRQ-10. Mr Zehnder says that the 25 January 2015 email from Mr Quinn, and subsequent email replies on 26 January 2015, constituted bullying behaviour by micro-managing him and trying to create a power imbalance.
  8. On 29 January 2015 Mr Zehnder received another email from Mr Quinn querying why he had not completed a task (time log entries) that had been set, when Mr Zehnder says he had in fact completed it, and requesting information in relation to a particular property which was not selling. Mr Zehnder says that Mr Quinn also gave him additional work to do when Mr Zehnder felt that his workload was already excessive given that he was a part-time eight hour a week employee, and on 30 January 2015 Mr Zehnder replied informing Mr Quinn of his intention to outline various issues and concerns with his work roster, targets and other matters at their first fortnightly performance review discussion on 31 January 2015: Quinn Affidavit at Annexure BRQ-10; Zehnder October 2015 Affidavit at Annexure M. Mr Quinn indicated that he was happy to discuss those concerns with Mr Zehnder at the meeting: Quinn Affidavit at Annexure BRQ-10; Zehnder October 2015 Affidavit at Annexure M.

Reconsideration of part-time contracts

  1. Having offered Mr Zehnder the Part Time Contract it appears that, at about the same time, Mr Quinn was reconsidering the viability of part-time contracts at Sell Lease Property, and having done so, decided to abolish all of the part-time contract positions: Quinn Affidavit at [37]-[40].
  2. The reasons for Mr Quinn making that decision are set out in full at [37]-[40] of the Quinn Affidavit as follows:
  3. Mr Quinn was cross-examined as some length by Mr Zehnder in relation to the operative reason for deciding to abolish the part-time sales representatives’ positions, and was not moved from the substance of the evidence in his affidavit at [77] above: see TD2 at 67-68, 73, and particularly at 77-79.

Abolition of part-time contracts

  1. On 31 January 2015 Mr Quinn sent a letter to each of the sales representatives on part-time contracts. Mr Quinn informed them that the sales representatives’ positions on part-time contracts were being abolished. There were four sales representatives to whom the letter was sent. Mr Quinn’s letter advised as follows:

Quinn Affidavit at [39] and [42] and Annexure BRQ-11; Zehnder October 2015 Affidavit at Annexure N.

  1. Both Mr McKiernan and Mr MacEwan were copied into the email annexing the above letter sent to the employees concerned: Zehnder October 2015 Affidavit at [29] and Annexure N.
  2. Mr Zehnder says that he subsequently received a telephone call from a Ms Eng, a sales representative at Sell Lease Property, who:
    1. told him that she had received a telephone call from Mr Quinn regarding her part-time employment contract;
    2. said that she was unaware that she was on a part-time contract; and
    1. said that Mr Quinn had said that she was someone that Sell Lease Property did not want to “let go”.

Mr Zehnder further asserted that as at 2 October 2015 when he swore his affidavit Ms Eng was still employed at Sell Lease Property.

  1. On 3 February 2015 Mr Zehnder sent an email to Mr Quinn in which he alleged that Mr Quinn and Mr McKiernan had been bullying him and that he would only deal with Mr MacEwan (who was copied into the email) until further notice: Zehnder October 2015 Affidavit at [31] and Annexure O; Quinn Affidavit at [44] and Annexure BRQ-12. Mr Quinn replied to Mr Zehnder’s 3 February 2015 email and advised that Sell Lease Property’s lawyer, Mr Heathcote, would be responding to all future communications on behalf of Sell Lease Property. Mr MacEwan was copied in to these emails: Zehnder October 2015 Affidavit at [31] and Annexure O; Quinn Affidavit at [44] and Annexure BRQ-12.
  2. Between 3 and 6 February 2015 Mr Zehnder sent a number of emails to Mr Heathcote containing questions about Sell Lease Property’s decision to make the part-time sales representatives’ positions redundant. In responses received by Mr Zehnder Mr Heathcote:
    1. said that Mr Quinn was the sole decision-maker;
    2. said that the decision to make the part-time sales representatives’ positions redundant was made late the previous week, but did not provide an exact date;
    1. said the only vacancies at that time at Sell Lease Property were full-time commission only roles;
    1. said the view reached by Sell Lease Property was that the return produced by the part-time sales representatives’ roles did not justify the resources necessary to maintain them;
    2. said that Mr Zehnder would be paid everything to which he was legally and contractually entitled; and
    3. asked Mr Zehnder if he had any interest in taking on a commission only role, to which Mr Zehnder responded that it would be illegal for him to do so as he did not meet the prerequisite criteria for a commission only role. It is pertinent to observe that Mr Quinn gave evidence that Mr Heathcote had no instructions to say what he said in this regard to Mr Zehnder: TD2 at 90.

Mr MacEwan was again copied in to these emails: Zehnder October 2015 Affidavit at [32]-[33] and Annexure P; Quinn Affidavit at [45] and Annexure BRQ-13; MacEwan Affidavit at [19]-[20].

  1. On 9 February 2015 Mr Quinn emailed Mr Zehnder advising that his employment had been terminated effective immediately on the grounds of redundancy and that he would be paid a week’s wages in lieu of notice, together with accrued annual leave, but Mr Zehnder says that none of the other entitlements owing to him, including motor vehicle and mobile phone allowances were paid, and that he also had an entitlement to a further week’s payment in lieu of notice under the Part Time Contract. Mr Zehnder also says that he was paid at the incorrect hourly rate. Again, Mr MacEwan was copied in to the email from Mr Quinn: Zehnder October 2015 Affidavit at [34] and Annexure B; Quinn Affidavit at [46] and Annexure BRQ-14.
  2. Mr Quinn gives as his reasons for terminating Mr Zehnder’s employment the following at [47]-[48] of the Quinn Affidavit:
  3. Mr Quinn says that Mr Zehnder was given payment in lieu of notice on termination, but was not paid redundancy pay because he did not meet the 12 months service requirement: Quinn Affidavit at [50].

Alleged contravention of s.340 of FW Act

General protections

  1. Section 340 of the FW Act provides as follows:

Alleged workplace rights

  1. Section 341(1) and (2) of the FW Act provides as follows:

Law

  1. In the context of adverse action proceedings it is for Mr Zehnder to establish that:
    1. he exercised the workplace rights pleaded in his claim;
    2. the conduct complained about in fact occurred; and
    1. that conduct constitutes adverse action under s.342(1) of the FW Act.
  2. In relation to proof in adverse action claims Mr Zehnder bears the onus of demonstrating that:
    1. he has, or has exercised, a workplace right as defined in s.341 of the FW Act; and
    2. one or more of the Respondents has taken adverse action against him as defined in s.342(1) of the FW Act: Hodkinson v Commonwealth [2011] FMCA 171; (2011) 207 IR 129; (2011) 248 FLR 409; (2011) 63 AILR 101-328 at [130] per Cameron FM.
  3. If Mr Zehnder proves the conduct and alleges that the conduct was carried out for a prohibited reason, it is for Sell Lease Property to prove, on the balance of probabilities, that it was not motivated by an impermissible reason: FW Act, s.361(1); Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899; (1999) 93 FCR 34; (1999) 94 IR 244; (1999) 165 ALR 67 at [221] per RD Nicholson J.
  4. The principles, in determining whether an employer has proven otherwise were established in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500; (2012) 86 ALJR 1044; (2012) 220 IR 445; (2012) 290 ALR 647; (2012) 64 AILR 101-722 (“Barclay”), and can be summarised as follows:
    1. the central question to be determined: “why was the adverse action taken?” is one of fact;
    2. the central question is to be answered having regard to all the facts established in the proceeding;
    1. the Court is concerned to determine the actual reason or reasons which motivated the decision-maker, but is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker, and nor should such an inquiry be made;
    1. it will be extremely difficult to displace the statutory presumption in s.361 of the FW Act if no direct testimony is given by the decision-maker acting on behalf of the employer;
    2. even if the decision-maker gives evidence that they acted solely for non-proscribed reasons other evidence, including contradictory evidence given by the decision-maker, may render such assertions unreliable; and
    3. if, however, the decision-maker’s testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by s.361 of the FW Act.

See State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184; (2014) 246 IR 441; (2014) 67 AILR 102-322 at [32] per Tracey and Buchanan JJ.

  1. It follows therefore that mere declarations of innocent reason or intent in taking adverse action may not satisfy the onus upon an employer if contrary inferences are available on the facts: Barclay at [54] per French CJ and Crennan J. The question is whether the proscribed reason was a substantial and operative factor such as to constitute a proscribed reason, or whether it was an operative and immediate reason for the adverse action: Barclay at [127] per Gummow and Hayne JJ; Storey v The Monitoring Centre Pty Ltd & Ors [2015] FCCA 3310 at [128] per Judge Manousaridis. The proscribed reason does not have to be the sole reason for taking the adverse action, and a person is regarded as having taken adverse action for a particular reason if the reasons for the action include that reason: FW Act, s.361.
  2. In Barclay the High Court said:
    1. the task of a court in a proceeding alleging a contravention by reason of adverse action “... is to determine, on the balance of probabilities, why the employer took adverse action against the employee, and to ask whether it was for a prohibited reason or reasons which included a prohibited reason ...”: Barclay at [5] per French CJ and Crennan J;
    2. adverse action will have been found to have been taken if the prohibited reason, or reasons including the prohibited reason, for the action was a “substantial and operative reason” for the employer taking adverse action against the employee: Barclay at [104] per Gummow and Hayne JJ;
    1. the test is whether adverse action has been taken because of a prohibited reason: Barclay at [129] per Gummow and Hayne JJ; and
    1. “[e]xamining whether a particular reason was an operative or immediate reason for an action calls for an inquiry into the mental processes of the person responsible for that action”: Barclay at [140] per Heydon J.
  3. The use of the word “because” in s.340(1) of the FW Act requires that a causal link be established between the adverse action complained of and the matters referred to in s.340 of the FW Act: Russell v Institution of Engineers Australia T/A Engineers Australia [2013] FCA 1250 (“Russell”) at [60] per Foster J. In Russell at [63] per Foster J the Federal Court observed that it was sufficient if the prohibited reason is one of several reasons for the taking of the action, but the prohibited reason “must have operated as a substantial and operative factor in the taking of the adverse action”.
  4. This Court in Maslen v Core Drilling Services Pty Ltd & Anor [2013] FCCA 460 at [17] per Judge Lucev in relation to the approach adopted in Barclay said that it suggested that:
  5. In Barclay the High Court also observed that the purpose of s.361 of the FW Act was to place on the defendant employer the onus of proving that which lies peculiarly within the employer’s own knowledge: Barclay at [50] per French CJ and Crennan J, at [86] per Gummow and Hayne JJ, and at [149] per Heydon J, all adopting what was said in General Motors-Holdens Pty Ltd v Bowling (1976) 51 ALJR 235; (1976) 12 ALR 605 at 617 per Mason J.
  6. As has been observed by both the High Court and the Federal Court it is not a breach of s.340 of the FW Act if adverse action is taken for a reason whose underlying facts coincide with the existence or exercise of a workplace right so long as the adverse action is not taken because of the existence or exercise of the workplace right: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; (2014) 253 CLR 243; (2014) 88 ALJR 980; (2014) 245 IR 354; (2014) 314 ALR 1; (2014) 66 AILR 102-268 at [20] per French CJ and Kiefel J; Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76; (2015) 231 FCR 150; (2015) 250 IR 422 at [32] per Jessup J.

“Threatening to take action”

  1. In Construction, Forestry, Mining and Energy Union v Victoria [2013] FCA 445; (2013) 302 ALR 1 (“CMFEU v Victoria”) at [219]-[232] per Bromberg J the Federal Court discussed at length how the Courts have construed the phrase “threatening to take action” and said as follows:
  2. Although CFMEU v Victoria was the subject of a successful appeal in Victoria v Construction, Forestry, Mining and Energy Union [2013] FCAFC 160; (2013) 218 FCR 172; (2013) 239 IR 441 that appeal did not touch upon the Federal Court’s observations at first instance in CMFEU v Victoria concerning the meaning of the phrase “threatening to take action”.
  3. It is not necessary for the Court to further summarise the views of each authority referred to by Bromberg J, it suffices to extract from the various authorities referred to in CMFEU v Victoria, and the remarks of Bromberg J himself, the following principles when considering the phrase “threatening to take action” in s.342(2)(a) of the FW Act:
    1. “threaten” is equivalent to the words “express an intention to” or “says he will”: Gietzelt v Craig-Williams Pty Ltd (No 1) (1959) 1 FLR 456 at 459 per Spicer CJ; Community and Public Sector Union v Telstra Corporation Limited [2000] FCA 872; (2000) 101 FCR 45 (“CPSU”) at [15]-[16] per Finkelstein J;
    2. a particular motive or purpose is not a requisite element in establishing that a person had threatened another, nor will it be necessary that there be some form of injurious intent or malicious purpose: CMFEU v Victoria at [221]-[222] per Bromberg J;
    1. the term “threatened” requires a communication of a threat, and in the context of s.342 of the FW Act, threatening to take action in relation to the matters set out in the table at s.342(1) of the FW Act identifies the harm which the threat must communicate. In CMFEU v Victoria at [222] per Bromberg J provided the following example:
      • ... all other requirements being satisfied, the communication by an employer of an intention to dismiss an employee because an employee intends to join a union will be sufficient to constitute threatening to take action of the kind specified by item 1 of s 342(1).
    1. it is not necessary under s.342(2)(a) of the FW Act that the threat should be communicated to the person threatened, particularly where the provision does not read “An employer shall not threaten an employee with dismissal”, rather it reads “An employer shall not threaten to dismiss an employee”: Gietzelt v Craig-Williams Pty Ltd (No 2) (1959) 1 FLR 465 at 467-468 per Dunphy J; CMFEU v Victoria at [223] per Bromberg J. However, a confidential communication between a director and secretary may not amount to a threat, what must be considered is if it is intended or likely to be communicated to the person: CPSU at [15] per Finkelstein J;
    2. information of possible adverse consequences if various conditions are not met will not necessarily be considered a threat, and to avoid being considered a ‘threat’ such information must not be riddled with “fairly inflammatory and intimidatory comments,” be “intended to inspire or instil fear in the employees” and be “comprised far more than the benign communication of information”: Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Limited (No 2) [2017] FCA 1046; (2017) 69 AILR 102-860 (“Gasparini”) at [269] per Wigney J; and
    3. where the action has the capacity to alter the behaviour of the person threatened and deny the rights which s.340 of the FW Act seeks to protect it need not matter if the threat is hollow threat; and a threat made can predate the existence of the workplace right particularly where it is a prospective entitlement to the benefit of a FW Act s.340 workplace right that is reason for the ongoing threat: CMFEU v Victoria at [229] per Bromberg J.
  4. In CMFEU v Victoria at [232] per Bromberg J the Federal Court said:

Consideration – was there adverse action for a prohibited reason?

  1. In essence, Mr Zehnder makes four principal allegations of adverse action, as follows:
    1. that on 19 December 2014 Sell Lease Property attempted to constructively dismiss him after he made an inquiry as to whether an email from Mr Quinn of 9 December 2014 in which he was offered a casual contract because he was on a part-time contract not a commission only contract;
    2. that on 22 January 2015 Sell Lease Property threatened to terminate Mr Zehnder’s employment if he did not sign a new part-time contract, and that this followed complaints Mr Zehnder had made about a proposed new part-time contract, including as to the rates of pay therein;
    1. that on 31 January 2015 Mr Zehnder’s role was made redundant by Sell Lease Property because he had previously raised concerns about his roster and his entitlements under the Award: Zehnder January 2016 Affidavit at [28]; and
    1. that on 9 February 2015 Sell Lease Property dismissed Mr Zehnder on the grounds of redundancy because of the concerns Mr Zehnder raised in relation to his roster and entitlements under the Award, and because Sell Lease Property did not want to pay him wages and entitlements under the Award: Zehnder January 2016 Affidavit at [28].

Constructive dismissal – 19 December 2014

  1. Mr Zehnder alleges that Sell Lease Property took adverse action against him within the meaning of s.342(1) of the FW Act by threatening to injure him in his employment or altering his position to his prejudice on 19 December 2014 in contravention of s.340(1) of the FW Act because he had a workplace right, and exercised a workplace right, under s.341 of the FW Act, namely the right to minimum weekly wages under the Award, and the right to complaint or inquire in relation to his employment.
  2. In Western Excavating (ECC) Ltd v Sharp [1977] EWCA Civ 2; [1978] QB 761 (“Western Excavating”) at 769 per Lord Denning MR, the Master of the Rolls described the basis of constructive dismissal as follows:
  3. In Spencer v Dowling [1996] VSC 51; [1997] 2 VR 127 (“Spencer”) at 160 per Hayne JA it was said:
  4. The conduct which may constitute constructive dismissal was further described in Thomson v Orica Australia Pty Ltd [2002] FCA 939; (2002) 116 IR 186 (“Orica Australia”) at [141] per Allsop J as follows:
  5. The statements concerning the relationship of trust and confidence made in Orica Australia must now be treated warily. In Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222 (“Celand”) at [61] Logan J cautioned as follows:
  6. In Celand at [64] per Logan J the Federal Court also observed that:
  7. The Explanatory Memorandum to the Fair Work Bill 2009 (Cth) at para.[1530] noted s.386(1)(b) of the FW Act (which defines “dismissal” for the purposes of the unfair dismissal jurisdiction of the Fair Work Commission) was intended to reflect the common law concepts of constructive dismissal, specifically that a constructive dismissal occurs where:
    1. the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or
    2. the employee resigns in response to conduct by the employer which gives him or her no reasonable choice but to resign.
  8. In Cheng v Western Pursuits Trust (t/as Vauxhall Inn) [2016] FCCA 3275 (“Cheng”) at [23]-[26] per Judge Driver this Court referred to the Fair Work Bill 2009 Explanatory Memorandum and applied the two “criterion” to the facts in that case and proceeded to find constructive dismissal had not been established.
  9. In light of the authorities the Court, in determining if Mr Zehnder was constructively dismissed or whether Sell Lease Property threatened to constructively dismiss him, the Court has considered:
    1. if he was effectively forced to resign by Sell Lease Property in the face of a threatened or impending dismissal, or whether there was a long running or extreme course of conduct that forced him to resign as a response to the conduct, such being the only reasonable choice: Cheng at [26] per Judge Driver;
    2. the extent to which the things said by Sell Lease Property can reasonably be considered statements of concluded intentions to no longer be bound by the contract: Orica Australia at [141] per Allsop J; and
    1. if, when viewed in context, the background of the employment relationship as a whole, the course of conduct to indicate an intention to no longer be bound and Mr Zehnder’s resignation was a “probable result” of the behaviour: Sagona v R & C Piccoli Investments Pty Ltd & Ors [2014] FCCA 875 at [208] per Judge Whelan.
  10. Mr Zehnder’s case in relation to constructive dismissal falls at the first hurdle for he never resigned from his employment with Sell Lease Property, and therefore lost the right to treat himself as discharged from the Original Contract: Western Excavating at 769 per Lord Denning MR; Orica Australia at [141] per Allsop J: TD2 at 104. Further, the information which was conveyed to Mr Zehnder was conveyed in a neutral, non-inflammatory, non-intimidatory and benign manner, and was coupled with an invitation to endeavour to resolve the particular issue: Gasparini at [269] per Wigney J, and in circumstances where another position was offered to Mr Zehnder, a fact not in dispute, the Court does not consider that there was an attempt to constructively dismiss Mr Zehnder from his employment at Sell Lease Property. The events which took place at the meeting on 19 December 2014 do not constitute an attempted or threatened constructive dismissal: what there was, in circumstances where Sell Lease Property was looking to implement new Award compliant contractual arrangements with its employees, was an open and frank discussion about the options which were available both to Sell Lease Property and to Mr Zehnder. The mere fact that Sell Lease Property was offering Mr Zehnder ongoing employment, albeit of a different status, is sufficient to warrant the rejection of any suggestion that Sell Lease Property was endeavouring to terminate or repudiate the employment contract between it and Mr Zehnder.
  11. It is also plain that the reason for the offer of a casual contract was not because Mr Zehnder had made any complaints concerning his terms and conditions of employment, and in particular his right to minimum weekly wages, but rather as a consequence of the decision then made by Sell Lease Property to restructure the basis on which all of its employees were employed to be commission only or casual employees, with the casual contracts of employment offered to those who did not meet the Award requirements to be commission only employees.
  12. In relation to Mr Zehnder’s contract there was no concluded view reached, or put, and no sense in which Sell Lease Property put, or attempted to put, Mr Zehnder in a position where he had to, or was entitled to, leave his employment at once: Western Excavating at 769 per Lord Denning MR. There was, at the 19 December meeting, no, and no attempt at, repudiatory conduct by Sell Lease Property, and hence no, and no attempted, constructive dismissal: Spencer at 160 per Hayne JA. That this was the case is reinforced by the subsequent conduct of the parties: Mr Zehnder never resigned in the face of any conduct by Sell Lease Property, repudiatory or otherwise, and after the 19 December 2014 there were a series of negotiations which ultimately led to Mr Zehnder entering into the Part Time Contract. By 31 December 2014 “things were good”: TD1 at 21. There was at no stage any conduct which could be characterised as either repudiatory of the Original Contract, or which warranted a conclusion that Mr Zehnder was constructively dismissed, or that there was any attempt at repudiation or constructive dismissal.
  13. In all of the above circumstances the Court is of the view that:
    1. the action taken on 19 December 2014 was not adverse action; and
    2. the action taken (even if it be adverse action which the Court does not consider it to be) was not taken by reason of Mr Zehnder having, or exercising, or seeking to exercise a workplace right.
  14. The complaint with respect to constructive dismissal or threatened constructive dismissal arising from the meeting on 19 December 2014 must therefore fail.

Threatened termination – 22 January 2015

  1. Mr Zehnder asserts that Mr Quinn threatened to terminate his employment on 22 January 2015 if Mr Zehnder did not sign the then proposed part-time contract. Mr Zehnder says that the threat was made following complaints he had made in relation to the proposed part-time contract of employment, including as to the rate of pay, and that he subsequently went on to sign the Part Time Contract on 23 January 2015: Zehnder October 2015 Affidavit at Annexure L, but which he asserts was less favourable to him financially than his previous contract, and that he did so because he feared he would have his employment terminated as threatened.
  2. There is no threat in the sense intended by s.342(2)(a) of the FW Act in Mr Quinn’s reply. What Mr Quinn’s reply does is point out what Sell Lease Property had been told by its lawyers, and indicates that it was possible that the employment of Mr Zehnder might have to be terminated if a new contract could not be entered into, and the basis for that view as conveyed by the lawyers to Sell Lease Property, and an invitation to work through the issue. There is no threat in the relevant sense, but rather the setting out of information, including the options perceived to be available, and an invitation to try to work through the issue.
  3. It is also not evident to the Court that the conduct of Mr Quinn in sending the email containing the reference to termination of employment (in the context of that being part of the advice from lawyers retained by Sell Lease Property) arises from the exercise of a workplace right by Mr Zehnder. There is no doubt that Mr Zehnder raised issues in relation to workplace rights such as entitlements, and complained concerning other provisions of the proposed part-time contract. But nothing that Mr Zehnder complained about relates to, or could alter what was said by Mr Quinn in the 22 January 2015 email, that advice, and in particular the reference to termination of employment, simply reflecting what Sell Lease Property had been told by its lawyers, and pointing to what Sell Lease Property perceived to be a possible outcome if Mr Zehnder did not sign the proposed part-time contract, but inviting, before anything was done, discussions to work through that issue.
  4. The mere fact that termination of employment was considered to be one of possibly only two options in the circumstances, and that Mr Zehnder had been invited to discuss the issue, does not constitute adverse action or the threat of adverse action, and even if it did, it would still not arise from the exercise of a workplace right by Mr Zehnder, as the invitation to discuss those matters did not emanate from the complaints that Mr Zehnder made about employment matters, and in that regard, critically, the evidence did not disclose that Mr Quinn as the decision-maker made the reference to termination of employment as a consequence of the exercise of any workplace right by Mr Zehnder.
  5. In all the above circumstances, the complaint with respect to threatened termination of employment on 22 January 2015 must fail.

Notification of possible redundancy – 31 January 2015, and dismissal on the grounds of redundancy – 9 February 2015

  1. It is convenient for the Court to deal with the alleged contraventions by way of adverse action in relation to the notification of possible redundancy on 31 January 2015 and the dismissal on the grounds of redundancy on 9 February 2015 together.
  2. Mr Zehnder alleges that Sell Lease Property took adverse action by notifying him of the possible redundancy and making him redundant by injuring him in his employment or altering his position to his prejudice in contravention of s.340(1) of the FW Act because he had a workplace right, or exercised a workplace right, namely the right to minimum weekly wages under the Award and the right to complain or inquire in relation to his employment.
  3. Mr Zehnder also alleges that Sell Lease Property took adverse action against him by injuring him in his employment or altering his position to his prejudice or dismissing him on 9 February 2015 because he had a workplace right and exercised a workplace right, namely the right to wages and entitlements under the Award and the right to complain or inquire in relation to his employment.
  4. Mr Zehnder says that in sending him the 31 January 2015 letter advising that Sell Lease Property had made a decision to make all part-time sales representatives’ positions redundant, and that unless they could find another position for Mr Zehnder the likely consequence was that his employment would be terminated, that this followed on from a complaint he had made the day before in which he had emailed Mr Quinn and told him that at his scheduled work performance review meeting he would be outlining his issues and concerns with the roster, targets and related matters, and that Mr Zehnder felt that he was being bullied because he had a right to be paid minimum weekly wages.
  5. In relation to both the notification of possible redundancy and the dismissal on the grounds of redundancy Sell Lease Property admits sending the notification and dismissing Mr Zehnder, it says on the grounds of redundancy, but denies that it took unlawful adverse action against him. Sell Lease Property contends that the actions it took in this regard were not related to any exercise or proposed exercise of a workplace right by Mr Zehnder, but rather because it wished to restructure its contracts of employment, and consequently its workforce, to ensure that those contracts were compliant with the Award, and, ultimately, in so doing decided not to have part-time employees covered by the Award because of the administrative and management burden imposed.
  6. Mr Zehnder’s submissions on the redundancy issues assert that:
    1. Mr Quinn’s evidence was that:
      1. Sell Lease Property had made the decision to make all part-time positions redundant;
      2. Mr Zehnder did not meet the requirements for a commission only contract; and
      3. Mr Zehnder had declined to sign a casual contract;
    2. Mr Zehnder says he was not offered a casual contract at any time from 31 January 2015 when the decision was made to make all part-time sales representatives’ positions redundant to 9 February 2015 when he was given notice of immediate termination of employment;
    1. he says that he was offered a full-time commission only contract during that period when he made inquiries about redeployment opportunities, and says that Mr Heathcote, Sell Lease Property’s lawyer, said to him in an email on 4 February 2015 that “... there are vacancies for full-time commission only sales representatives. Do you have any interest in a role like that?”;
    1. Mr Quinn knew that Mr Zehnder could not be redeployed into a position on a commission only contract of employment, and for that reason Mr Quinn did not contact Mr Zehnder on 31 January 2015, as he did with two other sales representatives who were redeployed into positions on commission only contracts of employment;
    2. the other sales representative who had her employment terminated after the part-time positions were abolished was Ms Eaton who had also made a complaint to Sell Lease Property in relation to her employment on 30 January 2015, the day before the advice of possible redundancies was issued (as to which see Eaton (No 2));
    3. the two part-time sales representatives who were redeployed were a Mr Rob Beka and Ms Alean Eng;
    4. Mr Quinn was aware that Mr Beka and Ms Eng both met the preconditions for a commission only contract of employment as indicated on Mr Quinn’s spreadsheet;
    5. after the major change letter had been sent on 31 January 2015 advising of possible redundancies Mr Quinn had discussions with Mr Beka and Ms Eng, who met the qualifying requirements for commission only contracts of employment and agreed to redeploy them on commission only contracts of employment because they met the criteria to be put on those contracts of employment;
    6. Sell Lease Property manufactured his redundancy as a means to terminate both his employment and Ms Eaton’s employment because it did not want to pay the minimum weekly wages and entitlements under the Award and because they had both made complaints in relation to their employment the day before receiving the redundancy letter;
    7. there are similarities between his case and National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451 (“RMIT”) in which the Federal Court found that a professor’s redundancy was a sham because RMIT effectively made use of the redundancy process to dismiss the professor at least in part because she had exercised her workplace rights by making complaints; and
    8. in RMIT the Federal Court found there was no contemporaneous record of the decision-maker’s reasons, the redundancy was not established by a rigorous process, and there was no evidence of any objectively defendable selection criteria for selecting the position for redundancy, and Mr Zehnder believes this to be the same in his case.
  7. In relation to Mr Zehnder’s submission the Court makes the following observations:
    1. read in context, Mr Quinn’s statement that the casual contract which Mr Quinn asserts was declined to be signed by Mr Zehnder is the casual contract that Mr Zehnder declined to sign in December 2015, and Mr Quinn does not suggest that Mr Zehnder declined to sign a casual contract at any time on or after 31 January 2015, but it remains the case that Mr Zehnder did refuse to enter into a casual contract when it was offered to him by Sell Lease Property;
    2. there is no way in which the asking of a question by Sell Lease Property’s lawyers as to whether Mr Zehnder had any interest in a full-time commission only contract can be characterised as an offer of employment by Sell Lease Property (even if Mr Heathcote had had authority or instructions to make such an offer, which he did not: TD2 at 90), as opposed to an invitation to express an interest, and even if it was intended to be an offer of employment, it would appear that because Mr Zehnder did not meet the Award requirements for a commission only contract of employment such a contract could never have been entered into in any event, that Mr Zehnder recognised this, and declined to entertain the invitation on the basis that any such contract would be illegal;
    1. in any event, the Court accepts the evidence of Mr Quinn that no instructions were given to Sell Lease Property’s lawyers to make offers of employment in relation to commission only contracts: TD2 at 90, and that evidence must be viewed in the context of the finding now made by the Court that what was put was an invitation to express interest and not an offer of employment in any event: see [129(b)] above;
    1. it is also plain that Sell Lease Property (through Mr Quinn) had no intention of offering Mr Zehnder a full-time commission only contract as Mr Quinn was aware that Mr Zehnder did not meet the relevant Award requirements for such a position;
    2. the fact that Mr Quinn knew prior to making a decision to abolish the part-time sales representatives’ positions that Mr Beka and Ms Eng met the requirements for a full-time commission only contract (which he did: TD2 at 81), is irrelevant to whether or not Mr Zehnder was to be made redundant given (as is explained further below) Sell Lease Property’s rationale for making the part-time positions redundant. Mr Beka and Ms Eng met the criteria for a full-time commission only contract and were therefore offered positions on that basis, no more and no less. To extrapolate from those facts that Mr Zehnder’s redundancy was manufactured is illogical. Mr Beka and Ms Eng were simply two people who met the relevant criteria, and were offered positions accordingly. It was not unlawful adverse action in relation to Mr Zehnder’s employment for Sell Lease Property to offer commission only contracts to two employees who met the relevant Award requirements in relation thereto;
    3. the fact that Mr Quinn already knew that Mr Beka and Ms Eng met the criteria for full-time commission only contracts of employment is not surprising in light of the work put into Mr Quinn’s spreadsheet, and nor does that fact support any suggestion that the redundancies for Mr Zehnder and Ms Eaton were manufactured or that Mr Zehnder was the subject of unlawful adverse action; and
    4. RMIT is not a case which is comparable to the present one, and is distinguishable on a number of bases. RMIT concerned a major organisation, a tertiary institution, with a complex organisational structure and highly prescriptive industrial instruments. Thus, other than at the most general level, the factual matrix in RMIT is far more complex, and is distinguishable because of that complexity, from this case.
  8. Clause 8.1 of the Award requires the employer to notify major workplace chance (which includes redundancy or proposed redundancy) and to discuss that change with employees affected, and to do so as early as practicable after a definite decision has been made by the employer to make an employee redundant.
  9. In this case once a decision had been made to make the part-time employees redundant Sell Lease Property wrote to the employees indicating what the proposed change was and inviting them to consult with Sell Lease Property in relation to those changes, and any possible termination of employment by way of redundancy. The fact that it took a day or two after the decision was apparently made for it to be conveyed to the employees is hardly surprising: TD2 at 85. This was a relatively small business with a very flat management structure and the Court is prepared to infer that it was probably not practicable for such a business to prepare and send letters instantly once the decision had been made, but rather that that process would take a day or two, and that in the circumstances that very short delay is irrelevant to a proper consideration of whether any adverse action was taken by Sell Lease Property against Mr Zehnder.
  10. It is axiomatic that if an employer is to properly notify major workplace change, including proposed redundancy, and to properly discuss that change with the employees affected, the consequence of any proposed redundancy, that is, up to and including termination of employment, must be properly set forth by the employer. That is what Sell Lease Property did on this occasion, in compliance with the Award. The sending of the 31 January 2015 letter to Mr Zehnder was an act of compliance with cl.8.1 of the Award. As such, it was not adverse action: Celand at [64] per Logan J. For reasons set out further below the reason for the sending of the 31 January 2015 letter was not one which was predicated upon the exercise of a workplace right or proposed exercise of a workplace right by Mr Zehnder.
  11. There is no doubt that adverse action was taken against Mr Zehnder by Sell Lease Property by reason of the termination of his employment with Sell Lease Property. Because adverse action was taken against Mr Zehnder, at least by way of the termination of employment, it is for Sell Lease Property to establish that it did not take that adverse action against Mr Zehnder by reason of a prohibited reason.
  12. There is a sequence of events that demonstrates that the termination of Mr Zehnder’s employment was not a termination for a prohibited reason. In November 2014 Sell Lease Property received legal advice that their existing commission only contracts for so-called rookies were not compliant with the Award. That advice was plainly correct, and Sell Lease Property determined to follow the advice that it was given, which was that new Award-compliant contracts ought to be prepared and entered into by (or at least be offered to) the employees concerned.
  13. Mr Quinn therefore determined to offer Mr Zehnder a casual contract, which at that stage was the only other form of new contract on offer by Sell Lease Property (that is in addition to the commission only contract of employment).
  14. The reason that only commission only and casual contracts were being offered was because other forms of contract and relevantly part-time contracts for wages under the Award, imposed, in the view of Mr Quinn, too great a management and administrative burden on Sell Lease Property. Mr Quinn explained those burdens: Quinn Affidavit at [15]. The explanation was understandable, and especially so in the context of a competitive industry such as real estate, and a company such as Sell Lease Property which has a small management team, which, on the evidence, plainly had no desire to spend any more time than was necessary on employment related issues.
  15. There was nothing in Sell Lease Property seeking to offer Mr Zehnder a casual contract which was caused by or predicated upon, or done for any reason, associated with any complaint by Mr Zehnder about his workplace rights, or the exercise or existence of a workplace right. Insofar as Mr Zehnder made a number of complaints during December 2014 and January 2015 there is no causal connection between any of those complaints made in relation to his employment (and whether as to a workplace right or not it is therefore unnecessary to determine) and any offer, or non-offer, of any form of employment contract offered to Mr Zehnder. When Mr Zehnder did not accept an offer of a casual contract with Sell Lease Property, Sell Lease Property had to determine what to do in those circumstances. Sell Lease Property determined, contrary to its previous position, to offer part-time contracts to those commission only employees who had not accepted casual employment. Mr Zehnder ultimately accepted the Part Time Contract, notwithstanding his apparent misgivings, but nothing in the offering of the Part Time Contract to Mr Zehnder was based upon the exercise of his workplace rights, or any attempt to exercise a workplace right. Rather, at or about the same time as Mr Zehnder ultimately accepted the Part Time Contract (which was only offered because he had declined a casual contract) Mr Quinn was actively reconsidering the whole question of part-time contracts, and Sell Lease Property again determined that it would not offer part-time contracts, and did not want part-time employees: Quinn Affidavit at [37]-[40] set out at [79] above; TD2 at 77-79. At that time Mr Zehnder had either just accepted the offer of a part-time contract, or was already, as a consequence of acceptance of the Part Time Contract, a part-time employee of Sell Lease Property. The decision to subsequently make those persons on part-time contracts redundant was, on the evidence, based, as it was previously, on management and administrative considerations, and had nothing to do with any complaint made by, or conduct of, Mr Zehnder in relation to his workplace rights. Other part-time positions were to be made redundant as well, and on the same basis, and that reinforces the fact that Mr Zehnder’s complaints or conduct were not a factor in making the part-time employees redundant.
  16. The fact that some of those employees who were advised that they might be made redundant, namely Mr Beka and Ms Eng, met the requirements for appointment to new commission only contracts which were Award-compliant (which the old commission only contracts were not) further reinforces the fact that Sell Lease Property’s decision to make employees redundant was not based on the exercise of any workplace right, or the existence of any workplace right, for any particular employee.
  17. Merely because Mr Zehnder made certain complaints in relation to his conditions of employment prior to his termination does not establish adverse action for a prohibited reason. The suggestion that the notification of redundancy was a response to Mr Zehnder’s complaints made in the days leading up to that notification, that is that there was an action by Mr Zehnder and a reaction by Sell Lease Property, is at odds with the history of the matter which demonstrates that the question of how to deal with non-commission only contracts was the subject of ongoing consideration by Sell Lease Property during November and December 2014 and January 2015, and which shows Sell Lease Property, primarily through Mr Quinn, grappling with the issue of casual and part-time contracts. To suggest, as Mr Zehnder seems to do, that the notification of change letter of 31 January 2015 was issued the day after, and in response to, complaints that he had made the day previously, is mere assertion, and is unsupported by any evidence, and is not the subject of any evidence upon which the Court could rationally base an inference that Mr Zehnder’s assertion was correct. Indeed, there is the unimpeached evidence of Mr Quinn in this respect which demonstrates that the notification of change letter was not an immediate reaction to any action taken by Mr Zehnder, either the day previously, or otherwise, or by way of any complaint or inquiry made by Mr Zehnder, or as a consequence of having to meet Award entitlements for Mr Zehnder.
  18. The evidence must demonstrate that there was adverse action for a prohibited reason. Although Mr Zehnder did complain, and although there was an engagement with those complaints by Sell Lease Property, Mr Quinn and Mr McKiernan, the Court is satisfied that Mr Quinn, who ultimately was the decision-maker in respect of the termination of Mr Zehnder’s employment, made the decision to terminate Mr Zehnder’s employment on the grounds of redundancy for reasons of management and administrative efficiency, and not because of any complaint in relation to, or exercise of, any workplace right by Mr Zehnder.
  19. The Court notes that Mr Quinn was tested in cross-examination in relation to these issues by Mr Zehnder, and that his evidence remained consistent in relation to the reasons for the actions taken by Sell Lease Property, and that those reasons did not include the taking of adverse action for any prohibited reason: see especially TD2 at 77-79.
  20. For the above reasons, the Court is satisfied that Sell Lease Property did not take adverse action against Mr Zehnder in relation to the notification of possible redundancy, and dismissal on the grounds of redundancy, on 31 January 2015 and 9 February 2015 respectively. Rather, the reason for the notification of possible redundancy, and dismissal on the grounds of redundancy, was one which was not prohibited, namely that Sell Lease Property wished to restructure its contracts to ensure that they were compliant with the Award, and, ultimately, to not have part-time employees because the administrative and management burden imposed was too significant for Sell Lease Property to properly manage. The alleged contraventions of s.340 of the FW Act in relation to the notification of possible redundancy and dismissal on the grounds of redundancy on 22 January 2015 and 9 February 2015 respectively are therefore not made out.

Other contraventions alleged

Failure to provide a Fair Work Information Statement

  1. Mr Zehnder alleged a contravention of s.125(1) of the FW Act by Sell Lease Property for failure to provide a Fair Work Information Statement before, or as soon as practicable after, Mr Zehnder started employment.
  2. Initially denied by Sell Lease Property, the contravention was admitted at hearing.
  3. In the circumstances, there will be a declaration that Sell Lease Property contravened s.44 of the FW Act by reason of a failure to provide the Fair Work Information Statement under s.125(1) of the FW Act.

Non-payment and under-payment of wages and entitlements

  1. Mr Zehnder has claimed unpaid wages and entitlements, including superannuation payments in the total sum of $8,466, which Sell Lease Property admits and says has now been paid to him, less applicable tax, and with the superannuation component being transferred to his nominated fund, although the payment and transfer is not the subject of any evidence.
  2. The sums admitted as not paid or underpaid by Sell Lease Property are set out in the Quinn Affidavit at [51] as follows:
  3. It is necessary to set out and make findings with respect to each of the contraventions alleged in respect of non-payment or underpayment of wages and entitlements by Mr Zehnder, including the amounts already allegedly paid.

Superannuation

$524

  1. Mr Zehnder alleges that Sell Lease Property contravened a term of the Award, namely cl.22.2, by failing to pay superannuation in the sum of $524 during the period 2 April 2014 to 4 January 2015.
  2. In the Amended Response Sell Lease Property admits the failure to pay this amount of superannuation during the above period.
  3. In the circumstances, there will be a declaration that Sell Lease Property contravened s.45 of the FW Act by reason of a failure to pay superannuation pursuant to cl.22.2 of the Award for the period from 2 April 2014 to 4 January 2015. There should also be an order that to the extent that it has not already been paid, Sell Lease Property pay to Mr Zehnder’s nominated superannuation fund the sum of $524 in respect of unpaid superannuation.

$284.32

  1. Mr Zehnder alleges that Sell Lease Property contravened s.45 of the FW Act by reason of a failure to pay superannuation of $284.32 pursuant to cl.22.2 of the Award on an amount of commission paid on 29 October 2014, and that Sell Lease Property only made the payment following a complaint to the Australian Taxation Office (“ATO”).
  2. Annexure B to the Zehnder October 2015 Affidavit contains a series of payslips (“Annexure B Payslips”) one of which is for a payment date of 29 October 2014. That payslip shows an amount of $284.32 as superannuation paid (and contains the number and account number for what is presumably Mr Zehnder’s nominated superannuation fund). The sum of $284.32 appears to have been taken out of a commission to be paid of $2,992.84.
  3. Clause 22.2 of the Award is headed “Employer contributions” and provides as follows:
  4. Clause 15.1 of the Award provides as follows:
  5. In relation to superannuation the relevant provision in the Original Contract is set out at [29] above and provides for the making of contributions, but critically provides that:
  6. It is not immediately apparent to what this provision of the Original Contract refers when it says “as indicated above”. There is nothing in the remuneration section of the Original Contract dealing with superannuation, and a perusal of the other prior provisions of the Original Contract does not reveal any reference to superannuation.
  7. It is plain enough that the commission payable on the sale of a property is paid to the employer, in this case Sell Lease Property. Clause 15.1 of the Award envisages circumstances where an employee entitled to a portion of the commission paid to the employer must have the method of calculation or any formula for calculating the amount of commission evidenced in a written agreement between the employer and the employee, here Sell Lease Property and Mr Zehnder.
  8. There is no evidence that the calculation or any formula for calculating the amount of commission is contained in the Original Contract.
  9. Neither party addressed themselves to any relevant provisions of any Commonwealth superannuation guarantee legislation which might apply in relation to this issue.
  10. Section 16 of the Superannuation Guarantee (Administration) Act 1992 (Cth) (“SGA Act”) provides as follows:
  11. The phrase “superannuation guarantee charge” means a charge imposed by the Superannuation Guarantee Charge Act 1992 (Cth) (“SGC Act”): SGA Act, s.6.
  12. The “superannuation guarantee shortfall” has the meaning given by s.17 of the SGA Act. Section 17 of the SGA Act provides as follows:
  13. The “individual superannuation guarantee shortfall” has the meaning given by s.19 of the SGA Act: SGA Act, s.6. Section 19(1) of the SGA Act provides as follows:
Total salary or wages paid
by the employer
to the employee for the quarter
Charge percentage for the employer
for the quarter
x ____________________
100

where:
charge percentage, for an employer for a quarter, means:
(a) the number specified in subsection (2) for the quarter (unless paragraph (b) applies); or
(b) if the number specified in subsection (2) for the quarter is reduced in respect of the employee by either or both sections 22 and 23—the number as reduced.
  1. Section 19(2) of the SGA Act prescribes the “charge percentage” for various years.
  2. For the purposes of s.19(1) of the SGA Act s.11(1)(a) of the SGA Act defines “salary or wages” to include “commission”.
  3. It appears from a perusal of the above sections of the SGA Act that the superannuation guarantee charge payable under the SGC Act is to be paid in addition to the commission paid to an employee, and not to be deducted from the commission paid to an employee.
  4. It is arguable that Mr Zehnder would therefore have been entitled to be paid the full amount of his commission as well as having his superannuation paid into his nominated superannuation fund. What appears to have occurred in this case is that the superannuation contribution has been deducted from Mr Zehnder’s and paid into Mr Zehnder’s nominated superannuation fund.
  5. On the face of the evidence (and there being no evidence to the contrary) the documents do, however, indicate that the superannuation has been paid, and in that respect there has been no contravention of s.45 of the FW Act. There has, however, arguably been an underpayment of commission, and to the extent that commission otherwise due and payable has been underpaid there may have been a breach of the Original Contract, in respect of which Mr Zehnder might be entitled to $775.42 for underpaid commission. Mr Zehnder made a general claim by way of alleged breach of contract for any amounts to which he might be entitled which were not made out as contraventions. This amount of arguably underpaid commission would fit within that category.
  6. The difficulty for the Court is that neither party addressed this issue in terms of the Court’s necessarily limited analysis set out at [161]-[169] above. In the circumstances, it would be appropriate to hear further from the parties before any final declarations or orders are made in relation to this aspect of Mr Zehnder’s claims.

$491.10

  1. Mr Zehnder alleges that Sell Lease Property contravened s.45 of the FW Act by reason of a failure to pay superannuation of $491.10 pursuant to cl.22.2 of the Award on an amount of commission paid on 24 December 2014, and that Sell Lease Property only made the payment following a complaint to the (“ATO”).
  2. For the same reasons as are set out at [161]-[169] above, it appears arguable that Mr Zehnder has been underpaid an amount of commission in the sum of $491.10, but that issue ought also be the subject of further submissions prior to any final declarations and orders being made: see [170] above.

Failure to pay minimum weekly rate of pay

2-8 February 2015

  1. Mr Zehnder alleges that Sell Lease Property contravened s.45 of the FW Act by paying him less than 1/38th of the minimum weekly rate of pay for his classification for each ordinary hour worked in the period 2 to 8 February 2015 (a period of eight hours) contrary to cl.10.3(b)(ii) of the Award, and that he was paid an hourly rate of $16.50 an hour rather than the Award rate of $17.88 an hour, for a total underpayment of $11.04.
  2. Sell Lease Property has not admitted the underpayment.
  3. It does not appear to be in dispute that the relevant hourly Award rate for Mr Zehnder at the time of the termination of his employment was $17.88 an hour, and that that rate applied during the week of 2 to 8 February 2015. The Annexure B Payslips indicate that for the 8 hours that Mr Zehnder worked in the pay period from 2 February 2015 to 15 February 2015 he was paid at the rate of $16.50 an hour. In the circumstances, Sell Lease Property contravened s.45 of the FW Act by paying Mr Zehnder $1.38 an hour less than the relevant minimum weekly rate of pay calculated on the basis of each ordinary hour worked contrary to cl.10.3(b)(ii) of the Award, and there will be a declaration accordingly, as well as an order for Sell Lease Property to pay to Mr Zehnder the amount of $11.04.

Payment in lieu of notice

  1. Mr Zehnder alleges that Sell Lease Property contravened s.45 of the FW Act by paying him less than 1/38th of the minimum weekly rate of pay for his classification for the payment of one weeks’ wages in lieu of notice (being a period of eight hours) contrary to cl.10.3(b)(ii) of the Award, and that he was paid at the hourly rate of $16.50 rather than the Award rate of $17.88 for the period of notice.
  2. Sell Lease Property has not admitted the underpayment.
  3. For the same reason as are set out at [175] and [177] above there has been an underpayment of the ordinary hourly rate for the payment of Mr Zehnder’s one week’s wages in lieu of notice. It follows that there should be a declaration accordingly, and an order for the payment of the underpayment by Sell Lease Property to Mr Zehnder in the amount of $11.04.

Work-related expenses

  1. Mr Zehnder alleges that Sell Lease Property contravened s.45 of the FW Act by failing to reimburse him for work-related expenses incurred at its request pursuant to cl.19.1 of the Award.
  2. Sell Lease Property admits an underpayment of $960 as set out at [51] of the Quinn Affidavit cited above: see [147] above.
  3. In his Further Amended Application Mr Zehnder claims an additional $5,434 in work-related expenses. Those work-related expenses relate to a laptop computer that Mr Zehnder says he was “required” to purchase, which he says Sell Lease Property (he does not say who individually) “told me ... I would need”: Zehnder January 2016 Affidavit at [32], and printing or photocopying, training, radio advertising and marketing costs: Zehnder January 2016 Affidavit at [33]. Mr Zehnder refers to Annexure C of the Zehnder January 2016 Affidavit as being a copy of an email reminding him to bring his new laptop in to be set up, that being a reference to one sentence in an email concerning profile marketing, and being the final sentence in that email, which otherwise does not refer to any requirement to purchase anything, and which says as follows:
  4. Sell Lease Property says that:
    1. it required employees to pay for certain expenses including company photographs and business cards: see Original Contract at page 6;
    2. it offered additional marketing products and services to sales representatives to assist with property sales, but if they utilised those services they were required to pay for them: McKiernan Affidavit at [14]; and
    1. Sell Lease Property concedes that in accordance with requests made by Sell Lease Property Mr Zehnder incurred expenses of $960 in relation to work-related marketing: Quinn Affidavit at [51(f)].
  5. Clause 19.1 of the Award deals with the reimbursement of work-related expenses and provides that any employee “who incurs any work-related expenses at the request of the employer will be reimbursed by the employer”.
  6. The relevant provision of the Contract provides that marketing related activities will only be implemented or produced by Sell Lease Property once full payment is received from the employee and it is the employee who is responsible for all expenses associated with the design, production and distribution of all marketing activities: Contract at page 6.
  7. The evidence of Mr McKiernan was that, save for the $960 admitted, Sell Lease Property did not request Mr Zehnder to:
    1. buy a laptop computer: McKiernan Affidavit at [18]; or
    2. incur any additional work-related expenses: McKiernan Affidavit at [10], [11] and [14]; and
    1. that it was Mr Zehnder’s decision to incur those costs: McKiernan Affidavit at [10], [11] and [14].
  8. Mr McKiernan does not dispute that he would have explained to Mr Zehnder “the utility of having a laptop in order to work in a mobile way as a sales representative and the fact that SLP doesn’t provide computers in the office, but I never would have requested that he purchase a laptop – it is not a requirement of employment with SLP that a sales representative has a laptop”: McKiernan Affidavit at [18]. Mr McKiernan reinforced that evidence in strong terms at TD2 at 99-100 where he said that all of Sell Lease Property’s software was accessible from any computer which was online, that it was not a requirement of a sales representative to have a computer, and that they could function without one, and that there were “a lot of people” at Sell Lease Property who did not have laptops: TD2 at 100.
  9. There are difficulties with Mr Zehnder’s evidence. His evidence in relation to the purchase of the laptop is somewhat vague. It suffices to observe that there is a paucity of detail in Mr Zehnder’s evidence as to precisely who said that he was required to incur these expenses, when they said it, and what precisely they said. Furthermore, there is no documentary evidence of the purchase of a laptop or the amount paid for any such laptop. Insofar as there is a claim for the other work-related expenses of printing, photocopying, training, radio advertising and marketing, there is simply no evidence that these were requested by Sell Lease Property.
  10. It is fair to observe that the Court obtained the impression that Sell Lease Property was intended to be a money-making venture: a proposition which Mr Zehnder expressly put to Mr McKiernan in cross-examination: TD2 at 109, and with which Mr McKiernan did not disagree, and would not request the expenditure of money which it had to reimburse if that could be at all avoided. Indeed, the tenor of the Original Contract is to impose as much of this expense on the employee as possible. That lends some credence to the evidence led on behalf of Sell Lease Property that there was not a request to Mr Zehnder to incur expenditure on or in relation to the items claimed for work-related expenses.
  11. The Court accepts the evidence of Mr McKiernan that there was no request from Sell Lease Property for the purchase of a laptop or expenditure on marketing activities beyond the $960 for work-related expenses identified in the Quinn Affidavit at [51(f)].
  12. The Court does not consider that:
    1. there is sufficient evidence to satisfy it on the balance of probabilities that the evidence establishes that Mr Zehnder was requested (either expressly or impliedly) to purchase a laptop computer; and
    2. there is no sufficient evidence to enable it to conclude that other marketing costs claimed by Mr Zehnder, and not conceded by Sell Lease Property, were marketing costs that Sell Lease Property required Mr Zehnder to incur.
  13. In all of the above circumstances there should be a declaration that Sell Lease Property contravened s.45 of the FW Act by failing to pay marketing expenses to Mr Zehnder in the sum of $960 contrary to cl.19 of the Award. It follows that there should also be an order, to the extent that it has not already been paid, that Sell Lease Property pay to Mr Zehnder the sum of $960 in respect of the non-payment of marketing expenses.

Mobile telephone expenses

  1. Mr Zehnder alleges that Sell Lease Property contravened s.45 of the FW Act by failing to cover the costs of his mobile telephone totalling $1,089 over the period 2 April 2014 to 22 February 2015 contrary to the terms of cl.18.6(d) of the Award.
  2. In its Amended Response Sell Lease Property admits the alleged contravention.
  3. There should therefore be a declaration that Sell Lease Property contravened s.45 of the FW Act by failing to pay Mr Zehnder’s mobile telephone expenses in the amount of $1,089 for the period 2 April 2014 to 22 February 2015 contrary to cl.18.6(d) of the Award. It follows that there should also be an order, to the extent that it has not already been paid, that Sell Lease Property pay to Mr Zehnder the sum of $1,089 in respect of the mobile telephone expenses.

Motor vehicle allowance

  1. Mr Zehnder alleges that Sell Lease Property has contravened s.45 of the FW Act by failing to pay him a motor vehicle allowance totalling $262 over the period 1 January 2015 to 22 February 2015 contrary to cl.18.1 of the Award.
  2. In its Amended Response Sell Lease Property admits to failing to pay the motor vehicle allowance in the sum of $225 for the above period.
  3. There is no evidence as to how the sums of $262 and $225 have been calculated. Clause 18.1 of the Award provides for a motor vehicle allowance calculated on the basis of various engine capacities for vehicles on the one hand under five years of age, and on the other hand over five years of age, and at a rate calculated by a standing charge plus a per kilometre amount. Clause 18.2 of the Award provides for an alternative: an allowance per kilometre for use of an employee’s vehicle in the course of employment up to a maximum of 400 kilometres per week. There is no evidence from either of the parties as to the age or engine capacity of Mr Zehnder’s vehicle, or the kilometres travelled by him during the relevant period. In the circumstances the claim for the $37 over and above the sum admitted by Sell Lease Property cannot be proven on the evidence and must fail. The Court notes that in any event the claim was made pursuant to cl.18.1 of the Award, and not cl.18.2 of the Award.
  4. There should be a declaration that Sell Lease Property contravened s.45 of the FW Act by failing to pay the motor vehicle allowance in the sum of $225 over the period 1 January 2015 to 22 February 2015 to Mr Zehnder contrary to cl.18.1 of the Award. There should also be an order that to the extent that it has not already been paid, Sell Lease Property pay to Mr Zehnder the sum of $225 in respect of the motor vehicle allowance.

Loading on accrued annual leave

  1. Mr Zehnder alleges that Sell Lease Property contravened s.45 of the FW Act by failing to pay him loading on his accrued annual leave on termination totalling $100 contrary to cl.25.4 of the Award.
  2. In its Amended Response Sell Lease Property admits the failure to pay loading on accrued annual leave of $100 upon termination. There should be a declaration that Sell Lease Property contravened s.45 of the FW Act by failing to pay loading on accrued annual leave to Mr Zehnder upon termination of employment contrary to cl.25.4 of the Award. There should also be an order that to the extent that it has not already been paid, Sell Lease Property pay to Mr Zehnder the sum of $100 in respect of loading on accrued annual leave upon termination of employment.

Method and frequency of payment

Wages

  1. Mr Zehnder alleges a contravention of s.323 of the FW Act by reason of Sell Lease Property failing to pay amounts payable, namely wages, in relation to the performance of his work both in full and at least monthly in the amount of $5,524 during the period 2 April 2014 to 4 January 2015.
  2. Sell Lease Property in its Amended Response admits the failure to pay $5,524 in wages for the above period. There should be a declaration that Sell Lease Property contravened s.323 of the FW Act by failing to pay, both in full and at least monthly, Mr Zehnder’s wages in the amount of $5,524 during the period 2 April 2014 to 4 January 2015. There should also be an order that to the extent that it has not already been paid, that Sell Lease Property pay to Mr Zehnder the sum of $5,524 in respect of wages.

Accrued annual leave entitlements upon termination

  1. Mr Zehnder alleges that Sell Lease Property contravened s.323 of the FW Act by underpaying him $44 in accrued annual leave entitlements upon termination because he was paid at an hourly rate of $16.50 rather than the Award rate of $17.88.
  2. In its Amended Response Sell Lease Property admits the underpayment of $44 in respect of accrued annual leave entitlements upon termination.
  3. There should be a declaration that Sell Lease Property contravened s.323 of the FW Act by failing to pay Mr Zehnder $44 in accrued annual leave entitlements upon termination. There should also be an order to the extent that it has not already been paid, that Sell Lease Property pay to Mr Zehnder the sum of $44 in respect of unpaid accrued annual leave entitlements upon termination.

Deduction upon termination for profile marketing expenses

  1. Mr Zehnder alleges that Sell Lease Property contravened s.323 of the FW Act by failing to pay the amount that was payable to him upon termination in full because of a deduction, which he says was not permitted, of an amount of $154.24 for profile marketing.
  2. Sell Lease Property has not admitted that it deducted an amount payable of $154.24 from Mr Zehnder’s final payment for profile marketing that was not permitted.
  3. Mr Zehnder’s evidence with respect to this claim is an assertion that he was unreasonably required by Sell Lease Property to spend part of an amount payable to him in relation to the performance of his work in contravention of s.325 of the FW Act: Zehnder January 2016 Affidavit at [36], and an assertion that he had an amount of $154.24 deducted from his final pay: Zehnder January 2016 Affidavit at [37].
  4. Section 325(1) and (2) of the FW Act provides as follows:
  5. Section 325(1A) of the FW Act is not relevant as it relates to a prospective employer. For the purposes of s.325(2) of the FW Act there are no regulations under the Fair Work Regulations 2009 (Cth) prescribing circumstances in which a requirement referred to in s.325(1) of the FW Act is not reasonable.
  6. The Annexure B Payslips do show a deduction of $154.24 from Mr Zehnder’s final payment. The annotation is “Other Post-Tax Deduction – PM Account Payment”. There was no evidence from Mr Zehnder as to what he understood that narration of the deduction to mean. In his submissions it is described as a profile marketing expense. But there is no evidence as to the nature of the expense for which the deduction was made. In the circumstances, it is simply not possible for this Court to determine whether Sell Lease Property required Mr Zehnder to spend an amount (which it subsequently deducted from his final payment) that was unreasonable in the circumstances: FW Act, s.325(1)(a), or was a payment directly or indirectly for the benefit of Sell Lease Property: FW Act, s.325(1)(b). In the circumstances, the claim for payment of the amount of $154.24 said to be deducted for profile marketing has not been made out.

Deduction of profile marketing expenses 29 October 2014

  1. Mr Zehnder alleges that Sell Lease Property contravened s.323 of the FW Act by failing to pay the full amount payable with respect to commission paid to him on 29 October 2014 because of an unpermitted deduction of $285.77 for profile marketing, in circumstances where the Original Contract did not provide for profile marketing expenses to be deducted from his commissions.
  2. Sell Lease Property has not admitted that it impermissibly deducted an amount of $285.77 from the amount payable to Mr Zehnder by way of commission on 29 October 2014 as profile marketing expenses.
  3. As with the deduction for alleged profile marketing expenses referred to at [206]-[211] above, there is no evidence as to the nature of the expense in relation to which the deduction was made, and the Annexure B Payslip for this deduction simply provide that it is an “Other Post-Tax Deduction”. In the circumstances, this claim must fail for the same reasons as the claim in respect of the amount of $154.24 set out above: see [211] above.

Deduction of profile marketing expenses 24 December 2014

  1. Mr Zehnder alleges that Sell Lease Property contravened s.323 of the FW Act by failing to pay amounts payable in full with respect to commission on 24 December 2014 by deducting an amount of $25 for profile marketing, and that the Original Contract did not provide for profile marketing expenses to be deducted from commissions payable.
  2. Sell Lease Property has not admitted that it deducted $25 from the amount of commission payable by way of profile marketing expenses on 24 December 2014.
  3. As with the deduction for alleged profile marketing expenses referred to at [206]-[211] above, there is no evidence as to the nature of the expense in relation to which the deduction was made, and the Annexure B Payslip for this deduction simply provide that it is an “Other Post-Tax Deduction”. In the circumstances, this claim must fail for the same reasons as the claim in respect of the amount of $154.24 set out above: see [211] above.

Deduction of superannuation on commission 29 October 2014

  1. Mr Zehnder alleges that Sell Lease Property contravened s.323 of the FW Act by failing to pay the full amount payable with respect to commission paid on 29 October 2014 because of a deduction of $284.32 for superannuation in circumstances where Mr Zehnder says that the commission formula in the Original Contract did not provide for superannuation to be deducted from commissions.
  2. Sell Lease Property has not admitted that it deducted an amount payable of $284.32 by way of superannuation from the commission payable to Mr Zehnder on 29 October 2014.
  3. This matter is inextricably intertwined with the matter referred to at [152]-[170] above, and for the same reasons must be the subject of further submissions before the making of final declarations and orders in relation thereto.

Deduction of superannuation from commission 24 December 2014

  1. Mr Zehnder alleges that Sell Lease Property contravened s.323 of the FW Act by failing to pay amounts payable in full with respect to commission paid on 24 December 2014 by deducting an amount of $491.10 for superannuation in circumstances where his Original Contract did not provide for superannuation to be deducted from commissions.
  2. Sell Lease Property has not admitted that it made a deduction of $491.10 from Mr Zehnder’s commission by way of superannuation on 24 December 2014 that was not permitted.
  3. This matter is inextricably intertwined with the matter referred to at [152]-[170] above, and for the same reasons must be the subject of further submissions before the making of final declarations and orders in relation thereto.

Payment in lieu of notice

  1. Mr Zehnder alleges that Sell Lease Property contravened s.323 of the FW Act by failing to pay an amount payable in full with respect to payment in lieu of notice upon termination pursuant to cl.15 of the Part Time Contract which he says required Sell Lease Property to give two weeks’ notice of termination, and that Sell Lease Property only paid him for one week (8 hours) instead of two weeks (16 hours) in lieu of notice upon termination.
  2. Sell Lease Property has not admitted that it failed to pay (or underpaid) Mr Zehnder an amount of $143.04 by way of an additional week’s payment in lieu of notice upon termination.
  3. Clause 15(1)(b) of the Part Time Contract provides for a notice period of “at least 2 weeks” to be given to Mr Zehnder, or payment in lieu thereof. The Annexure B Payslips make it clear that Mr Zehnder was only paid 8 hours in lieu of notice, that being his hours for one week. He was entitled to at least two weeks, and is therefore entitled to a further 8 hours payment. No claim was made for an amount over and above the 8 hours in reliance upon the phrase “at least 2 weeks” in cl.15(1)(b) of the Part Time Contract.
  4. In relation to the quantum payable for the additional week, the Zehnder March 2016 Affidavit at [91] claims an amount for breach of contract of $219.21 made up of unpaid wages of $143.04, motor vehicle allowance of $37.58, superannuation of $13.59 and a mobile phone allowance of $25. Mr Zehnder was entitled to not only his wages, but also those benefits resulting from the performance of the Part Time Contract, thus including relevant allowances: Robinson v Harman [1848] EngR 135; (1848) 1 Ex 850 at 855 per Parke B.
  5. The claim for unpaid wages of $143.04 is made out it being 8 hours at the relevant ordinary hour Award rate of $17.88. For reasons set out a [195]-[198] above the motor vehicle allowance claim cannot be made out. The claim for superannuation payment of $13.59 is made out, that being 9.5% of the unpaid wages of $143.04 (9.5% being the superannuation charge payable at that time: SGA Act, s.19). In relation to the mobile phone allowance, and in the absence of any relevant provision in the Original Contract or the Part Time Contract, there is no evidence to sustain a claim under cl.18.6(d) of the Award for payment of $25 as there is no evidence of the costs of ownership, network access, maintenance and payment of work-related accounts for the relevant telephone as required under cl.18.6(d) of the Award for the additional week.
  6. Having regard to the conclusions reached above Sell Lease Property failed to pay Mr Zehnder an amount of $156.63 for the additional week’s payment in lieu of notice, and there will be an order that Sell Lease Property pay to Mr Zehnder that amount.

Compensation claim

  1. The amounts Mr Zehnder claims for compensation in Form 2, Part H, at [8]) are:
    1. $323 for an amount that Mr Zehnder paid to re-advertise a property for sale after the termination of his employment with SLP that he had previously advertised while a sales representative with Sell Lease Property;
    2. $572 for a redundancy payment, notwithstanding that his employment was terminated before he had performed one year's continuous service;
    1. $2,808 for the cost of a bus stop advertising contract that he purchased while employed by Sell Lease Property; and
    1. non-economic loss for hurt, humiliation and distress.
  2. The Court deals with each of these claims for compensation below.

Re-advertisement of property

  1. There is no evidence, save mere assertion, to support the amount claimed as payment made for re-advertising a property for sale following the termination of Mr Zehnder’s employment in circumstances where he had previously advertised that property whilst a sales representative with Sell Lease Property. Not only is there no evidence to support the amount claimed, it is not apparent to the Court on what basis such an amount might be compensated. Mr Zehnder pointed to no provision under the Original Contract or the Part Time Contract which would have entitled him to such payment. Under the terms of the Original Contract the payment of marketing expenses effectively required the approval of Sell Lease Property before any such expenditure could be paid or reimbursed to an employee. There is no evidence of any such approval, express or implied, in relation to the claim for reimbursements of the expense of advertising this property which was later re-advertised after Mr Zehnder’s employment with Sell Lease Property was terminated. The Part Time Contract is silent on the payment of marketing expenses. Nor does the amount appear, on the evidence, to be a work-related expense for the purposes of cl.19 of the Award. There is no evidence of a request by Sell Lease Property that Mr Zehnder expend the claimed amount on the advertising. In the circumstances, this claim must fail.

Redundancy payment

  1. Mr Zehnder makes a claim for a sum of $572 said to be four weeks’ redundancy pay.
  2. Mr Zehnder admits in his Further Amended Application that he did not meet the minimum statutory service requirements to be eligible for redundancy pay. Mr Zehnder admits to only being employed with Sell Lease Property from 2 April 2014 to 9 February 2015, a period of just over 10 months.
  3. Sell Lease Property asserts that Mr Zehnder admits that he did not meet the minimum statutory service requirements to be eligible for a redundancy payment and that this claim must fail. Sell Lease Property denies that Mr Zehnder is entitled to any redundancy payment, and says he was not employed by Sell Lease Property for the minimum period required of 12 months.
  4. Clause 12 of the Award provides in cl.12.1 that redundancy pay “is provided for in the NES”, being the National Employment Standards, contained relevantly in relation to redundancy at s.119 of the FW Act of the FW Act: Award, cl.3.1.
  5. The entitlement to redundancy pay is set out in s.119 of the FW Act, and at s.119(2) Item 1 provides for a 4 week redundancy pay if an employee’s period of continuous service with the employer at the time of termination is at least 1 year but less than 2 years.
  6. Mr Zehnder does not meet the minimum period of continuous service required to qualify for a redundancy payment under s.119(2) of the FW Act and the claim to a redundancy payment must therefore fail.

Bus stop advertisement

  1. Mr Zehnder’s claim for the cost of a bus stop advertising contract that he purchased whilst employed by Sell Lease Property cannot succeed in the absence of any evidence as to the payment of the claimed amount save mere assertion. Further, and in any event, there is no evidence that this marketing expense was:
    1. approved for payment by Sell Lease Property pursuant to the terms of the Original Contract, and it is only such marketing expenses that are payable by Sell Lease Property under the Original Contract; or
    2. requested to be incurred as a work-related expense under cl.19 of the Award.
  2. In the circumstances, this claim must fail.

Hurt and humiliation

  1. Insofar as Mr Zehnder seeks damages for non-economic loss he did not put on any evidence which demonstrated a causal link between the alleged contraventions and any loss that he might have suffered. There is no evidence of the claimed hurt and humiliation, and no evidence of a medical or psychological kind sufficient to establish any hurt or humiliation by way of any illness or injury arising from the matters the subject of the claims in these proceedings, or otherwise, from the course of, and termination of, Mr Zehnder’s employment with Sell Lease Property. For the above reasons Mr Zehnder’s claim for non-economic loss for hurt and humiliation must fail.

Rosters

  1. Clause 8.2 of the Award requires consultation about changes to rosters or hours of work, and is in mandatory terms requiring the employer to consult with the employee about the proposed change. The employer is obliged to provide information about the roster change, and to invite the employee to give their views about the impact of the proposed change, and to give consideration to those views as to the proposed change. It is evident from the course of the email exchanges between Mr Zehnder and Mr Quinn during December 2014 and January 2015 that rosters were the subject of consideration, as well as in the course of discussions in meetings between Mr Quinn and Mr Zehnder in December 2014 and January 2015, and in particular the roster for the Part Time Contract: see TD2 at 87-88. In the circumstances, the claim that there was not consultation with respect to the rosters for the purposes of cl.8.2 of the Award must fail.

Inability to make a claim of bullying

  1. The claim that Mr Zehnder has been the subject of adverse action because he has been denied the exercise of a workplace right by reason of a sham redundancy cannot succeed in light of the Court’s finding that the redundancy was not adverse action, and not taken for a reason which was prohibited, and which on the facts as set out above: see [123]-[142] above, was for a genuine reason.

Inability to claim unfair dismissal

  1. The claim in relation to an inability to claim unfair dismissal was, like the bullying claim, based on the premise that the redundancy was a sham. For the same reasons as applied to the inability to make a claim of bullying set out at [243] above, this claim must also fail.

Accessorial liability

Mr Zehnder’s claims

  1. Mr Zehnder alleges that Mr Quinn was involved in each of the contraventions committed by Sell Lease Property in that he aided, abetted, counselled or procured Sell Lease Property’s contraventions and/or was by way of act or omission, directly or indirectly, knowingly concerned in or party to the contraventions.
  2. Mr Zehnder says that the evidence shows that Mr Quinn was:
    1. the CEO of Sell Lease Property;
    2. responsible for the day-to-day running of the business;
    1. aware that Mr Zehnder commenced employment with Sell Lease Property around March 2014;
    1. aware that Mr Zehnder was employed on a part time basis;
    2. aware that Mr Zehnder was a “rookie”;
    3. responsible for developing Mr Zehnder’s employment contracts;
    4. responsible for all the substantive decisions that were made in relation to Mr Zehnder’s employment;
    5. responsible for making Mr Zehnder’s position redundant;
    6. responsible for terminating Mr Zehnder’s employment;
    7. responsible for providing Mr Zehnder’s final payslip; and
    8. aware that Mr Zehnder had sought payment for wages alleged to be owed to Mr Zehnder.
  3. Mr Zehnder alleges that Mr MacEwan was involved in each of the contraventions committed by Sell Lease Property in that he aided, abetted, counselled or procured Sell Lease Property’s contraventions or in the alternative, was by way of act or omission, directly or indirectly, knowingly concerned in or party to the contraventions.
  4. Mr Zehnder says that the evidence shows that Mr MacEwan was:
    1. the sole director of Sell Lease Property;
    2. the company secretary of Sell Lease Property;
    1. the licensee and person in bona fide control of Sell Lease Property under the REBA Act;
    1. aware that Mr Zehnder commenced employment with Sell Lease Property around March 2014;
    2. signed Mr Zehnder’s offer of employment letter;
    3. signed Mr Zehnder’s Original Contract on behalf of Sell Lease Property;
    4. aware that Mr Quinn made the decision to make Mr Zehnder’s position redundant;
    5. aware that Mr Quinn made the decision to terminate Mr Zehnder’s employment;
    6. aware of Mr Zehnder’s allegations of bullying against Mr Quinn before his employment was terminated;
    7. aware that Mr Zehnder was seeking payment for outstanding wages and allowances before his employment was terminated;
    8. reckless; and
    1. wilfully blind, and in this regard submits that it has been held that wilful blindness suffices as “actual knowledge” for the purposes of accessorial liability: Fair Work Ombudsman v Liquid Fuel Pty Ltd & Ors [2015] FCCA 2694.

Position of Mr Quinn and Mr MacEwan

  1. In relation to accessorial liability Mr Quinn and Mr MacEwan say that:
    1. these claims should fail on the basis that the primary contraventions against Sell Lease Property have not been made out. In the case of Mr MacEwan he was not involved in the dismissal or any other incident of alleged contravention that could give rise to accessorial liability;
    2. as the claim in relation to the alleged contravention of s.340 of the FW Act cannot be established, there can be no accessorial liability, pursuant to s.550 of the FW Act, in respect of it; and
    1. Mr Zehnder has not pleaded any facts that demonstrate the involvement or knowledge of Mr MacEwan, in any of the contraventions alleged by Mr Zehnder. Although Mr MacEwan signed his employment documents on behalf of Sell Lease Property there are no alleged contraventions relating to the terms of these documents. Further, Mr MacEwan has given evidence that he was not involved in any way in the decision to abolish part-time roles or terminating Mr Zehnder’s employment: MacEwan Affidavit at [15]-[18] and [21].

Legal principles

  1. Section 550 of the FW Act provides as follows:
  2. Section 550 of the FW Act provides for accessorial liability for a breach of civil remedy provisions. Sections 340 and 352 of the FW Act are civil remedy provisions. Section 550 of the FW Act provides that involvement in a contravention of the FW Act shall be treated in the same way as an actual contravention.
  3. The relevant principle in federal civil litigation in relation to legislative provisions such as s.550 of the FW Act is derived from the High Court’s judgment in Yorke & Anor v Lucas [1985] HCA 65; (1985) 158 CLR 661; (1985) 59 ALJR 776; (1985) 61 ALR 307; [1985] ATPR 40-622, and the numerous cases which have followed that judgment, which indicate that to be liable a putative accessory must intentionally participate in a contravention, and that to form the requisite intent the putative accessory must have knowledge of the essential matters going to make up the contravention, whether or not the putative accessory knows that those matters amount to a contravention. Necessary intent will be absent if the putative accessory does not know or believe that the assistance or encouragement given is something which goes to make up the facts which constitute the contravention. The principles concerning accessorial liability under federal workplace relations legislation are further expounded in Construction, Forestry, Mining and Energy Union v Clarke [2007] FCAFC 87; (2007) 164 IR 299; (2007) 59 AILR 100-686 (“Clarke”) at [26] per Tamberlin, Gyles and Gilmour JJ, where the Full Court of the Federal Court observed that:
  4. Section 550 of the FW Act does not require knowledge that there has been a contravention for the purposes of imposing accessorial liability, and ignorance of the law is no excuse: Fair Work Ombudsman v Access Embroidery (Australia) Pty Ltd [2012] FMCA 835 at [41] and [50]-[54] per Turner FM. Suspicious circumstances and a wilful failure to make enquiry may result in an inference being drawn as to actual knowledge for the purposes of imposing accessorial liability: Giorgianni at 482, 487 and 507-508 per Wilson, Deane and Dawson JJ; Fair Work Ombudsman v Devine Marine Group Pty Ltd [2013] FCA 1135 (“Devine Marine”) at [43] per White J. Being knowingly concerned in a contravention requires association with, or implication in, or a practical connection with the contravening conduct: Clarke at [26] per Tamberlin, Gyles and Gilmour JJ; Qantas Airways Limited v Transport Workers’ Union of Australia [2011] FCA 470; (2011) 211 IR 1; (2011) 280 ALR 503; (2011) 62 AILR 101-349; ALR at 324 per Moore J. A person may be involved in a contravention by act or omission: Fair Work Ombudsman v Al Hilfi [2012] FCA 1166 at [44] and [49] per Besanko J.

Consideration – accessorial liability

  1. There is no doubt that Mr Quinn was knowingly involved in the contraventions that have been found. Mr Quinn was in day-to-day control of the management of Sell Lease Property, and was aware of the relevant employment arrangements and day-to-day dealings with Mr Zehnder which gave rise to the contraventions found.
  2. Mr MacEwan was directly involved in the wages and entitlements contraventions because he was the person who signed the Contract, pursuant to which the wages and entitlements which were in contravention of the Award, were paid (or not as the case may be) to Mr Zehnder: TD2 at 112. Furthermore, Mr MacEwan as Licensee had an obligation to ensure that other employees of Sell Lease Property complied with the provisions of “relevant statutes”: Code of Conduct, r.8(2) and (3). There can be no doubt that in relation to the employees of a real estate business the FW Act is a “relevant statute”, and there is no dispute in this case that it was applicable to Mr Zehnder. As such, Mr MacEwan had a responsibility to ensure compliance with it, and in circumstances where he was the Licensee, signed the Contract, had been kept informed from time to time of various developments in the relevant period, at least by email, he cannot be said to not have had knowledge of the relevant facts giving rise to the contraventions. Finally, and conclusively, Mr MacEwan’s own evidence, repeated more than once, was that he knew what was going on in relation to Mr Zehnder, and that he had to know what was going on, because ultimately he was the licensee who was statutorily liable under the REBA Act: TD2 at 113-114.
  3. In determining that each of Mr Quinn and Mr MacEwan are accessorially liable for the contraventions found by the Court, the Court has also had regard to the fact that they were members of a small, and seemingly close-knit, management team, and that Mr MacEwan had overall responsibility for the business activities of Sell Lease Property as Licensee, and that Mr Quinn had day-to-day responsibility for the management of Sell Lease Property in his capacity as Chief Executive Officer.
  4. In all the above circumstances, the Court finds that Mr Quinn, and Mr MacEwan are accessorially liable for the contraventions found by the Court.

Breach of Contract

  1. In Mr Zehnder’s submissions he alleges a breach of contract under the heading “Breach of Contract (Part Time Employment Agreements)” as an alternative if any of the alleged contraventions against the FW Act or the Award are not found.
  2. The Court has found a breach of contract with respect to the failure to pay in lieu of notice, and indicated that it may be arguable that there is either a failure to pay commission in full for the purposes of s.323 of the FW Act, or possibly pursuant to the Original Contract, for the superannuation deductions referred to at [152]-[172] above. Save for those matters, the alleged breaches of contract referred to in Mr Zehnder’s submissions and said to be an alternative if any of the alleged contraventions against the FW Act or the Award are not found, are vague and not readily ascertainable, not properly pleaded, and not particularised at all in terms of a breach of contract (and it is not apparent whether it is the Original Contract or the Part Time Contract which is being referred to as the relevant contract), and in those circumstances the Court cannot properly deal with the alleged breach or breaches of contract. Therefore, save as indicated above, the Court finds that any alleged breach of contract must fail.

Conclusions and orders

  1. By reason of:
    1. the number of matters to be the subject of declarations and orders in these proceedings;
    2. those matters referred to at [152]-[157] and [221]-[223] above which need to be the subject of further submissions prior to any final declarations or orders with respect to them,

the Court considers that it would be appropriate for the parties to confer with respect to appropriate orders and directions with a view to preparing a consent minute of proposed declarations and orders by 26 April 2018. If the parties are unable to reach agreement on a minute of proposed consent declarations and orders then each party is to file and serve a minute of proposed declarations and orders by 4.00pm on 3 May 2018, and the matter will otherwise be adjourned for mention and further directions at 2.15pm on 18 May 2018. The Court will then deal with directions generally, but in particular in relation to the matters (and only those matters) to be the subject of further submissions, any future penalty hearing and costs. The Court notes that on the face of it this is a no costs matter: FW Act s.570(1). In that regard the parties might also note the authorities referred to in Eaton (No 2) at [205] per Judge Lucev, and the observations in Celand at [70]-[74] and [89] per Logan J and [161]-[164] per Bromberg J.

I certify that the preceding two hundred and sixty (260) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Date: 12 April 2018

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