In Adcock v Blackmores Limited & Ors  FCCA
265 (February 12, 2016), the Federal Circuit Court of Australia
("FCCA") found that an employee had not been made
redundant when his role was made redundant but he had been made
genuine offers of employment in similar roles not inferior in
seniority, remuneration, and responsibility, which he had rejected.
Accordingly, the court held that the employee was not entitled to
the relevant redundancy benefits.
In September 2014, Mr. Adcock, who had been employed as Commercial
Manager Asia by Blackmores Limited ("Blackmores"), left
Blackmores claiming that it had repudiated its contract of
employment with him. Mr. Adcock's resignation followed a period
in which Blackmores made a number of offers to reassign him to
various different positions, after notifying him that the role of
Commercial Manager Asia had been, in broad terms, made redundant.
One important term of Mr. Adcock's contract, which was
highlighted to him when the various offers of alternative positions
were made, was that he could be asked to perform tasks or duties
other than those set out in the position description of his current
job and that his position and responsibilities could be changed
from time to time.
He brought proceedings in the FCCA for recovery of redundancy
entitlements and pay in lieu of notice and sought orders imposing
pecuniary penalties for beaches of the relevant enterprise
agreement. Mr. Adcock alleged that:
He had been made redundant;
Blackmores had repudiated his
contract of employment;
By failing to pay him notice and
redundancy pay, Blackmores had breached the enterprise agreement
and therefore section50 of the Fair Work Act 2009 (Cth)
Blackmores, through one or more of
its representatives, knowingly or recklessly made false and
misleading representations to him relating to his ability to
recover entitles in court and his entitlements under his employment
contract, in breach of section345 of the Act.
The primary question for the court was whether Mr. Adcock had been
constructively dismissed through repudiation. Judge Cameron stated
that the test to be applied was whether the employer's conduct,
judged objectively, evinced an intention no longer to be bound by
the contract or to fulfill it only in a manner substantially
inconsistent with the employer's obligations. As the offers of
alternative positions, a number of which had been made by
Blackmores, did not involve a significant diminution in
remuneration, status, or responsibility, they were found not to be
repudiatory. Mr. Adcock further failed to identify what conduct
amounted to be repudiatory except for the argument that, in
practical terms, an employer could avoid redundancy payments by
purporting to transfer the employer to an "unsuitable
role" such as an interstate transfer. The court, not being
satisfied that this was in fact the case, found that Blackmores had
not repudiated its contract with Mr. Adcock and, hence, Mr. Adcock
had resigned on the date he left the company.
As Mr. Adcock failed to demonstrate that he had been made
redundant, his claims that Blackmores had breached section50 of the
Act by failing to pay him redundancy and notice entitlements also
The court also found for Blackmores in the false and misleading
representations claims under section345 of the Act. In the case of
the alleged representation by Blackmores to Mr. Adcock of his
prospects of success in litigation, Judge Cameron found the
requisite reliance element lacking because of the general nature of
the relevant comments and the fact that Mr. Adcock had already
engaged lawyers at this stage. In the case of representations as to
his contractual entitlements, Judge Cameron found that, on the
evidence, such representations had not, in fact, been made to Mr.
Accordingly, Mr. Adcock's application was dismissed.
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An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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