Michael John Carroll; Benjamin Lettres; David William Jones; Johnnie Wayne... [2025] FWC 1305 | Case summary

Fair Work Commission|2025-06-11

The applicant perceived, and in my view correctly perceived, that there was a considerable change in the nature of the new position he was being offered. He was, in effect, to become a senior, specialist claims clerk, whose considerable experience and expertise might be available to other people outside his team, dealing with claims, but it would be at the option of those other people, to consult him or not. Continuing to call him a Claims Manager did not make him one.

[44] His Honour also referred with approval (subject to a gloss) to the following observation by the learned authors of the Law of Employment (3rd Edition, Law Book Company 1990), Macken, McCarry and Sappideen (at p 188):

In the absence of a contract allowing it, the employer cannot force changes [of jobs or regrading] on an employee. An attempt to do so will involve the employer in breach of contract if the [employee] presses her or his requirements....

[45] The gloss which his Honour put on the above statement is that:

..... this must not be taken to propound undesirable inflexibility: there must be some reasonable give and take. In a rapidly changing world, it would be uncommon for the parties to a contract of employment to envisage no change in aspects of the job. But employers' perceptions as to what are the important aspects of jobs they have promised employees and later wish to change may not coincide with the perceptions of the employees, nor of independent observers, such as courts to which the employees might, in due course repair. Serious, non-consensual intrusions upon the status or responsibilities, as well as upon the remuneration, attaching to a job may well be held to amount to a repudiation of the contract of employment, and their actuality will not be denied merely by the retention of the job's title. That is the drift and the tenor of cases such as Beck v Darling Downs Institute of Advanced Education (unreported, Supreme Court of Queensland, No 3865 of 1988, Dowsett J, 20 April 1990) and Quinn v Jack Chia (Australia ) Ltd [1992] VicRp 37; (1991) 43 IR 91.

[46] I respectfully adopt his Honour's approval of the passage from Macken, McCarry and Sappideen and the gloss which his Honour put on it.

[85] I am satisfied that the mega deal position constituted a substantial diminution in status and responsibility when compared to the plaintiff's former VP and GM role. In his former role Mr Whittaker had been responsible for a profit and loss account and running one of the three business units within Unysis' Asia Pacific operation. He managed a budget and had eight direct reports. The plaintiff was then unilaterally removed from that position and offered a senior specialist role in which he would be responsible for negotiating and closing 'mega deals'. No specific budget or resources had been allocated to the proposed role. He would have only one direct report and no responsibility for the management of a business unit or a profit and loss account.

[86] I am satisfied that the removal of the plaintiff from the VP and GM position and the offer of the mega deal position constituted a repudiation of his contract of employment. By its actions, Unysis evinced a plain intention not to be bound by the existing contract.**

[62] The Broadlex and Whittaker decisions should be understood in light of the meaning of dismissal in s.386 of the Act, a consideration which Katzmann J broadly alludes to. That section defines a dismissal as either termination at the initiative of the employer or a forced resignation. In NSW Trains v Todd [2022] FWCFB 55, the majority of the Full Bench made the following comments:

[32] Contrary to Deputy President Saunders' construction, we consider that s.386(1) exclusively defines the circumstances which give rise to a person being 'dismissed' by an employer for the purposes of Part 3-2 the FW Act. It follows that a person who has been demoted in employment, but who remains in the employ of the employer, has only been 'dismissed' if the person's employment has been terminated on the employer's initiative within the meaning of s.386(1)(a) of the FW Act

[45] We agree with the proposition that the expression 'employment ... has been terminated' in s.386(1)(a) means termination of the employment relationship and/or termination of the contract of employment. Contrary to the Deputy President's view at first instance, on this construction, unless the circumstances in s.386(2)(c) apply, an employee may be dismissed within the terms of s.386(1)(a) if the employer has repudiated the employee's contract of employment by demoting the employee and the employee has accepted that repudiation but has continued to be employed by the employer under a new employment contract.

[63] In Ucinek v Medi-Map Group Pty Ltd [2024] FWC 981, Deputy President Hampton considered, in the context of a general protections application, whether an Applicant's contract was repudiated or whether she was demoted after she was informed that the Respondent no longer needed her of General Manager and instead moved her into the role of Head of Sales and Marketing. The Deputy President considered that unilateral changes to an employee's role could objectively constitute a repudiation,[14] but found in that case that that had not occurred. The Deputy President distinguished between actual changes and proposed changes in the future which may lead to the Applicant's duties no longer being required and noted, on balance, that a reasonable apprehension of changes in the future did not substantiate a finding of repudiation at that point in time.[15]

[64] I considering whether the redeployment upon the loss of the RACQ contract resulted in a termination of employment at the employer's initiative either by way or repudiation and/or demotion through significant reduction in duties or remuneration, I will consider the following factors:

The job which the Applicants were performing prior to the redundancy;
The differences in duties and remuneration in the new role which the Respondent directed the employees to undertake; and
The ability of the Respondent to direct the Applicants to undertake new duties.

Roles which the Applicants were employed in prior to the redundancy

[65] The Applicants were employed in the role of "Roadside Technician" under their employment contracts. It is noted in the employment contract that the employee is required to perform the position of roadside technician, as well as other tasks from time to time. There is no list of duties incorporated into the contract.

[66] The contract notes that the employee has duties to comply with reasonable directions of the employer.

[67] It is very common for an employment contract to give the employer a broad power to direct the employee to perform other duties, to give flexibility. However, this power is not unlimited.

[68] The roadside technicians reported to Mr Lucas Wheeler.

[69] Mr Lettres described the role of Roadside Technician as follows:

I was at the time working 11 hour shifts, attending to vehicles broken down and in need of assistance, if I was unable to assist in getting the vehicle back on the road, a tow truck would be called and the vehicle would be taken to a workshop to be repaired. No workshop duties would be performed by me. My role included weekend work, night shifts and public holidays.

[70] It is tolerably clear that the role of Roadside Technician, based on the submissions of the parties, requires the person to be on the road, performing mechanical assistance for RACQ customers. The Applicants say that that work was "very basic" and not the same as what a mechanic would be expected to do. The Respondent has not provided further evidence of what the role required. I note that the Roadside Technicians were contracted to perform work for RACQ. It seems that the Roadside Technicians were afforded a degree of autonomy when on the road, given they were driving service vehicles and attending breakdowns, rather than working in a workshop under directly under supervision.

[71] As roadside technicians, the Applicants received a base hourly rate of $35 per hour as well as a "battery bonus" which was a sales commission for batteries sold to customers.

Differences in duties and remuneration in new role

[72] It is clear that the new roles were not the same role as before. The Respondent states in its letter of 26 November 2024:

- Your role as a Roadside Technician being redundant as of 9 December 2024, means it will it be filled by anyone in Madill Motor Group.

[73] Further, it is submitted in the written submissions:

[9] The respondent offered each affected employee an alternative role at the same hourly rate although there was some change to their duties and the nature of the work.

[10] There was no forced transfer to lower paid duties.

[74] It is necessary to examine in detail what was offered to the Applicants.

[75] On 20 November 2024, Mr Carroll met with the Respondent and states that he was given "a printed copy of a job description, with no start date, pay rate, or other information was given to the applicant". The position was stated to be as a Service Technician and was verbally stated to be in Gympie. Mr Carroll states that the role is substantially different from his role of Roadside Technician in that it requires far greater knowledge and skills, and he may not be in the physical condition to undertake that kind of work due to his age. He suggested that he would require retraining to perform the new role. Mr Carroll also notes that the job is in Gympie and would require more travel.

[76] With the Roadside Technician role, the Applicants were provided with a service vehicle. Mr Carroll noted that in the Service Technician role he would have to drive to Gympie in his own car.

[77] Mr Carroll also noted that the role required him to have more tools than he currently owns. Each of the Applicants estimated that the tools would cost $3,000 to $5,000. It is not clear where they got this figure from. Mr Carroll did not provide a copy of the letter he received on 7 December 2024. However, I note based on the letters provided by other Applicants, the tool allowance is $13.86 per week. I note a tool allowance of $13.86 per week equates to approximately $720.00 per year.

[78] Mr Lettres was offered a role as Trade Assistant and was provided with a job description:

EXCEPTIONAL COMMUNICATION SKILLS
EXCEPTIONAL CUSTOMER SERVICE SKILLS / PHONE MANNER
BASIC MECHANICAL KNOWLEDGE
MUST BE SELF MOTIVATED, INNOVATIVE AND POSITIVE.
CURRENT DRIVERS LICENCE

PROVIDE THE BEST POSSIBLE SERVICE TO OUR CUSTOMERS WHILE ASSISTING TO MAINTAIN AN EFFICIENT AND PROFITABLE OPERATION
CARRY OUT JOBS AS DETAILED ON JOB CARDS (RO'S)
ALWAYS AIM FOR FIXED RIGHT THE FIRST TIME
DO JOB AS QUICKLY AS POSSIBLE WHILST ALWAYS MAINTAINING A VERY HIGH STANDARD OF WORK

MAKE SURE EVERY VEHICLE IS WASHED AND TYRES BLACKED
MAKE SURE SERVICE ADVISOR IS ADVISED IF VEHICLE IS NOT GOING TO BE READY ON TIME
TELL SERVICE ADVISOR IF ANY FURTHER REPAIRS ARE NEEDED FOR VEHICLE.
KEEP SERVICE MANAGER INFORMED OF ALL PROBLEMS AND POTENTIAL
PROBLEMS INVOLVING REPAIRS, CUSTOMERS, PARTS AND EQUIPMENT.

MAKE SURE THAT YOU CLOCK ON AND OFF EVERY SERVICE JOB
ALWAYS REFER ANY QUESTIONS THAT YOU MAY HAVE TO THE FOREMAN OR THE SERVICE ADVISOR. ALL JOBS COMPLETED MUST BE INSPECTED BY A QUALIFIED TECHNICIAN.
MAKE SURE EVERY VEHICLE IS TEST DRIVEN AND WASHED AND TYRE BLACKED
MAKE SURE THAT EVERY JOB CARD HAS THE CORRECT STORY WRITTEN ON THE BACK
GIVE JOB CARDS TO THE FOREMAN AS SOON AS THE WORK IS FINISHED
KEEP SERVICE BOARD UPDATED CONSTANTLY
LET THE FOREMAN KNOW AS SOON AS YOU KNOW IF THERE ARE ANY PROBLEMS WITH THE JOB I.E. NOT GOING TO BE READY ON TIME OR FURTHER REPAIRS WILL NEED TO BE CARRIED OUT
ENSURE REPAIRS ARE DONE PROPERLY
ENSURE EVERTHING THAT IS ON THE JOB CARD HAS BEEN DONE
ENSURE THAT THE WORKSHOP IS ALWAYS IN A CLEAN AND SAFE STATE
ENSURE SECURITY OF CUSTOMER VEHICLES
EXPLAIN ALL ASPECTS OF THE JOB AND WORK CARRIED OUT TO THE FOREMAN AND ENSURE THE FOREMAN IS HAPPY WITH THE EXPLANATIONS AND THE WORK CARRIED OUT
COORDINATE & COOPERATE WITH ALL DEPARTMENTS AT ALL TIMES
CARRY OUT OTHER TASKS AS DIRECTED BY MANAGEMENT

MAKE SURE YOU WORK TO THE BEST OF YOUR CAPABILITY
WHERE NECESSARY PREORDER ANY NON REGULAR PARTS FOR BOOKINGS
IDENTIFY R/O'S THAT REQUIRE SPECIAL HANDLING, SUSH AS CUSTOMER WAITING, PRIORITY REPAIR OR COMEBACK, ETC.
OBTAIN MANAGEMENT APPROVAL BEFORE CHARGING ANY AMOUNT AT ALL TO MADILL MOTOR GROUP
MUST HAVE ORDER NUMBER TO OBTAIN ANYTHING OUTSIDE OF THE COMPANY
MUST GIVE ANY INVOICES TO THE SERVICE ADVISOR AS SOON AS YOU GET THEM

MAINTAIN THOROUGH KNOWLEDGE OF WARRANTIES, POLICIES AND PROCEDURES
INTERPRET WARRANTY INFORMATION AND POLICIES TO CUSTOMERS WHERE NEEDED

MAINTAIN A HIGH DEGREE OF PRODUCT KNOWLEDGE ON ALL VEHILCES SOLD AND SERVICED BY OUR DEALERSHIP
FOLLOW HOUSEKEEPING, SAFETY AND SECUIRITY PROCEDURES THAT RESULT IN A SAFE AND ATTRACTIVE WORKING ENVIRONMENT
MAINTAIN WORKSHOP IN AN ATTRACTTVE STATE
DISCOURAGE IN A FRIENDLY MANNE& ANY ENTRY TO WORK AREAS BY
CUSTOMERS TO ENSURE THE SAFETY OF ALL CONCERNED
FOLLOWAND COMPLY WITH ALL THE DEALERSHIPS WORKPLACE HEALTH AND SAFETY PROCEDURES.
KEEP WORK AREA CLEAN AND UNCLUTTERED AT ALL TIMES
BE WELL PRESENTED WITH A PROFESSIONAL PRESENTATION

MAINTAIN ADHERENCE TO QUALITY ASSURANCE SYSTEMS
REPORT ALL CUSTOMER COMPLAINTS (INTERNAL AND EXTERNAL) AND CONDITIONS THAT ARE ADVERSE TO THE OPERATIONAL EFFICIENCY OF THE DEPARTMENT OR ACHIEVMENT OF QUALITY
MAKE SUGGESTIONS FOR IMPROVEMENT AS APPROPRIATE

PERFORMANCE STANDARDS FOR THIS POSITION ARE MET WHEN:

MONTHLY CUSTOMER LABOUR SALES OBJECTIVES, ESTABLISHED WITH MANAGEMENT, ARE ACHIEVED
TOTAL CUSTOMER SATISFACTION IS ACHIEVED AND TARGETS ARE MET
NO CUSTOMER COMPLAINTS ARISE WHICH HAVE BEEN CAUSED OR COULD HAVE BEEN PREVENTED BY YOU
ALL CUSTOMER COMPLAINTS ARE ATTENDED TO IMMEDIATLEY
YOU READ AND LINDERSTAND INFORMATION WHEN WRITTEN ON R/O,S
ALL INTERNAL PROCEDURES AS DIRECTED BY MANAGEMENT ARE ADHERED TO.

[79] I note the role is stated to require "basic mechanical knowledge". It seems to me that this must be a similar degree of knowledge to that required for a Roadside Technician, based on the description given by the Applicants.

[80] Mr Lettres does not state, as some of the other Applicants did, that he did not have the skills to perform the work. Instead, his primary concern was financial. He stated:

I was told verbally the location was in there [sic] Gympie Dealership (95.5km away), and the pay rate of $35.00 per hour, on a 38hr week in the warranty department of the workshop. I asked if there was a company car or Fuel card that comes with this roll [sic] and was advised I would have to use my own car, fuel and time to get to and from work. At the present time I do roughly 99km per fortnight traveling 33km to my current workplace to pick up the RACQ Patrol vehicle for my shifts (42hrs a week). I believe that this is not a reasonable offer of (redeployment) due to the Reduced hrs, cost of fuel, where [sic] and tare [sic] on my personal vehicle and time to get to and from work. I have also heard from co workers that we would be required to supply our own tools suitable for a modern workshop that could potentially cost $3000 - $5000.

On my calculations based on last financial years Gross pay, my salary will be $24442.12 less than last financial year, if you include the fuel I will use, I will be $36360.52 out of pocket compared to last financial year, this also doesn't include Ware [sic] and tear of my personal vehicle and servicing costs. [16]

If I accepted the roll [sic] offered, I would have been driving my personal Vehicle to gympie (99km from home) or Noosa (70km from Home) and back every day at my cost. In my final face to face meeting, I was advised I would be based in gympie. This would be approximately 10 hrs of driving per week, 990km per week, 150ltr fuel costing me around $300 per week, less hours per week and no bonus scheme or overtime. Overall worse off financially and not comparable, Also start a job in an environment I have not been in for 25years.[17]

[81] Mr Jones provided in evidence a Job Description for a Service Technician role and given to him during an in-person meeting in November 2024. That role appears to require more mechanical knowledge and skills than the Trade Assistant role:

CURRENT DRIVERS LICIENCE
SOUND COMMUNICATION SKILLS
SOUND KNOWLEDGE OF WORKSHOP PROCEDURES

PERFORM MECHANICAL SERVICE AND REPAIR WORK AS ASSIGNED
SATISFY CUSTOMER EXPECTATIONS BY PERFORMING WORK TO A HIGH LEVEL OF QUALITY
PERFORM WORK TN AN EFFICIENT/ PROFITABLE MANNER

CARRY OUT VEHICLE REPAIRS AND/ OR SERVICE AS PER THE REPAIR ORDER TO DEALERSHIP AND FRANCHISE REQUIREMENTS AND REPORT DIRECTLY TO THE FOREMAN WHENEVER THIS CANNOT BE DONE.
PLAN EACH JOB FOR MAXIMUM EFFICIENCY. ORDER PARTS (WHERE NECESSARY) FROM PARTS AS REQUIRED
MAINTAIN A SOUND KNOWLEDGE OF DEALERSHIP PRODUCTS AND SERVICES
REQUEST ASSISTANCE FROM FOREMAN WHEN PERFORMING DIAGNOSIS WHERE REQUIRED
FOLLOW CORRECT PROCEDURE WHEN CARRING OUT WARRANTY WORK AND ENSURE ALL WARRANTY PARTS ARE TAGGED WITH THE CORRECT INFORMATION AND PLACED IN WARRANTY STORAGE
BE RESPONSIBLE FOR THE CARE & USE OF ALL WORKSHOP TOOLING & EQUIPMENT AND RETURN TO CORRECT PLACE AFTER USE
CORRECTLY COMPLETE ALL WORKS AS PER STANDARD REPAIR TIMES GUIDE
CHECK FOR ANY ADDITIONAL WORK REQUIRED AND OBTAIN PRIOR AUTHORITY FROM CUSTOMER BEFORE ANY ADDITIONAL REPAIRS ARE CARRIED OUT
DO NOT UNDER ANY CIRCUMSTANCES GIVE CUSTOMERS QUOTES, REFER THEM TO A SERVICE ADVISOR
LEGIBLY COMPLETE ALL PAPERWORK CORRECTLY WITH ALL DETAILS REGARDING WORKS CARRIED OUT AND/ OR PARTS ORDERED
RETURN VEHICLES IN A CLEAN CONDITION AFTER REPAIRS
ALWAYS USE SEAT COVERS & FLOOR MATS
DO NOT SMOKE IN WORKSHOP AND ONLY IN DESIGNATED AREAS
OBEY ALL ROAD LAWS AND ONLY ROAD TEST WITHIN DESIGNATED TEST AREAS. REFER TO FOREMAN FOR THESE AREAS
MAINTAIN FAMILIARITY WITH AND FOLLOW DEALERSHIP PROCEDURES WHEN OBTAINING OR ORDERING PARTS
MAINTAIN FAMILIARITY WITH WORKSHOP TECHNICAL SERVICE BULLETIN
SUGGEST TRAINING AND TOOLING NEEDS TO FOREMAN AS REQUIRED
KEEP A COMPLETE UP-TO-DATE TOOL KIT
MAINTAIN WORK BENCH AND BAY AREAS IN A CLEAN, ORDERLY AND ATTRACTIVE STATE
MAINTAIN A SOUND KNOWLEDGE OF MADILLS POLICIES AND PROCEDURES (HANDBOOK SUPPLIED)
CARRY OUT OTHER DUTIES AS DIRECTED BY MANAGEMENT
MAINTAIN ALL WARRANTY PARTS IN AN ORDERLY FASHSION
CLEANING, MAINTAINING AND SERVICING ALL WORKSHOP AREAS AS REQUIRED

PARTICIPATE IN IN-HOUSE TRAINING SESSIONS AS REQUIRED
ATTEND TRAINING (CORPORATE OR TAFE) AS REQUIRED TO KEEP UP TO DATE WITH CURRENT PRODUCT TECHNICAL INFORMATION

MAINTAIN ADHERENCE TO THE QUALITY ASSURANCE PROGRAMME
REPORT ALL CUSTOMER COMPLAINTS (INTERNAL OR EXTERNAL) TO THE SERVICE MANAGER
MAKE SUGGESTIONS FOR IMPROVEMENTS AS REQUIRED

PERFORMANCE STANDARDS FOR THIS POSITION ARE MET WHEN:

REPAIRS & MAINTENANCE ARE CARRIED OUT TO THE HIGHEST POSSIBLE LEVEL OF QUALITY IN THE MOST EFFICIENT MANNER
A MINIMUM OF 95% PRODUCTIVITY IS ACHIEVED WITH AN EFFICIENCY OF 95%
A LOW OR ZERO LEVEL OF REPEAT WORK IS MAINTAINED
WORK BAYS AND WORKSHOP AREAS ARE CLEAN AND TIDY AT ALL TIMES
WARRANTY PARTS CAN BE FOUND FOR YOUR REPAIRS IN THE CORRECT AREA
THE CORRECT DIAGNOSIS IS CARRIED OUT AND THE CORRECT PARTS ARE REPLACED OR ORDERED

[82] Mr Jones argued that the new role had "too much travel time" but it is not clear to me whether he was offered a role in Gympie or Noosa. Mr Jones also noted that the role would have reduced hours.

[83] Mr Collis was verbally offered a Trade Assistant position during his in-person meeting with the Respondent at the end of November 2024. The Job Description provided to him was the same as the one given to Mr Lettres.

[84] Mr Collis states that while the Trade Assistant position had the same hourly rate, it would result in "substantially less remuneration" given there were less hours per week and because there was no battery bonus or overtime involved.[18]

[85] Mr Davidson was verbally offered a role as a Service Technician during a meeting on 22 November 2024, with the same role description as outlined above. Mr Davidson rejected that offer for the following reasons, as outlined in his email of 7 December 2024 to Ms Brown:

1.The offer is not of a similar role or comparative employment.

2. The type of work you propose is vastly different and more complex.

3. The extra financial costs to me would be considerable. My work hours would be reduced and there is no battery sales bonus, along with the increased time and costs of travel to and from the location of employment and the wear and tear on my vehicle, make it not viable.

4. I would also be required to supply my own tools and keep them updated when needed.

5. As I have not worked in a workshop situation for over 30 years, it would be difficult to achieve the 'minimum of 95% productivity with an efficiency of 95%' level of competency as stated in your job description, therefore, I feel that job security would be at risk.

[86] Mr Menzel was verbally offered a Service Technician role and provided a copy of the job description outlined above. Mr Menzel described his concerns with the role in an email to the Respondent dated 8 December 2024:

1/ Offer is not of comparable or similar employment to what I am currently doing for Madills now.

I have not been in a workshop environment for over 13 years employed as a Motor technician in any automotive repair industry.

For me to be employed in a workshop as a Motor Technician, I would not be able to meet your requirements listed on your proposed job description

issued to me by Madills. The levels of competency that would have to be met in a workshop will be potentially

difficult to achieve, due to the fact I have not been involved

This type of work that you propose is very different and more complex than what roadside assistance duties involve.

Might I add that I have been working for the RACQ for 40 years or more involved in roadside assistance and

2/ Financially your job offer of $35hr rate falls a long way short of what I am currently earning.

To start with I would need to buy more tools and tool boxes (etc) to carry out workshop tasks .As you can appreciate the scope of tools needed to do RACQ roadside is considerably less

I would not be working as many hours and a battery bonus which made up our salary will be lost in income each year which is a considerable amount.

I now have to travel 86 km every day if I was to work in Noosa, or 160km if I was to commence work in Gympie.

Simon informed me that the majority of work is in Gympie .

So as you can see I only travel 40km once a fortnight in my own vehicle to commence work when working for Madills as a RACQ roadside assistant.

The position that Madills is offering me is going to severely impact my life as well as income.

[87] Mr Menzel argued that the battery bonus was, at least for him, $10,000.00 annually. He also suggested that he "would be out of pocket conservatively $20,000 or more which would include travel costs and maintenance to my vehicle".

The Ability of the Respondent to direct the Applicants to undertake new duties

[88] In some ways, the Respondent's argument is back-to-front. The Respondent essentially argues that because suitable alternative employment (or "commensurate" to use the Respondent's word) was offered and the employees did not accept it, and took new positions with a different employer, then there was no termination to begin with. However, it must first be considered that the Respondent told the Applicants that their role was no required and that the work they would be doing was of a different kind to what they originally been performing.

[89] Clause 24 of the employment contract which I have been provided with requires:

The terms of the Contract may be varied from time to time by mutual agreement in writing between the parties.

[90] I have seen no evidence of any mutual agreement in writing to vary the employment contracts.

[91] As noted above, it is very common for an employment contract to include a broad power for the employer to direct the employee to perform "other duties".

[92] The clause should be read in context:

4.1 You are employed on a full time basis in the position described at Item 3 of the Schedule [Roadside Technician]

4.2 You may be required to perform other tasks from time to time, as reasonably requested by the Employer.

[93] Read in context, clause 4.2 cannot sensibly be construed to mean that the employer can direct the employee to perform any other tasks, for any duration of time. The clause is clearly directed to ad hoc duties and is further limited by the term "reasonably requested". I consider that the request for the affected employees to perform Service Technician and Trade Assistant roles without consent was not a reasonable request, as they were not ad hoc duties but a permanent reassignment and, further, there were differences in the kind of work to be performed from that of a Roadside Technician.

[94] The Applicants in this matter were employed specifically in the role of Roadside Technician in their contract, based on the evidence before me. I place weight on the fact that the Applicants accepted a role which was specifically stated to be as a Roadside Technician. The contract should be interpreted in a way that gives effect to the objective intention of both parties.

Conclusion on whether the Applicants were terminated within the meaning of s.119(1) of the Act?

[95] As to the location of the work to be performed, I note that the Applicants were concerned by working at either Noosa or Gympie. The employees who had already been contracted to work at either Noosa or Maroochydore could not object to working in Noosa on the basis of location, despite the fact that the drive would cause wear and tear to their personal car. It would clearly have been lawful for the employer to direct them to work at Noosa when their place of employment in the contract is stated to be Noosa. However, I accept that Gympie is further away. The majority of the Applicants are based on the Sunshine Coast. A direction to perform work in Gympie, would not, in view, fall within clause 7.2 of the contract:

7.1 The Employer's current primary business location is described In Item 6 of the Schedule [Noosa and Maroochydore],

7.2 You will be required to work at this location, unless otherwise reasonably requested by the Employer.

7.3 You may also be required to travel as reasonably necessary for the performance of your duties.

[96] The request to work at a different location is qualified by the phrase "reasonably required".

[97] I note that it is not clear whether the Applicants would have been required to work solely in Noosa or Gympie. Although the letter of 6 December 2024 sent to the Applicants noted the location was Noosa, the Applicants claim that they had been verbally informed that the work would be in either Noosa or Gympie and Mr Menzel states that he was informed that the majority of the work would be in Gympie. Given the Respondent indicates that some sort of concession was to be made with respect to location upon transfer, I will give that concession due weight.

[98] For the Applicants who were offered the Service Technician role, I consider that the following changes are significant:

The Applicants' daily responsibilities of performing roadside assistance services were no longer required.

Where the Applicants would have previously delegated the tasks of performing vehicle repairs to a mechanic and sending the vehicle off in a tow truck, they would now be required to perform repairs themselves, in a workshop.

The Applicants would be held to new performances standards, namely "minimum of 95% productivity is achieved with an efficiency of 95%"

The Applicants would now be working under the direct supervision of a Foreman in a workshop rather than performing their duties on the road without direct supervision

The Applicants would no longer receive a battery sales bonus but would receive a tool allowance of $13.86 per week

The Applicants hours would be reduced by approximately 10% from approximately 42 hours per week to 38 hours per week.

[99] For the Applicants who were offered the Trade Assistant role, I consider that the following changes are significant:

The Applicants' daily responsibilities of performing roadside assistance services were no longer required.

The Applicants would be required to perform customer service duties and liaise with the service advisor and service manager about any service problems which may affect customers

The Applicants would assist a qualified mechanic and would be responsible for task such as washing cars and blacking tyres.

The Applicants would now be reporting to the Service Manager rather than performing their duties on the road without direct supervision.

The Applicants would no longer receive a battery sales bonus but would receive a tool allowance of $13.86 per week

The Applicants hours would be reduced by approximately 10% from approximately 42 hours per week to 38 hours per week.

[100] These changes, together with a potential change in location, were all to take effect from 10 December 2024, rather than being a natural development over a period of time. Taken together, these changes in employment, for both the Service Technician and Trade Assistant roles, are significant and amount to a repudiation of the existing employment contract which had noted that the Applicant were employed as Roadside Technicians. I have further taken into account the views of Deputy President Hampton in Ucinek and note that unlike in that matter these changes were more than reasonable apprehensions of change, the changes were to take definite effect from 10 December 2024.

[101] It is very clear that the Applicants did not agree to the changes - they informed the Respondent that they would not accept the new role. It is well accepted that contractual repudiation in Australia requires the other party to elect to either waive the repudiation or to terminate the contract. In my view, the Applicant clearly elected to terminate the contract - first they indicated in writing that they would not accept the redeployment offer on 24 November 2024. Secondly, they lodged a dispute in the Commission contesting the Respondent's redeployment proposal and requesting that they be paid a redundancy. Thirdly, they did not arrive at work on 10 December 2024 and some affected employees wrote directly to the Respondent indicating that they did not accept the proposal. They therefore accepted the repudiation and elected to terminate the contract. The termination was therefore at the initiative of the employer.

[102] Even if I am wrong in finding that the contract was repudiated, I would find that the change of duties amounted to a demotion due to the reduced remuneration the Applicants would receive. While the Applicants' hourly pay would remain the same, their weekly hours, and consequently their weekly pay, would be reduced by 10%, they would no longer receive a Commission bonus and the hours they would work would not attract the same overtime as before. While commission bonuses are conditional upon meeting certain KPIs, and are therefore not guaranteed, the lack of a bonus scheme means necessarily reduces the amount which the Applicants could earn in their role. The reduction in hours worked would also reduce their leave accruals. Given the reduction in remuneration would be significant, this qualifies as a demotion within the meaning of s.386 of the Act. I refer to the Full Bench decision of NSW Trains v James in which the Applicant's remuneration was reduced by 10%. The majority of the Full Bench commented in obiter that the Appellant had not established that the finding that a 10% reduction in remuneration was significant was in error:

[158] The Respondent submits that the Deputy President was correct to find that a significant reduction in remuneration or duties is one which is important, or notable, or of consequence, having regard to its context and intensity. The purpose of the adjective "significant" is to exclude impacts that are properly seen as minor or unlikely.

[159] The Respondent submits that whether a reduction in remuneration or duties is "significant" is an objective test, having regard to all the relevant circumstances.

[160] The Respondent contends that the demotion of Mr James resulted in NSW Trains reducing his remuneration by almost 10%. As noted in the Decision (at [33]), there are other flow on effects, including a decrease to the value of Mr James' accrued annual leave entitlements, accrued long service leave entitlements, superannuation benefits and, importantly and relevantly, Mr James' redundancy pay benefits. It is submitted that on no view can such a reduction in remuneration be regarded as minor.

[161] We agree that the expression "significant reduction [in remuneration or duties]" takes its ordinary meaning as being a reduction that is "important; of consequence". Previous AIRC and Commission decisions give an indication of the magnitude of a reduction that may constitute a significant reduction. We also agree that whether a reduction in remuneration or duties is "significant" is an objective test, having regard to all the circumstances.

[162] While we do not need to decide this point in view of our overall conclusion that Mr James' demotion does not constitute a dismissal within the meaning of s 386(1)(a), we are not satisfied that the Appellant has established a significant error of fact in relation to the Deputy President's finding of a significant reduction in remuneration. Accordingly, this appeal ground is dismissed.

[103] Therefore, I find that the Applicants' employment was terminated within the meaning of s.119(1) of the Act. The employment was terminated because the Respondent no longer needed the Roadside Technician job to be done by anyone.

[104] Given I have found that the Applicants were terminated at the Respondent's initiative, it is not strictly necessary to consider the alternative argument, which was faintly put forward by some of the Applicants, that they were forced to resign. However, I wish to make some comments on the process followed by the Respondent.

[105] I am sympathetic to the Respondent's view that, as a matter of courtesy, the employees should indicate whether they are staying or going so that the employer can make appropriate arrangements. It was not unreasonable for the Respondent to make that request.

[106] However, the Applicants also raised cogent points that they could not properly respond to the redeployment offer as they were not given enough detail. After being advised during a conference to set out the redeployment offer in writing, the letters which were sent to employees on 7 December 2024 were lacking in detail.

[107] The Respondent did not follow best practice when consulting with their employees, which led to the Applicants feeling like they were forced to resign. Employers should be careful of the wording they use so they do not mislead employees, whether intentionally or not. In this case, Mr Guthrie encouraged employees to meet with Club Assist and organised for RACQ to speak to employees onsite. While Mr Guthrie appears to have been trying to do the best thing by his employees, he should have clarified to employees that there was no agreement for Club Assist to provide continuity of service for employees who moved to Club Assist.

Whether consultation requirements under clause 35 were met

[108] As noted above, the Applicants argue that there was a lack of consultation. It is unclear what turns on this lack of consultation - for example, there is no suggestion that the Commission has the power to reinstate the Applicants under s.739.

[109] Clause 35 of the Award provides as follows:

35.1 If an employer makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must:

(a) give notice of the changes to all employees who may be affected by them and their representatives (if any); and

(b) discuss with affected employees and their representatives (if any):

(iii) measures to avoid or reduce the adverse effects of the changes on

(c) commence discussions as soon as practicable after a definite decision has been made.

35.2 For the purposes of the discussion under clause 35.1(b), the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including:

(c) any other matters likely to affect employees.

35.3 Clause 35.2 does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer's interests.

35.4 The employer must promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussion under clause 35.1(b).

35.5 In clause 35 significant effects, on employees, includes any of the following:

(b) major changes in the composition, operation or size of the employer's workforce or in the skills required; or

(c) loss of, or reduction in, job or promotion opportunities; or

(f) the need for employees to be retrained or transferred to other work or locations; or

35.6 Where this award makes provision for alteration of any of the matters defined at clause 35.5, such alteration is taken not to have significant effect.

[110] The Applicants contest that the consultation clause was complied with, primarily because details of the changes were not given "in writing" as per clause 35.2. The Respondent argued that: "This consultation clause does not require notice of such change as is being considered in this matter to be in writing"[19]. The Respondent appears to proceed on an assumption that because they lost the contract, this clause does not apply. However, it was the Respondent who, after the contract had been terminated, made a "definite decision" that the Roadside Technician positions were no longer required and that the Applicants would be redeployed.

[111] Whether the Respondent wanted to make the decision to make the positions redundant is irrelevant. It would be a fair statement that most employers do not want to make employees redundant.

[112] In WorkPac Mining Pty Ltd v Botiki & Ors [2021] FWCFB 3325, the Full Bench stated:

In any event, there is nothing unusual about major changes in a business occurring in response to a decision made by an external client affecting the demand for the business' services; this may occur in a range of industry contexts, not just the labour hire industry, and it has never been taken to mean so far as we are aware that the major change has occurred absent any decision being taken by the business.[20]

[113] Deputy President Boyce considered a similar issue in Davison v DHL Supply Chain (Australia) Pty Ltd [2021] FWC 4573 where the Applicant was made redundant as a result of a lost third-party contract:

Whilst the change at the AP2 site arose from SA's decision to cease its contract with the Respondent, the decision to make any change, and the scope of the change to be made, was squarely the prerogative of the Respondent. In other words, the changes made at the AP2 site were determined by the Respondent. In my view, the fact that any change to the Respondent's operations flowed from the loss of a contract with a third party does not alter the fact that any decision to make changes at the Respondent's workplace (i.e. at the AP2 site), flowing from the loss of the SA contract, was a decision of the Respondent.[21]

[114] The change would plainly result in "significant effects" within the meaning of clause 35.5 including at least, on the Respondent's understanding at the time, potential transfer to another location. Therefore, consultation was required.

[115] The without prejudice letters sent by the Applicants to the Respondent on 24 November 2024 states as follows:

To date, I have not received any official notification in writing advising me of the cessation of RACQ roadside assistance activities with Madill Motor Group. A phone call does not meet your requirements as an employer to advise staff of changes to their contracted employment, proposed date of final operations, or options regarding termination, redeployment offers and redundancy.

I have accommodated Madill Motor Group in their request for a meeting to discuss the situation, at which, no written confirmation of any changes to contract or employment conditions/locations was supplied. The only written information I have received is a job description of a proposed rote within the organisation, with no commencement date, no written notice of payrate, and no notice of when RACQ duties will cease. Again, verbal information is not sufficient in this situation.

[116] The Applicants were first informed of changes during a telephone call of 28 October 2024. I agree that the Respondent should had sent the affected employees a letter after the telephone call confirming what was said during the call. However, I must reject the argument put forward by the Applicants that everything said in that phone call was "hearsay" and cannot be relied upon at all. Plainly, the affected employees were aware that the contract was ending and that this would lead to their roles being made redundant.

[117] Further, the argument that the Respondent is required to disclose the reasons why the RACQ contract was not renewed is rejected. The employer is not required to disclose confidential commercial discussions.

[118] Further, I note that on 8 November 2024, Ms Brown sent emails to affected employees inviting them to attend a meeting in person:

We understand this major change for our business has created uncertainty and concerns for some of you affected by the ending of our RACQ contract.

During Simon Guthrie's conversation with you on 28 October, 2024, he suggested it would be best for you to meet with Club Assist and discuss their opportunities being offered to you and then to contact me to arrange a suitable day and time to come back to us individually to discuss options available for you, should you prefer to stay within our employ.

In fact, the modern award which covers your terms and conditions of employment being the Vehicle Repair Services and Retail Award 2020 requires us to meet with you about the possible impact of this major change, and not just correspond in writing.

We encourage you to come and meet with us about this during days when you are working. It is not appropriate for us to continue to correspond about this change. If there are existing documents you require such as your employment contract and payslips, then please ask and you will be sent copies.

We would really appreciate the opportunity to sit down with you individually to discuss roles that would be suited to your skill set within the business and the location of those roles, as did Club Assist. Obviously as each person's skills, qualifications and experience are unique, there will be slightly different roles which are suited to each employee. We are concerned that many of you have not met with us since we first informed you of this major change on 28/10/24.

We can confirm our assurances that the roles we have for you will be on a comparable pay rate and will be a similar role. Please understand, while your current position as a Roadside Assistance Technician will be redundant within our business, your employment with us will not be when our contract with RACQ finishes. This means your employment will not end because of redundancy.

We again ask you to meet with us individually to discuss positions we have available as your employment will continue should you not tender your resignation when you choose to take up one of the positions with Club Assist.

We understand you may have concerns if you're required to give 4 or 3 week's notice but are happy to amend that to 2 week's notice required so you can make your decision by 25 November, 2024.

We look forward to meeting with you soon and have tentatively set aside 20, 21 & 22 November at this stage to discuss the roles we have. Lucas will confirm suitable times during your shift on one of those days to come to Noosa to meet with us, once he returns on the 18th. Please confirm your attendance via email, should you choose to attend, once you have a day and time set aside with Lucas, so that we know to expect you.

[119] I consider that the Respondent's failure to advise in writing of the ending of the RACQ contract was ameliorated by the email of 8 November 2024 which notes that the RACQ contract will finish, that the Roadside Technician role will be redundant and that redeployment options are available. The email also notes that the employee can give two weeks' notice and has until 25 November 2024 to make a decision about whether they stay. I consider that this email fulfilled the Respondent's requirements to give notice of the major change in writing.

[120] There is, however, a perversity to the Respondent's contention that the employee is obliged to take positive steps to meet with the employer. As the Respondent is the one notifying of the change, even if the change is not caused their own doing, they are required to consult with the employees. The Respondent is obliged to engage in discussions as "as soon as practicable" after the decision is made. The employer should not wait for employees to contact them first. Best practice would be to initially conduct group consultation meetings to discuss the change, perhaps via videoconference if the employees are spread out. The Respondent could then invite individual employees to meet with them to discuss redeployment options.

[121] I note that whilst the invitation to attend a meeting was sent on 8 November 2024, the meetings were not held until 20 to 22 November 2024. One could question whether this was "as soon as practicable after a definite decision has been made", as is required by the Award. However, I note the Respondent's justification for the delay was that the key staff were on leave in the intervening period. I accept, on balance, this justification but note that consultations meetings with employees should be made a priority.

[122] The Respondent held the following meetings with affected employees:

Mr Davidson attended an in-person meeting with the Respondent on 20 November 2024. He was provided with a printed job description for a Service Technician role, stated to be in Gympie.

Mr Lettres had a meeting on 22 November 2024 with the Respondent in person at Maroochydore. He was provided with a job description for a Trade Assistant role.

Mr Jones attended an in-person meeting and was provided with a job description for a Service Technician role.

Mr Davidson attended an in-person meeting on 22 November 2024 and was provided with a job description for the Service Technician role.

Mr Collis attended a meeting on 20 November 2024 and was provided with a job description.

Mr Menzel attended a meeting on 20 November 2024 was provided with a job description for the Service Technician role.

[123] I accept that there was a degree of accommodation by the Respondent, in that the Respondent took into account where the Applicants lived and their skillset when deciding whether to redeploy them as Trade Assistants or Service Technicians. I note the Respondent is required to consider matters raised by the employees during the consultation meetings. I have not been provided with great detail of what was said in those meetings but it seems the primary concern raised by the Applicants was the location of the job. The Respondent asserts that the employees were told that the location would be "subject to confirmation of final placements and there may be some flexibility in the future." Indeed, despite having been told that the locations of their new roles would be Gympie, by the rime the

[124] On balance, I find that the Respondent met the consultation requirements of clause 35 of the Award. However, I wish to underscore my concerns that the Respondent seems to have formed a view that employees are required to initiate consultation discussions. This is plainly not the requirement under the Award.

NOTE: Redundancy pay is provided for in the NES. See sections 119 to 123 of the Act.

39.1 Transfer to lower paid duties on redundancy

(a) Clause 39.1 applies if, because of redundancy, an employee is transferred to new duties to which a lower ordinary rate of pay applies.

(i) give the employee notice of the transfer of at least the same length as the employee would be entitled to under section 117 of the Act as if it were a notice of termination given by the employer; or

(ii) transfer the employee to the new duties without giving notice of transfer or before the expiry of a notice of transfer, provided that the employer pays the employee as set out in clause 39.1(c).

(c) If the employer acts as mentioned in clause 39.1(b)(ii), the employee is entitled

to a payment of an amount equal to the difference between the ordinary rate of pay of the employee (inclusive of all-purpose allowances, shift rates and penalty rates applicable to ordinary hours) for the hours of work the employee would have worked in the first role, and the ordinary rate of pay (also inclusive of all-purpose allowances, shift rates and penalty rates applicable to ordinary hours) of the employee in the second role for the period for which notice was not given.

39.2 Employee leaving during redundancy notice period

(a) An employee given notice of termination in circumstances of redundancy may terminate their employment during the minimum period of notice prescribed by section 117(3) of the Act.

(b) The employee is entitled to receive the benefits and payments they would have

received under clause 39 or under sections 119 to 123 of the Act had they remained in employment until the expiry of the notice.

(c) However, the employee is not entitled to be paid for any part of the period of notice remaining after the employee ceased to be employed.

(a) Where an employer has given notice of termination to an employee in circumstances of redundancy, the employee must be allowed time off without loss of pay of up to one day each week of the minimum period of notice prescribed by section 117(3) of the Act for the purpose of seeking other employment.

(b) If an employee is allowed time off without loss of pay of more than one day

under clause 39.3(a), the employee must, at the request of the employer, produce proof of attendance at an interview.

(c) A statutory declaration is sufficient for the purpose of clause 39.3(b).

(d) An employee who fails to produce proof when required under clause 39.3(b) is not entitled to be paid for the time off.

(e) This entitlement applies instead of clause 38.2.

[126] I note that if the Applicants had waived the repudiation and accepted the transfer, they would, in my view have been entitled to payment under cl. 39.1.

[127] As to clause 39.3, the Respondent argues that it allowed the Applicants to attend meetings and interviews with RACQ.[22] The Applicants contest this, saying that they attended their interviews with Club Assist during their rostered time off. I note employees were offered a $750 incentive to maintain a 90% KPI and not take more than one day of sick leave during the notice period. As per the Award, the Applicants were entitled an opportunity to attend job interviews up to one day a week during their paid rostered hours. However, there is also no indication that the employees asked to be released to attend interviews during their rostered hours. There is not enough evidence to substantiate a finding that clause 39 was not complied with.

[128] I have found that the Applicants were terminated at the Respondent's initiative and are therefore entitled a redundancy payment under s.119(1) of the Fair Work Act. I must emphasise that this decision turns on its facts and that not every variation of an employee's duties will result in a finding that the employee has been terminated.

[129] I have advised the Respondent previously to lodge a s.120 application in the Fair Work Commission.

[130] My answer to the question for arbitration is as follows:

Michael John Carroll; Benjamin Lettres; David William Jones; Johnnie Wayne Collis; Michael William Davidson; Scott Menzel v Madill No. 1 Pty Ltd [2025] FWC 1305

At a glance

Court

Decision date

Source

Judgment (218 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (6)

Michael John Carroll; Benjamin Lettres; David William Jones; Johnnie Wayne Collis; Michael William Davidson; Scott Menzel v Madill No. 1 Pty Ltd [2025] FWC 1305 (11 June 2025)