1
Fair Work Act 2009
s.365—General protections
Samantha Gurrier-Jones
v
OSM Australia Pty Ltd
(C2024/4780)
DEPUTY PRESIDENT O’KEEFFE PERTH, 14 NOVEMBER 2024
Alleged dismissal involving general protections – jurisdictional objection: employee not
dismissed - jurisdictional objection dismissed.
[1] Samantha Gurrier-Jones (the Applicant) has applied to the Fair Work Commission
(FWC) under s.365 of the Fair Work Act 2009 (Cth) (the Act) alleging she was dismissed in
breach of the general protections provisions of the Act by OSM Australia Pty Ltd (the
Respondent). The Respondent objects to the FWC dealing with the application on the basis
that it did not dismiss the Applicant.
Background
[2] Briefly, the case involves a scenario where the Applicant had concerns about the role
into which she was placed upon return from her parental leave, and the non-payment of her
Short-Term Incentive bonus (STI) for the year ended December 2023. The Applicant’s case
is that she should have been paid the bonus, which was potentially worth $22,050 and she
claims that the role into which she was placed upon return from her personal leave was not the
role to which she was entitled – being her pre-parental leave position.
[3] In June 2023 the Applicant’s lawyers wrote to the Respondent claiming that there was
a breach of contract due to non-payment of the STI and the failure to comply with the
requirements of s.84 of the Act with respect to return to her pre-parental leave position. The
Respondent denied any wrongdoing, claiming that the position specified by the Applicant’s
lawyers as her pre-parental leave position was not her actual pre-parental leave position. It
further claimed that the STI was - as per the terms of the Applicant’s employment contract –
entirely discretionary.
[4] Following this rebuttal, the Applicant’s lawyers wrote to the Respondent’s lawyers
and set out the Applicant’s terms for resolution. The parties are at some level of disagreement
over the effect of the wording of that letter. However, the result was that the Respondent’s
lawyers wrote to the Applicant’s lawyers advising that they accepted her notification of
termination of her employment. Thereafter the Applicant filed the application that gives rise
to this decision.
[2024] FWC 3154
DECISION
AUSTRALIA FairWork Commission
[2024] FWC 3154
2
Chronology of relevant events
[5] The two central issues in the cessation of the Applicant’s employment were the role
into which she was placed upon her return from maternity leave and the non-payment of her
STI for the year ended December 2023. To assist in my analysis of the events that led to the
cessation of that employment I have found it helpful to set out a chronology of those events,
based on the evidence provided by the parties. Where there was some disagreement over the
facts, I have noted this and the reason for my finding. The chronology is as follows:
11 April 2022: The Applicant was engaged by the Respondent as its Operations
Manager.
21 May 2023: The Applicant informed her direct manager Mr Jeff Summers that she
was pregnant and planning to take maternity leave from November
that year.
7 June 2023: The Applicant met again with Mr Summers and at that meeting Mr
Summers canvassed with the Applicant a move into a new role of
Project Manager. This role was described as being one that held some
potential benefits in terms of flexibility of work arrangements.
The Applicant agreed to that change. The Applicant’s evidence was
that the change was due to take effect when she returned from parental
leave. The Respondent’s evidence was that the Applicant was to take
up the role as soon as possible and before she started her parental
leave.
I have formed the view that the intention was for the Applicant to take
up the role as soon as possible and that she did so. I note that in
evidence was an email sent be the Applicant to colleagues on 17 July
2024 wherein she states in part:
“Lauren Watkins has joined us as Operations Manager,
replacing myself, I won’t be leaving OSM, however I will be
moving into a new Project Management (sic), before I go on
maternity leave in November…”1
Also in evidence was a memo sent by the Applicant to clients of the
Respondent confirming her move into a Project Management role,
plus two emails from the Applicant – one later in July and one in
September – where her email signature listed her as “Project
Manager”. While I accept that the Applicant in all likelihood spent a
good deal of her time between Mr Watkins’ commencement and her
own departure on parental leave assisting first Ms Watkins and then
Ms Jewson to learn the Operations Manager role, I am satisfied that
she had in effect moved into the Project Manager role. Indeed, under
cross examination by the Respondent, the Applicant conceded that
when Ms Jewson commenced in the Operations Manager role her own
role was Project Manager. I further note the unchallenged evidence of
Mr Summers that neither Ms Watkins or Ms Jewson were engaged as
[2024] FWC 3154
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parental leave relief but rather engaged to be the Operations Manager
on a permanent basis.
Approximately Mid- Lauren Watkins commences as Operations Manager.
July
6 September 2023: The Applicant is informed that Ms Watkins will no longer be
performing the Operations Manager role. The Applicant takes on the
duties of the Operations Manager role while a replacement for Ms
Watkins is sought.
2 October 2023: Ms Jewson commences as Operations Manager and the Applicant
performs a handover.
13 October 2023: The Applicant’s last day of work prior to commencing parental leave.
10 January 2024: The Applicant sends a text to Mr Summers asking about the STI bonus.
Mr Summers undertakes to speak to Mr Munyard - the Managing
Director of the Respondent - and then advise the Applicant of the
outcome.
16 January 2024: Having had no response to her text of 10 January, the Applicant again
texts Mr Summers about the STI bonus but gets no reply. The
Applicant confirmed in her evidence that prior to the sending of the
letter from her lawyers, this matter was not raised again.
14 February 2024: The Applicant sends a text to Mr Summers asking about making an
early return from parental leave on 22 April 2024.
15 February 2024: Mr Summers responds and says he will discuss it internally and get
back to the Applicant.
19 February 2024: In response to a text from the Applicant, Mr Summers calls her and it is
agreed that the Applicant will return from parental leave on 22 April
2024 and that she will work part time at four days per week.
22 April 2024: The Applicant returns to work. She has a meeting with Mr Summers at
which she is advised that her role will be Workforce Planning Manager
reporting to the Operations Manager Ms Jewson instead of himself, as
had been the proposed arrangement for the Project Manager role. The
Applicant objects to this change in reporting and her evidence given at
hearing was that Mr Summers agrees to have the reporting line changed
so that the Applicant would report directly to him.
The Applicant’s evidence is that she also regarded the Workforce
Planning Manager role as narrower in scope than the Project Manager
role and with less flexibility for working times. This was due to the
role being more involved in day-to-day demands and operations.
[2024] FWC 3154
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15 May 2024: The Applicant meets with Mr Summers who advises her that she will
receive a letter outlining the changes to her role. The Applicant’s
evidence is that she complained that the job was not the role – being
Project Manager - that had been discussed with her prior to her parental
leave. She also reiterated her concerns regarding reporting lines, which
had not been changed.
The Applicant received an email from Mr Summers after that meeting
which set out the terms of her role as Workforce Planning Manager.
The role provided the same remuneration and conditions as her
previous roles as Operations Manager and Project Manager. In part,
the letter stated as follows:
“Following recent changes and growth of the business, your Position
will be amended from Project Manager to Workforce Planning
Manager in order to assist the business with recruitment and planning
the workforce which is as per your skills and experience in the
industry.”2
31 May 2024: The Applicant’s lawyers write to the Respondent outlining concerns
about the non-payment of the STI bonus and the change to her role and
citing pregnancy discrimination as the reason. The Respondent’s
lawyers write to the Applicant’s lawyers denying any breaches of
contract or pregnancy discrimination.
19 June 2024: The Applicant’s lawyers write to the Respondent’s lawyers stating in
part as follows:
“We are instructed to hereby demand:
1. Confirmation that our client is able to return to her pre-parental
leave role of Operations Manager; and
2. Payment of our client’s STI payment.
If we do not have the confirmation and payment sought by 5pm on 21
June 2024 we have instructions to accept your client’s illegal conduct
as terminating our client’s employment agreement in which case she
will commence general protections proceedings”3
21 June 2024: The Respondent’s lawyers write to the Applicant’s lawyers stating – in
part – as follows:
“In relation to the demands made by your client in Your
Letter our instructions are as follows.
• The Operations Manager role that your client is now seeking, is
not the pre-maternity leave role as asserted by Your Letter.
Further, any part time role performed after a period of
maternity leave by agreement with an employer cannot be
considered the same as a full-time pre-maternity leave role.
[2024] FWC 3154
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• Your client has no entitlement to be paid an STI bonus, only
to “participate in a Bonus Scheme’ pursuant to clause 3.7 of
your client’s employment contract (Contract). The payment of
any bonus to your client is completely discretionary. Any
payment of a bonus to your client in a prior year does not create
an entitlement or obligation to make a bonus payment to your
client in any subsequent year (see clause 3.7 of the Contract).
• In the absence of a demonstrable damage and proven
differential treatment on the basis of a protected attribute,
your client’s claim of alleged unlawful discrimination will also
fail.
OSM denies that it has engaged in any illegal conduct and will not
agree to your client’s demands because it has complied with your
client’s employment contract at all relevant times and will continue
to do so. Accordingly, your client’s decision to terminate the
employment contract effective 5.00pm (AWST) today is a decision
made at her own initiative.
OSM has instructed us that it accepts your client’s notification of
the termination of her employment, without provision of the
required notice, which will end at 5 pm (AWST) today, 21 June
2024.”4
Submissions – repudiation of contract.
[6] In her initial submissions the Applicant made two arguments to propose that her
dismissal was at the initiative of the Respondent. She firstly addressed the concept of forced
dismissal but also made submissions with respect to repudiation of contract. In essence, the
original written submissions argued that if the FWC were to find that the letter of 19 June
2024 did indeed communicate an acceptance of the termination of employment, it did so by
way of the Applicant accepting the Respondent’s repudiatory conduct.
[7] This submission was, however, premised on the ground that the Applicant was entitled
to be placed – post-parental leave – into the position of Operations Manager, which the
written submissions argued was her pre-parental leave position. However, the Applicant did
argue that in the alternative, if her pre-parental leave role was actually Project Manager, then
she had been denied this position by virtue of having effectively returned her to the role of
Workforce Planning Manager. It was submitted that this was a role that was substantively
and fundamentally different to the role of Project Manager.
[8] As such, the Applicant claimed that the Respondent had, by failing to return the
Applicant to her pre-parental leave position and issuing a contractual variation, “breached and
evinced an objective intention to no longer be bound by the Employment Agreement, the
probable result of which was the end of the Employment Agreement.” Further, the test of
whether this had occurred was not to examine the Respondent’s actual or subjective intention
but rather to look to what a reasonable person would objectively regard as repudiatory
conduct. The Applicant relied upon the findings in Elgammel v BlackRange Wealth
Management,5 Owens v Allied Express Transport Pty Ltd,6 (Owens) and Barkla v G4S
Custodial Services Pty Ltd7 as support for these propositions.
[2024] FWC 3154
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[9] At hearing, the Applicant advised that she was shifting the emphasis of her
submissions such that repudiation became the primary ground of her argument. At hearing,
she submitted that the repudiatory conduct was the involuntary variation of the Applicant’s
position and the non-payment of the STI bonus. The letter from the Applicant’s lawyers on
19 June 2024 was said to be putting in motion the Applicant’s acceptance of that repudiation.
In further submissions at hearing the Applicant traversed the findings in Owens and the appeal
of that decision. In doing so, the Applicant also challenged the notion that her case ought to
be distinguished from Owens because unlike the situation in that case there had been no actual
variation to her employment. The Applicant submitted that although the remuneration had
not changed there was nonetheless a practical change to the nature of her duties and reporting
structure that had been implemented in spite of her not signing the variation letter.
[10] The Applicant also drew my attention to the findings of the Full Bench in Allied
Express Transport Pty Ltd v Owens where the Full Bench rejected the position put by the
Company in that case that the employee had options to choose between. Given that one of the
options paid significantly less than her current remuneration the Full Bench said that the
employee effectively had no option and a reasonable person would then conclude that the
Company did not intend to abide by the employee’s employment contract. As a consequence,
there was a repudiation. The Applicant proposed that in her case, there was not even the
illusion of choice as the move into the Workforce Planning Manager role was essentially
presented as a fait accompli.
[11] The Applicant also addressed the failure to pay the STI bonus. She submitted that the
Respondent was relying heavily on the caveat contained within the STI bonus clause in her
contract to the effect that any payment was discretionary. The Applicant directed my
attention to the findings in Silverbrook Research Pty Ltd v Lindley (Silverbrook) for the
proposition that such a reliance was misplaced. In that matter, President Allsop stated as
follows:
“That the decision as to whether the respondent should receive the bonus was
“entirely within the discretion of” the appellant should not be construed so as
to permit the appellant to withhold the bonus capriciously or arbitrarily or
unreasonably; it should not be construed so as to give the appellant a free
choice as to whether to perform or not a contractual obligation. The relevant
discretion should be understood against the proper scope and content of the
contract. This was a bargained for bonus to be assessed against set
objectives. Such a clause should receive a reasonable construction and not
permit the appellant to choose arbitrarily or capriciously or unreasonably that
it need not pay money the set objectives having been satisfied…
The discretion is to be exercised honestly and conformably with the purposes
of the contract. There may be many circumstances in which it would be
legitimate, and conformable with the purposes of the contract, not to pay the
bonus. There may be financial stringency or misbehaviour by the respondent
or some other consideration. It is unnecessary to explore the possibilities in
detail. What, however, would not be permitted is an unreasoned,
unreasonable, arbitrary refusal to pay anything, come what may. This would
be a denial of the very clause that had been agreed.”8
[2024] FWC 3154
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[12] The Applicant submitted that the requirements of the bonus clause were such that
Respondent was required to assess her performance, and that of the Respondent itself, against
objective criteria and to then exercise its discretion – and not in an unreasonable or capricious
manner – to decide how much bonus to pay. The Applicant submitted that there was no
suggestion that any of these tasks was undertaken and directed my attention to the evidence
provided by Mr Summers at hearing. Specifically, it noted that Mr Summers had conceded
that there had been no review or round out of the 2023 years, that there were no performance
concerns at all with the Applicant and that other employees of the Respondent had received
the bonus including himself.
[13] The Applicant noted also that Mr Summers’ evidence regarding the bonus was
incomplete and that he denied being a decision maker with respect to the bonus. As such he
claimed to have no explanation of why the Applicant did not receive a bonus. The Applicant
submitted that it had been open to the Respondent to call Mr Munyard the actual decision
maker to answer questions and it had chosen not to, with no suggestion that he was
unavailable. The Applicant submitted that it was therefore open to me to draw a Jones and
Dunkel inference from Mr Munyard’s absence. In summary, the Applicant submitted that the
Respondent had failed to perform an assessment of the Applicant’s performance and its
decision not to pay the bonus should be regarded as arbitrary and capricious.
[14] The Applicant also addressed the contention from the Respondent that in any case the
failure to pay the bonus would not amount to repudiation given that the bonus was not central
to the contractual arrangements. The Applicant submitted that the bonus was worth fifteen
percent of her remuneration, being an amount of approximately $25,000. In her submission,
the fact that this amount was not part of her base salary per se should not mean that it was not
a core and critical part of the contract such that a breach of it could not amount to repudiation.
[15] With respect to the issue of repudiation, the Respondent in its written submissions
noted that its primary argument was that there was no dismissal within the scope of s.386(1)
of the Act. However, it submitted that there had in any case been no repudiation of the
Applicant’s contract. To support its position, the Respondent directed my attention to the
summary of the doctrine of repudiation provided by the High Court in Koompahtoo Local
Aboriginal Land Council v Sanpine Pty Limited (Koompahtoo). In that case, the High Court
stated as follows:
“The term repudiation is used in different senses. First, it may refer to conduct which
evinces an unwillingness or an inability to render substantial performance of the
contract. This is sometimes described as conduct of a party which evinces an
intention to no longer be bound by the contract or to fulfil it only in a manner
substantially inconsistent with the party’s obligations. The test is whether the conduct
of one party is such to convey to a reasonable person, in the situation of the other
party, renunciation either of the contract as a whole or of a fundamental obligation
under it. […] Secondly, it may refer to any breach of contract which justifies
termination by the other party.”9
[16] The Respondent submitted that there was no evidence of conduct by it which could
convey to a reasonable person, that it intended to renunciate the Applicant’s employment
contract either in its entirety or in some fundamental part. Rather, the Respondent had, until
the Applicant gave her ultimatum, remained ready, willing and able to perform its obligations
under that contract. In the Respondent’s submissions the decision to not accede to the
[2024] FWC 3154
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Applicant’s demands – which it submitted were not grounded in contract or reality – did not
demonstrate an intention not to be bound by the Applicant’s employment contract.
[17] In further submissions at hearing, the Respondent contended that, with respect to the
position held by the Applicant, there had in fact been no change. Rather, the Respondent had
attempted to make a change to the Applicant’s role from Project Manager to Workforce
Planning Manager but that this offer of changed employment had been rejected by the
Applicant and thus never actually given effect. The Respondent submitted that there had been
no change to the Applicant’s remuneration, no significant change to the duties actually
performed and that the case for change was really centered around a change in reporting
structures. The reporting lines within the Respondent’s operations was submitted to be a
matter that was not fundamental term of the employment contract.
[18] With respect to the STI bonus, the Respondent conceded that the bonus had not been
paid, but submitted that again, the STI bonus was not a fundamental term of the contract.
While the Respondent denied the non-payment was a breach, it proposed that if there was a
breach it was a contravention of a warranty, rather than of a condition of the employment
contract. The Respondent contended that the bonus should be considered a discretionary
benefit rather than an essential term and thus a breach would not give rise to an ability to treat
the contract as being at an end.
[19] The Respondent then turned to the process by which the employment relationship
came to an end – a process it contended began with the Applicant’s ultimatum regarding her
position and the STI bonus. It submitted that the FWC should have regard to the conduct that
took place at the relevant time, rather than accepting what it described as a “pivot” in the
Applicant’s argument at hearing. In essence, the Respondent submitted that the claim made
by the Applicant at the relevant time was to return to the role of Operations Manager, which
was a role occupied by Ms Jewson and not a claim that the Respondent could be expected to
meet.
[20] The demand from the Applicant could thus be viewed as requiring that two conditions
– one a condition that could not be met and the other purely discretional – be met in order to
preserve the employment relationship. Additionally, the wording of the Applicant’s lawyer’s
letter was such that the relationship automatically ended if those two conditions were not met
by the appointed time. In summary, the Respondent submits that it did not engage in
repudiatory conduct in failing to meet those two conditions because they were not required to
be met. Further, it submits that it may be open to conclude that the Applicant’s own actions
in demanding those two outcomes without any entitlement or she would end the employment
might suggest that she herself had engaged in repudiatory conduct.
[21] Finally, the Respondent addressed the issue of my drawing a Jones v Dunkel inference
from the absence of Mr Munyard. It submitted that the reason for the non-payment of the
bonus went to the heart of the merits argument about general protections, but that the
jurisdictional hearing was confined to a determination of whether there had been a dismissal.
As such, the Respondent had not felt it necessary to call Mr Munyard and as such it was not
appropriate to draw a Jones v Dunkel inference.
Consideration
[2024] FWC 3154
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[22] I think it is appropriate that before I discuss my findings, I make a comment about the
industrial strategy employed by the Applicant’s lawyers in this matter, noting that those
lawyers did not represent her at hearing. The Applicant was faced with – on the basis of the
case she has argued – firstly the non-payment of a bonus and secondly being moved into a
position that was not consistent with her pre-parental leave position upon her return from such
leave. In both cases, there were avenues to pursue those grievances available to her that did
not rely on placing the future of her employment in jeopardy. Complaints could have been
made with respect to each of those two discreet issues in a variety of ways without the
prospect of the ending of her employment ever being threatened or even arising. Instead, her
lawyers appear to have advised or allowed her to engage in a very high stakes game where the
potential – and indeed eventual – outcome was the ending of her employment. I make no
criticism of the Applicant herself for taking this course of action, but I must confess to being
astounded that a legal practitioner regarded this as an appropriate way to deal with the
Applicant’s concerns – particularly in the first instance.
[23] Having said that, I must now consider carefully the effect of what transpired and what
it suggests about the ending of the Applicant’s employment. In the first instance, I propose to
look at the issue of the position to which the Applicant returned after her parental leave. I am
satisfied that the Applicant left on parental leave occupying the role of Project Manager, albeit
that she may have spent a good deal of time immediately prior to such leave performing
Operations Manager work due to the inexperience of new appointees to that role.
Nevertheless, those appointees were appointed to the role of Operations Manager on a
permanent basis, and not as parental leave relief, which suggests to me that the intention of
both parties was always that the Applicant would move into the Project Manager role.
[24] Given this, what is to be made of the Respondent’s clear intention to have the
Applicant work as Workforce Planning Manager upon her return from parental leave. In the
first instance, I am not persuaded that I should accept the Respondent’s submission that the
change was only proposed and not given actual effect because the Applicant did not sign the
new contract. It appears that the role of Planning Manager was one that was not rigidly
defined and that prior to commencing parental leave the Applicant was probably engaged
more in assisting the Operations Manager than as Project Manager. Given this, there may
have been some question as to the exact duties that may have been required of the Project
Manager at the time the Applicant returned from parental leave.
[25] However, while such duties may not have been clearly defined, it does appear to me
that the Workforce Planning Manager role did have clear duties that were required to be
performed, and it was those duties that the Applicant did perform on her return. As such, I do
not accept that there was no change. However, the issue that I believe needs to be considered
is the relevance of that change. In the first instance, there was no change to the Applicant’s
remuneration, save that – consistent with her request – she was only working part time.
[26] The issue of the reporting lines is, in my view, not particularly relevant. Even if there
was a change in the reporting lines, I do not think this is a significant change to the role.
While the Applicant may claim it is suggestive of a lessening in her status, I am not persuaded
in the circumstances that this is the case. The Respondent’s management structure, based on
the organisational chart that was in evidence, is quite small and does not appear to be as
rigidly hierarchical as one might find in a large company or government bureaucracy. As
such, I do not accept that the change in reporting lines is such as to represent a change that
would amount to a repudiation of an employment contract. Finally, I also note that the
[2024] FWC 3154
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Applicant’s original employment contract provides that the employee’s reporting lines may
change from time to time.10 There may be some argument as to the applicability of this
contract, as it applies to a former position. However, I note that there was no new contract
issued for the Project Manager role meaning that potentially the terms of the previous contract
which are not relevant to the specifics of the new role might still be said to apply.
[27] Nor am I persuaded in this instance by the notion of the change to duties. Given the
somewhat flexible nature of the Project Manager role, it is open to conclude that at least some
if not all of the duties performed in the Workforce Planning Manager role could have been
performed – at least for a time – by the Project Manager. In other words, the first project for
the Project Manager might have been to oversee workforce planning. The general approach
of courts has been that variations to duties may constitute a change in the role and mean that
in effect a new set of contractual arrangements is being applied. In each case it is a matter of
fact as to whether the change is sufficiently significant to represent such a change. However,
I am not persuaded that the duties – particularly given the lack of a definitive job description
for the Project Manager – of the Workforce Planning Manager constitute such a change.
[28] The Applicant also argued that there was not as much flexibility in working hours in
the Workforce Planning Manager role as had been suggested there would be for the Project
Manager. However, there is no suggestion that the hours required in the role were more than
those required in the Project Manager role as that role was envisaged. There is also no
evidence that the Applicant had encountered any difficulties with the working hours as they
were presumably – again save for the part time element – similar to what she had worked
throughout her time with the Respondent.
[29] Finally, with respect to the process of the ending of the Applicant’s employment, I
accept the submission of the Respondent that the FWC should look to what actually happened
at the time, rather than how the issue is presented at hearing. The Respondent was asked to
return the Applicant to the role of Operations Manager - a position that she did not hold prior
to departing on parental leave. What the Respondent did on receipt of the ultimatum from the
Applicant’s lawyers was to refuse to comply with a demand that it was not legally obligated
to meet. As such, no matter how the repudiation claim with respect to the Applicant’s
position might be framed, I find it must fail. If the repudiation is to be said to be the change
from the Operations Manager role, the claim fails on factual grounds. It the repudiation is
said to be the change to the Workforce Planning Manager role, it fails for the reasons set out
at paragraphs 25 to 28 above. If the repudiation is said to be the Respondent’s failure to
accept the Applicant’s demands in circumstances where it was not obliged to meet them,
again the claim fails.
[30] I then turn to the issue of the non-payment of the bonus. Here I draw a different
conclusion. From the material submitted and the evidence given, I make the following
findings about the bonus. In the first instance, given that employees including Mr Summer
received the bonus, I have concluded that the Respondent met whatever company KPIs had
been set and therefore the Applicant could not be denied the bonus on that ground. I note this
is also the case if the Respondent had not even set any company KPIs given other employees
received the bonus.
[31] I also find that the process of administering the bonus was somewhat fluid. The bonus
was apparently not such that there was intention to apply a rigorous and scientific assessment
of the Applicant’s performance when determining if she should receive the bonus. With
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respect to her performance, it is clear that there were no annual set KPIs for the Applicant by
which she could in any case be judged to determine if she qualified for the bonus. Despite
this, there is no suggestion that she would not be considered for the bonus because there were
no KPIs set.
[32] I also observe that there had been no concerns whatsoever raised with the Applicant
about her performance and she was therefore entitled to conclude – for the purposes of the
bonus at least - that no such concerns existed. Given that, it was reasonable for the Applicant
to expect that she would be paid the bonus. I also observe from her messages with the
Respondent that she had factored the payment of the bonus into her discussions with
Centrelink regarding parental leave payments.11
[33] I do not accept the notion from the Respondent that the STI bonus should be regarded
as a peripheral or non-essential part of the contract. Although different figures were proffered
at hearing, I find that the bonus was worth fifteen percent of the cash component of the
Applicant’s salary, which I find to be $147,000.00. The bonus is thus worth $22,050.00. I
regard this as a significant sum of money, a significant part of the remuneration package for
the job and a sum to which the Applicant had quite understandably believed she was entitled.
[34] I should also address the notion that I should draw a Jones and Dunkel inference from
the fact that no-one who was a decision maker on payment of the bonus was called to give
evidence. I note the Respondent’s submissions that this was because the reason for non-
payment was regarded a matter for the merits argument on the general protections breach
rather than for the determination of the status of the dismissal. I find this a rather curious
argument. The Respondent was clearly alive to the notion of forced dismissal – being where
the employer behaves in such a way as to give the employee little option other than to resign.
It was clearly the case that the non-payment of the bonus formed part of the Applicant’s
argument about forced resignation, at least in the first instance in its written submissions.
[35] Given this, I would have thought that the reason for non-payment of the bonus was an
issue with which the Respondent might have engaged. If the Applicant had no entitlement to
the bonus because she did not qualify then surely this was a relevant part of the Respondent’s
defence – “we have not acted unreasonably in denying you the bonus because based on the
following criteria you do not qualify”. Not paying an employee a bonus for which they do not
qualify is hardly poor behaviour. On the other hand, not paying an employee a bonus for
which they do qualify is behaviour in a different category.
[36] The Respondent might be tempted to – and did – argue that this is not relevant because
the bonus was entirely discretionary. To this I would say that I adopt without hesitation the
approach taken in Silverbrook. Discretion should not be applied in a capricious, arbitrary or
unreasonable manner. If an employee qualifies for a bonus by meeting whatever criteria are
required then it is only in rare circumstances that the employee would not be paid, even if
discretion is reserved in their contract. To have a situation where an employee qualifies but is
not paid when other employees are paid is to have a situation that is going to raise the ire of
the employee who misses out and lead – particularly in the absence of any compelling
explanation - to assumptions of capricious behaviour.
[37] In this matter I have decided to err on the side of caution. As such, I will accept that
the absence of a witness who could provide insight into the reason for non-payment of bonus
was a decision made by the Respondent’s representatives based on a particular view of the
[2024] FWC 3154
12
actual matter at issue and I will not draw a Jones v Dunkel inference. However, I summarise
my findings on the non-payment of the bonus as follows.
[38] The bonus is a significant part of the Applicant’s remuneration package. I do not
accept that it is merely an ancillary term, but rather I find that it is a fundamental term of the
Applicant’s employment contract. There is no reason offered as to why the bonus was not
paid in a situation where there were no KPIs to assess, other employees received the bonus
and the Applicant was entitled to have a reasonable expectation that it would be paid.
Clearly, a decision was made not to pay the bonus. I make no assessment of what motivated
that decision. However, I cannot accept it was because the Applicant did not, using the
criteria set out in her contract, qualify for the bonus and I do not accept that it was reasonable
to rely on the discretion conferred by the contract.
[39] I am thus left to assess, consistent with Koompahtoo, what a reasonable person
standing in the Applicant’s shoes would make of the non-payment of a $22,050 bonus
(representing fifteen percent of cash salary) in circumstances where there is no apparent
reason for the non-payment and other employees received their bonus. I find that such a
person would say that the Respondent had demonstrated that it did not intend to be bound by
a fundamental part of the employment contract. In so finding I conclude that the Respondent
has engaged in behaviour that amounts to repudiation of the Applicant’s employment
contract. Such repudiation was accepted by the Applicant but the termination of her
employment was at the initiative of the Respondent. The FWC therefore has jurisdiction to
deal with the Applicant’s s.365 application and a conference to discuss settlement will be
listed and the parties advised of the details.
DEPUTY PRESIDENT
Appearances:
A White of Counsel for the Applicant.
J Parkinson of Counsel for the Respondent.
Hearing details:
2024.
Perth (by video):
October 25.
Printed by authority of the Commonwealth Government Printer
PR781276
TE FAIR WORLE SOMECCION
[2024] FWC 3154
13
1 Court Book page 159
2 Court Book page 106
3 Court Book page 108
4 Court Book page 110
5 Elgammel v BlackRange Wealth Management [2011] FWAFB 4038 at [13]
6 Owens v Allied Express Transport Pty Ltd [2011] FWA 1058 at [58]
7 Barkla v G4S Custodial Services Pty Ltd [2011] FWAFB 3769 at [24]
8 Silverbrook Research Pty Ltd v Lindley [2010] NSWCA 357 at [5] and [6]
9 Koompahtoo Local Aboriginal Land Council v Sanpine Pty Limited (2002) 233 CLR 115 at [44]
10 Court Book page 72 section 2 paragraph 1
11 Court Book Page 100
https://www.fwc.gov.au/documents/decisionssigned/html/2011fwafb4038.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2011fwa1058.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2011fwafb3769.htm
