This is an extract from a decision of the Federal Court which deals with several of the important legal issues involved in general protections cases.
“The terms of the agreement(s) between the parties
258 The first set of issues concerns what the parties did in fact agree at or after the time at which the 2021 Fair Work Proceedings brought by Mr Chambers and Ms O’Brien were discontinued in October 2022.
The parties’ cases
259 It will be recalled that by the time of closing submissions, Mr Chambers’ case was that a single agreement was made covering both the settlement of the disputes between the parties (including Ms O’Brien) and Mr Chambers’ future employment. His case is that this agreement was made at the meeting of 18 October 2022 and that the existence of the agreement was confirmed in the subsequent email exchange of the same date. According to Mr Chambers, the conciliation conference of 21 October 2022 only led to a change in the split of payment of the $500,000 and to agreement about the preparation of the documentation, with no other changes to the agreement formed on 18 October 2022.
260 Mr Chambers relies heavily on the email exchange of 18 October 2022. He submits that Mr Basso’s assent to the summary that Mr Chambers sent to him shows that an agreement had been reached between the parties. Mr Basso’s only reservation concerned the manner of payment of the agreed $500,000. Mr Chambers submits that this indicates that there had been a meeting of minds, including in relation to his employment for a minimum term of four years at $180,000 per year.
261 Mr Chambers further submits that there was a single agreement, comprised of the lump sum settlement amount of $500,000 and the agreement to employ him. He submits that there was agreement on all matters necessary for the formation of a legally binding contract.
262 Mr Chambers submits that the fact that he and Ms O’Brien took steps to discontinue their respective legal proceedings soon after the 21 October 2022 conciliation conference supports a conclusion that an agreement was formed at that conference. He makes the same point about the undisputed fact that Broadway Homes began paying instalments on the $500,000 lump sum in late 2022.
263 The respondents submit that at the time of the 21 October 2022 conciliation conference, there were some significant matters that were not agreed, in particular the terms on which Mr Chambers would be re-employed. More broadly, the respondents’ position is that there was no employment agreement formed before 9 January 2023, when Mr Chambers started work at Katura Homes. They submit that missing from the terms agreed were important matters such as the amount of the remuneration and the term of the agreement; the respondents also say there was no agreement of a fixed term of four years.
264 The respondents accept that when Mr Chambers commenced work for Broadway Homes on 9 January 2023, he did so pursuant to an employment relationship that was, necessarily, a contractual relationship. But it was a contract that came into existence at that point, when Mr Chambers started working as an employee, not before. And they submit that in the absence of actual agreement as to important terms, Mr Chambers was entitled to remuneration based on the higher of quantum meruit or the statutory minimum rate of pay. The quantum meruit rate for which they contend, $1,000, is higher than the minimum as determined in accordance with Pt 2-6 of the FWA.
265 As to the reasonable notice of termination which, the respondents say, was Mr Chambers’ entitlement, they submit that in the circumstances of his employment, reasonable notice was two weeks. Those circumstances are: his relatively low level of remuneration, the absence of supervisory responsibilities, and the absence of a budget or broader organisational responsibilities.
Legal principles
266 The general principles as to the formation of a contract and ascertainment of its terms are well-established and not in dispute. The starting point here is that any contract formed was not contained in a document, and the documents that evidenced it are few (it will be cumbersome to keep referring the contract or contracts so henceforth I will use the singular only, except where necessary). If there was a contract formed, it was formed orally or perhaps by conduct.
267 The essence of contract is the voluntary assumption of a legally enforceable duty, which requires identifiable parties to the arrangement, certain terms and real consideration and a mutual intention to subject the agreement to the adjudication of the courts: see Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95 at [24] (Gaudron, McHugh, Hayne and Callinan JJ). There was no issue in this case that the last of these requirements has been met. But there is real uncertainty as to who were the parties to the arrangement, what were its terms, and what consideration was to be flowing from each side. There is a question of fact as to whether the parties reached agreement about the obligations they were each to assume, at all.
268 It is trite, but important to this case, that an intention to create contractual relations requires an objective assessment of the state of affairs between the parties, as distinct from uncommunicated subjective intentions: Ermogenous at [25]. It is necessary to have regard to the intention disclosed by the language the parties have employed; it is necessary to look at ‘the communications between the parties in their context and the parties’ dealings over the time leading up to the making of the alleged contract’: Pavlovic v Universal Music Australia Pty Ltd [2015] NSWCA 313; (2015) 90 NSWLR 605 at [15] (Bathurst CJ, and see also Beazley P at [65]).
269 This analysis need not proceed on the basis of the conventional framework of analysis of offer and acceptance, since:
if it can be stated with confidence that by a certain point the parties mutually assented to a sufficiently clear regime which must, in the circumstances, have been intended to be binding, the court will recognise the existence of a contract.
Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 at [369] (Allsop J).
270 It is also necessary to recall that, while language is undoubtedly the most common way in which a contract is formed, it may also be inferred from the acts and conduct of the parties as well as or in the absence of their words: Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523 at 528.
271 It is also trite that for there to be a contract, the parties must have actually reached agreement, and a contract will fail for incompleteness where some essential or important part of the bargain has not been agreed: see Feldman v GNM Australia Ltd [2017] NSWCA 107 at [60] (Beazley P, McColl and Macfarlan JJA agreeing), quoting with approval from J W Carter, Contract Law in Australia (6th ed, LexisNexis, 2013) at 91 [4-01].
272 A binding agreement is made when a reasonable person would believe, based on the parties’ words and behaviour, that they intended to contract: John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451 at [93] (Hammerschlag J). In Branir, Allsop J (Drummond and Mansfield JJ agreeing) said at [369]:
… The essential question in such cases is whether the parties’ conduct, including what was said and not said and including the evident commercial aims and expectations of the parties, reveals an understanding or agreement or, as sometimes expressed, a manifestation of mutual assent, which bespeaks an intention to be legally bound to the essential elements of a contract. …
273 In answering such questions, it is necessary to recall the often cited words of McLelland J in Watson v Foxman (1995) 49 NSWLR 315 at 318-319 (concerning misleading or deceptive conduct allegations, but confirmed by his Honour at 319 to be equally applicable to causes of action based on contract and on equitable estoppel):
Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.
274 As to the conduct of the parties subsequent to the alleged formation of the agreement, it cannot be used to inform the proper construction of agreed terms, but it can be relevant to whether there was an agreement or what its terms were: see Fazio v Fazio [2012] WASCA 72 at [192]-[193] (Murphy JA, Pullin and Newnes JJA agreeing) and the authorities cited there.
Analysis
275 In overview, the discussions in October 2022 between Mr Chambers and Ms Basso (and on occasion Ms O’Brien and Mr McLean) unfolded as follows.
The first two meetings in October 2022
276 The meeting of 7 October 2022 did not produce any consensus. It is only relevant in so far as it displayed that Mr Chambers and Mr Basso were prepared to discuss a settlement of the 2021 Fair Work Proceedings that was likely to involve a payment by Broadway Homes on account of unpaid commissions.
277 At the meeting of 13 October 2022, the discussion had evolved to focus on a figure of $500,000 to $550,000 for that payment. The two main witnesses, Mr Chambers and Mr Basso, are largely at one as to that.
278 The idea of Mr Chambers being employed for four years at a salary of $180,000 was also raised at the meeting. Since Mr Chambers has made a note ‘General Manager’ on a piece of paper during the meeting, I am prepared to find that this job title was raised.
279 Mr Basso’s own evidence confirms that Mr Chambers receipt of ‘additional money’ (Mr Basso’s words) of $720,000 was also discussed at the 13 October 2022 meeting.
280 The two main witnesses are also in agreement that the discussion that the employment was to be employment with a ‘new venture’. That finds some independent corroboration in the email that Mr Chambers sent on the same day, referring to the commencement of ‘West End by Broadway’.
281 Nothing turns on who first suggested the idea that Mr Chambers would work for a ‘spin off’ or separate business division and the evidence does not permit a finding. Setting that aside, it is inherently likely that all these proposals for Mr Chambers’ future employment were raised by him and not by Mr Basso. He is likely to have brought up the idea of becoming ‘General Manager’ because he would have been interested in a job title indicative of seniority and responsibility. It does not seem like something that Mr Basso would have suggested unprompted. And for reasons explained in more detail at [90]-[96] above when assessing Mr Chambers’ evidence about the meeting, the general nature of that evidence does not persuade me that Mr Basso actually communicated any offer as to employment terms at the meeting, or that he expressed any assent to, or even interest in the suggestion, which was likely made by Mr Chambers.
282 Also, for reasons explained in connection with the subsequent 18 October 2022 meeting (see [127]-[132] above), I do not find that the two men ever agreed that the intent was that these figures would form part of an overall payment for the purposes of settling the 2021 Fair Work Proceedings. I accept Mr Basso’s evidence that he did not accept that Broadway Homes owed Mr Chambers and Ms O’Brien more than the approximately $426,000 that had been discussed, and that he said so at the meeting of 18 October 2022. That being so, it is inherently more likely that Mr Basso, at least, did frame that component of the discussions as an opportunity for Mr Chambers to ‘earn’ the $720,000 over four years. That is, it was not to be given to him purely in return for releases from the claims made in the 2021 Fair Work Proceedings.
283 It also follows as inherently likely that Mr Basso referred to the new business in the 13 October 2022 meeting as a marketing business that would sell homes. That is likely how he thought that Mr Chambers would earn the $720,000. But neither witness gives evidence that Mr Chambers expressed assent to this.
The 18 October 2022 meeting and emails
284 The meeting of 18 October 2022 is the one where, according to Mr Chambers, the agreement governing his employment (as part of an overall settlement) was made. At [117]-[118] and [122]-[136] above I have explained at some length why I do not accept Mr Chambers’ and Ms O’Brien’s evidence about several aspects of this meeting, and why that evidence does not persuade me that Mr Basso communicated any assent to the proposal that Broadway Homes would pay Mr Chambers $180,000 for four years, regardless of his performance in the job.
285 A further reason why that is difficult to believe is that, even on Mr Chambers’ account of the meeting, they discussed how many houses would need to be built to cover that salary and appear to have discussed commission rates in that regard. That is not a sensible discussion to have if there is no agreement that the remuneration is actually going to be on a commission basis, or any agreement that a sale of a minimum number of homes was in some way a target to be achieved.
286 If these matters are not accepted, very little about Mr Chambers’ account of the meeting remains. It is worth mentioning, however, that even on his version of events, an initial three month start up period was discussed. Again, that makes little sense if there was a guaranteed minimum employment period of four years at $180,000 per year, but makes much more sense if the proposal is that Mr Chambers was to be paid a salary covering that start up period, but thereafter would have to earn money through sales.
287 As for Mr Basso’s evidence of the meeting, as explained above I accept it in so far as it establishes (as does Mr Chambers’ evidence) that they had agreed to a payment of $500,000 for undisputed past commissions, and that there was some discussion as to how that would be split between payments to Jamrok and salary and superannuation to Mr Chambers (on which nothing turns).
288 I also accept Mr Basso’s evidence in so far as it indicates that he proposed that Mr Chambers would have an agreed salary equivalent to $180,000 for the first three months (as has just been said, Mr Chambers himself accepts that a three month period was raised). But, crucially, as stated above, Mr Basso’s evidence does not go so far as to say that Mr Chambers agreed to the terms that Mr Basso proposed, and I consider it unlikely that he did, at least in so far as those terms involved Mr Chambers agreeing to the risk of working on commission, while foregoing any upside above $180,000 for the long period of four years.
289 As a result of my limited acceptance of each witness’s evidence, I do not find that at the end of the meeting there was any meeting of minds on essential terms of Mr Chambers’ proposed employment, including matters as fundamental as how much he was to be paid and how that was to be structured, and what his responsibilities were to be. It also appears from the summary of the evidence above that the identity of the entity that was to employ him had not been agreed.
290 This fundamental uncertainty, and incompleteness in any agreement, is only confirmed by Mr Chambers’ email of 18 October 2022, to which Mr Basso did express agreement. It contained reasonable certainty about the payment of $500,000 (albeit the split between Jamrok and Mr Chambers might have been susceptible to change, as Mr Basso noted in his reply). The reference in the email to Mr Chambers removing ‘all current claims to employee entitlements from Broadway’ can reasonably be construed to refer to releases from the 2021 Fair Work Proceedings.
291 But this is all referred to as an ‘in principle agreement’ the details of which ‘are to be worked out in the coming weeks and potentially with the assistance of Deputy President Binet, of the Fair Work Commission, through the scheduling of a conciliation conference’. And, crucially, what is not mentioned in the email is any agreement as to Mr Chambers’ pay or duties as ‘as General Manager of West End by Broadway’, nor any conditions on which the ‘minimum of 4 years’ employment might be cut short. This confirms that the parties had not reached agreement at the meeting of 18 October 2022 as to essential terms on which Mr Chambers was to be employed.
292 That is enough to conclude, as I do, that Mr Chambers had not made out his case as to the formation of an employment agreement at the 18 October 2022 meeting, or as to the terms of any such agreement as at that date (I have not overlooked the possible relevance of post contractual conduct, but as explained below it does not really advance the position). It also follows from my refusal to accept Mr Basso’s evidence about the remuneration structure, and from the unlikelihood that Mr Chambers expressed assent to Mr Basso’s proposals, that no different agreement had been formed at that meeting.
293 It may be that the communications of 19 October 2022 described at [151] above show that both men thought that they had reached an agreement. But two different subjective beliefs do not add up to one objective reality; essentially they were at cross purposes.
Correspondence and other events in late 2022
294 Although that conclusion means that Mr Chambers’ case fails, it will be recalled that the respondents, properly, accept that there was an employment relationship at the time of his dismissal in June 2023. It is necessary to keep following the evidence through to ascertain what that relationship comprised.
295 The evidence about the conciliation conference of 21 October 2022 adds little. The agenda Mr Chambers circulated confirms that there was agreement as to essential terms concerning the lump sum payment of $500,000 and the resulting discontinuance of the 2021 Fair Work Proceedings, but it indicates that ‘Details of employment package and performance structure/bonuses’ were yet to be agreed. Also, the reference to ‘performance structure/bonuses’ is difficult to reconcile with the idea that a flat $180,000 salary had been agreed.
296 As already stated, Mr Chambers’ evidence about what was agreed at the conference is too general to be given much weight, particularly in the context of the difficulties with his evidence about the earlier meetings that have already been canvassed. I accept as inherently probable, however, his specific evidence that Broadway Homes undertook to prepare a deed of settlement and an employment contract, with the former being required to refer to the latter. The respondents have essentially conceded this. This is relevant to a promissory estoppel case that will be addressed below. But for completeness I confirm that the situation nevertheless did not fall into any of the well-known categories of agreement set out in Masters v Cameron (1954) 91 CLR 353 at 360-362. There was simply no agreement at all.
297 Mr Basso’s evidence about the conciliation conference of 21 October 2022 is also very general and therefore also carries little weight. Further, his evidence (about the terms that are now central to the dispute) is quite vague: ‘Broadway re-employs Mr Chambers for up to 4 years during which he could earn up to $180,000.00 per annum’ (see [160] above). It is not possible to understand what ‘up to 4 years means’ when there is no suggestion in the prior evidence that Mr Chambers was to be employed for a maximum four year term, and the basis on which he ‘could earn up to $180,000.00 per annum’ is unstated. But for reasons already given, I accept that it is inherently unlikely that the parties agreed to give Mr Chambers ‘an unqualified 4-year term of employment’.
298 In those circumstances, even if I were to make a Jones v Dunkel inference based on the respondents’ failure to call Mr McLean, that would not make much difference. Jones v Dunkel essentially supports an inference that Mr McLean’s evidence would not have assisted the respondents, but I have largely not accepted their evidence about the conference anyway. Such and inference would not change that assessment, and it certainly would not point to a conclusion that Mr Chambers’ evidence about a different agreement should be accepted. As to Mr McLean’s knowledge of the terms of employment when he was tasked with arranging the settlement documentation, it is simply not clear what he knew. In an email on 27 October 2022 he asked Mr Basso to ‘provide some details on the new role incl key inclusions as this forms part of the settlement deed’. There is no evidence that Mr Basso ever gave him those details.
299 The meeting of 25 October 2022 and the email of the same day solely concerned the breakdown of the $500,000 lump sum which is uncontroversial in this matter. No further findings about it need be made.
300 Similarly, the December 2022 document described at [179]-[181] solely evidences earlier discussions about the $500,000 payment to Jamrok and Mr Chambers. It appears that by the time of that document, at least, the parties had reached a firm agreement as to the amount of the back payment and how it was to be broken down.
301 The emails of late October 2022 ([164]-[168] above) demonstrate that each of Mr Chambers and Mr Basso thought they had an agreement, since Mr Chambers indicated that he was working on the Katura Homes business plan, and Mr Basso did not stop him from doing so. But they add nothing to the evidence above as to whether there actually had been an objectively manifested meeting of minds.
302 I place no weight on Mr Basso’s vague evidence about discussion at the meeting of 8 November 2022 of ‘details of how their working relationship was going to work’. Nor do I place weight on his broad conclusionary evidence about the agreement that follows. It does not change the findings I have made based on the more specific evidence about the several preceding discussions and emails.
303 I infer from Mr Basso’s registration of ‘Katura Homes’ as a business name of Broadway Homes that by 26 October 2022, the parties had agreed that this company was the member of the Delstrat Group that was to be Mr Chambers’ employer. By 7 December 2022 the parties had agreed on the start date of 9 January 2023. I also infer from Mr Chambers’ email signature as ‘General Manager, Katura Homes’, and the lack of any demur from Mr Basso, that they had agreed that this would be Mr Chambers’ job title. But as at that start date, when Mr Chambers began to work at the Seacrest Homes office as the sole person working for Katura Homes, nothing had changed in respect of the absence of an employment agreement dealing with the essential terms of duration, remuneration and responsibilities.
The terms of Mr Chambers’ employment in 2023
304 I do not construe Mr Chambers’ acceptance of pay at a rate annualised at approximately about $163,000 plus superannuation for the first three months of his employment, and then at a rate annualised at $52,000 plus superannuation, as indicating his agreement to either rate of pay. For on the second day of his employment, he sent Mr Basso draft terms of employment which proposed a rate of pay of $180,000 for four years.
305 By the same token, I do not accept a suggestion made in Mr Chambers’ letter of demand of 6 June 2023 that the initial payments made to him indicated Broadway Homes’s acceptance of the terms Mr Chambers said had been agreed. For one thing, there appears to have been a difference of opinion as to whether the $180,000 was inclusive of superannuation. But setting that aside, the salary payments made by Broadway Homes up to 27 April 2023 were consistent with each of the different agreements asserted by the respective parties. So it does not support an inferred agreement either way.
306 Mr Chambers’ reliance on Broadway Homes’ performance of the settlement aspect of the arrangement also does not advance his position. For reasons given below, the settlement agreement and any employment agreement were separate.
307 As explained in detail at [184]-[201] above, the documents exchanged between the two men on 9 and 10 January 2023 simply confirm that they had not reached agreement about Mr Chambers’ terms of employment. The same may be said of the documents they exchanged subsequently in April 2023 ([210]-[215] above) or, in the case of Mr Basso’s email of 28 April 2023, failed to exchange. And the same may be said of the inconclusive discussions and correspondence of early May 2023 ([216]-[ 222] above). By that time, it must have been clear to both that they had very different ideas as to what they had agreed.
308 Nevertheless, from 9 January 2023 on, Mr Chambers worked for Katura Homes as a division of Broadway Homes. He was paid for that work by way of payslips. There is no suggestion that the relationship was one of independent contractors. For those reasons, I accept Broadway Homes’s factual concession that as at 9 January 2023 there was an employment relationship between Mr Chambers and Broadway Homes.
309 It is clear that even when Mr Chambers started at Katura Homes, the parties were at cross purposes as to his role and responsibilities. Mr Chambers thought he was employed to set up a business division that would operate a streamlined automated pre-construction process which, once set up, would be used to sell single and double-storey homes. Mr Basso thought Mr Chambers was employed to go out and sell homes.
310 But on 17 May 2023, Mr Basso gave Mr Chambers access to Broadway Homes sales leads. Mr Chambers expressed no dissent from the implied proposition that he should go out to pursue those leads. At the end of May 2023, Mr Basso made it clear in a text message that that was what he expected Mr Chambers to do. While Mr Chambers expressed dissent about the pay structure laid out in the text message, he did not demur from the proposition that he was to attempt to sell homes, and he did not give notice of any intention to resign.
311 In my view, the objective observer would conclude that from 17 May 2023, it was a core part of Mr Chambers’ responsibilities to sell one and two storey homes in the Perth metropolitan area, which would then be constructed by Broadway Homes. Since Mr Basso never told Mr Chambers to stop developing the new business systems, that also formed part of his responsibilities. But in view of Mr Basso’s clear and expressed focus on sales, the sales function was to take priority.
312 Before that time, as I have found, Mr Chambers performed the duties described in his evidence set out at [245] above. These may be summarised as negotiating with suppliers and arranging for the preparation of concept plans in order to compile house packages, including pricing and automatic population of client details into documentation with a view to creating streamlined business systems for the pre-construction steps for one and two storey homes. It appears from Mr Basso’s evidence as to the number of interactions he had with Mr Chambers during this period, and his dissatisfaction with progress, that he was aware of what Mr Chambers was doing, and did not raise any concerns about this until he provided the Broadway Homes sales leads in mid-May 2023. Therefore, from 9 January 2023 until 17 May 2023, it may be inferred that Mr Chambers’ role and responsibilities were as set out in this paragraph, and that he fulfilled them.
313 Given that remuneration had not been agreed, Mr Chambers was entitled to reasonable remuneration for the work that he did. Again, I accept the respondents’ submission to that effect as a limited concession. And in all the other circumstances detailed above, there is no basis in the evidence to reach any different conclusion. In that respect, the contract here is similar to the ‘implied contract’ in Way v Latilla [1937] 3 All ER 759; see in particular 761B, 763G (in view of the respondents’ concession, it is not necessary to consider whether Way v Latilla was informed by theories of restitution grounded in quasi-contract which have since been discarded in this country).
314 In terms of setting the rate of remuneration, Way v Latilla authorises the Court to have regard to industry practice (‘trade usage’) and to the bargaining between the parties, even though it did not result in a concluded contract: at 764, and see more recently Richards v Han [2022] FCA 1539 at [237] (Halley J) and Sheather v Staples Waste Removals Pty Ltd (No 2) [2014] FCA 84 at [128]-[129] (Nicholas J). In the last of these cases, Nicholas J did not confine his consideration of discussions to those that occurred before the relevant legal relationship came into existence; in this case, similarly, communications and conduct on and after 9 January 2023 can be taken into account. In Brenner v First Artists’ Management Pty Ltd [1993] 2 VR 221 at 264, Byrne J accepted (following Way v Latilla) that reasonable remuneration could be calculated on the basis of commissions when it is customary in an industry to do so.
315 For reasons just given, the period of Mr Chambers’ employment in 2023 breaks into two phases. The first is 9 January to 17 May 2023, in which the objective observer would conclude that Mr Chambers’ role was to act as General Manager of a new business division, fulfilling the functions outlined in [311] above. From 17 May 2023 until 20 June 2023, that role became secondary to the role of selling one and two storey home packages.
316 As to remuneration for the first of these roles, Mr Basso’s willingness to pay Mr Chambers, regardless of any home sales, at the rate of $180,000 inclusive of superannuation is strong evidence that this was a reasonable rate of pay for those services. There is no basis to conclude that the pay to which Mr Chambers thought he was entitled, $180,000 plus superannuation, was a reasonable rate of pay. To the contrary, the lack of any evidence that Mr Chambers complained about the lower inclusive rate when he was paid according to it confirms that it was a reasonable rate.
317 As to the second phase, it is likely that the reasonable rate of remuneration changed, due to the significant change in the role to one that was primarily a sales role. During the pre-contractual discussions detailed above, Mr Basso’s position was consistently that this would be remunerated partly by a base salary and partly by commissions, although he never clearly expressed what rate the commissions would be. This is a reasonable structure, to reflect the mixed nature of the role between the development of the new business arm and its systems and the selling of houses. Mr Basso also confirmed in cross-examination that he had afforded that mixed structure with a base pay of $52,000 per annum to at least one other sales representative at Delstrat Group. He also gave evidence in cross-examination which tended to confirm that a commission incentive structure was widespread, at least at the Delstrat Group (ts 227):
So in all sales, we always put an incentive to people to perform. Otherwise, people are going to sit around doing nothing. So the whole structure for – since I’ve ever been business is always incentivised to make people basically perform.
318 As to the rate of the commissions, Mr Chambers’ 2020 contract with Broadway Homes (via Jamrok) was in evidence. It provided for a 4% base rate of commissions on ‘slab down’. Mr Basso’s evidence in cross-examination was to the effect that a sales consultant ‘is earning 4 per cent roughly of the value of a job’ (ts 170). Mr Chambers refers in his evidence to the notation of ‘4%’ on one of the notes made in the meeting of 18 October 2022. He gave the following evidence about that in cross-examination (ts 44):
We went through a number of different figures. So I outlined Mr Basso had 4 per cent built into all the sales of his homes. So that 4 per cent was to cover his sales and marketing portion of the business. Obviously, there was other parts of his business that he needed to account for in his margins.
319 There is also the following uncontradicted evidence in Mr Chambers’ affidavit about a discussion with Mr Basso that took place on 10 January 2023:
- While discussing them [documents Mr Chambers had printed out], Mr Basso raised a concern about the 4.5% allowance that I wanted to build into each home as it could price us out of the market.
- I responded by noting that it was less than his current structure at Broadway that paid up to 5.75% commission and override.
320 This confirms that a commission in the order of 4% could be accommodated within the proposed costs structure for Katura Homes, but that any higher percentage could be too high.
321 I do not consider that the 1% override commission was part of any reasonable remuneration in circumstances where Mr Chambers did not have any sales team reporting to him and there is no suggestion that he ever would. Nor is there any reason to think that the bonus rate provided for in the 2020 contract of 4.5% for monthly sales exceeding $1 million is necessary to make the commission structure reasonable, and it adds complexity that is inconsistent with the task of setting a reasonable rate in the absence of express agreement.
322 Nor is there any reason to think that the sales commission needed to be capped at $180,000 per annum or any other number in order to be reasonable. I have already rejected Mr Basso’s justifications for that, and do not see it as reasonable. The relatively modest base salary of $52,000 in addition to sales commissions is reasonable in view of the management responsibilities that Mr Chambers had in addition to sales responsibilities.
323 In summary, then, I find that the reasonable remuneration to which Mr Chambers was entitled in the second phase (from 18 May 2023 onwards) was a base salary equivalent to $52,000 per annum inclusive of superannuation to be supplemented with a 4% commission on the price of any homes sold (with a sale taken to have occurred at ‘slab down’ stage).
324 Finally, as to the term (duration) of Mr Chambers’ employment, since the term and notice period for the respondents had not been agreed, the common law implies a term into the contract that it may be terminated on reasonable notice, or summarily for serious breach: see Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 423 (Brennan CJ, Dawson and Toohey JJ); Westpac Banking Corporation v Wittenberg [2016] FCAFC 33; (2016) 242 FCR 505 at [218] (Buchanan J, McKerracher and White JJ agreeing). Under s 117 of the FWA, Mr Chambers would have been entitled to one week’s notice in any event, however here the respondents submitted that reasonable notice was two weeks so it is not necessary to apply the statutory minimum.
325 In making that submission, the respondents draw attention to Mr Chambers’ ‘status’, the relatively low level of remuneration of $1,000 per week, and the absence of supervisory responsibilities, a budget or broader organisational responsibilities. But it is not clear what they mean by his ‘status’ in this regard, and in any event his job title of General Manager is one commonly associated with a high level of seniority. The respondents’ reliance on the ‘low level of remuneration’ overlooks the fact that Mr Chambers was paid at the $180,000 base rate for the first three months and, after that, was entitled to reasonable remuneration for the duties and responsibilities which he discharged.
326 The length of a reasonable notice is a question of fact to be determined after consideration of all relevant circumstances. Considerations which may guide the calculation include, but are not limited to: the nature and circumstances of the employment, including duties and responsibilities of the role, seniority, and degree of specialist skills and knowledge: see generally Rankin v Marine Power International Pty Ltd [2001] VSC 150 at [219]-[223]. It is the nature of Mr Chambers’ duties and responsibilities on which I place most weight in determining what was a reasonable period of notice. The respondents are right to refer to the lack of any persons reporting to Mr Chambers, nevertheless on his account of what he did (and what Mr Basso assented to him doing, for a time) was to fulfill management responsibilities with potential long term benefits for the broader Delstrat Group businesses, and from mid-May 2023 the reasonably high level role of selling one and two storey home packages. In my view, in all the circumstances the reasonable period of notice in the absence of serious misconduct was four weeks.
Whether Broadway Homes breached s 323 of the FWA
327 Section 323(1) of the FWA relevantly provides that an employer must pay an employee amounts payable to the employee in relation to the performance of work in full. This is a civil remedy provision.
328 Mr Chambers was essentially paid at the rate I have found to be reasonable for the period 9 January 2023 to 23 April 2023. Broadway Homes has not breached s 323 in respect of that period. And for the period 18 May 2023 until the end of Mr Chambers’ employment, there were no sales, so paying him at (or above) the base rate of $52,000 per annum, as Broadway Homes did, also involved no breach of s 323.
329 One of the payslips in evidence, however, shows that Mr Chambers was paid at the rate equivalent to $52,000 for two days, 24 and 25 April 2023. This was the first underpayment and Mr Chambers noticed it and brought it up with Mr Basso (see [217] above). As set out above, the pay for the next payslip, and fortnightly period, then reverted to the higher rate of $162,895.91 per annum plus 10.5% superannuation, which was $180,000 in total.
330 However, the following payslip for the period 10 to 23 May 2023 reverted back down to the $52,000 per annum rate (plus 10.5% superannuation). On the basis of the findings above, Mr Chambers was entitled to be paid at the higher base rate for the period 10 May 2023 up to and including 17 May 2023. That was a total of six days, after eliminating the weekend that fell within that period. Together with the two days of underpayment in April 2023, Mr Chambers was underpaid for 8 days’ work. In the manner of calculation used in the payslips, he should have been paid an hourly rate (at 7.6 hours per day) of $82.4372 plus 10.5% superannuation, rather than the hourly rate of $26.3158 plus 10.5% superannuation at which he was in fact paid. I will leave it to the parties to confer as to the necessary calculation of the amount of the underpayment.
331 It follows that for that period, Broadway Homes breached s 323. Mr Basso was involved in that breach within the meaning of s 550 of the FWA. There will be declarations to that effect.
Whether Mr Chambers was dismissed because he exercised workplace rights
The parties’ cases
332 The respondents properly concede that Mr Chambers had workplace rights and that he exercised them. This concession presumably encompasses Mr Chambers’s complaints about underpayment from April 2023, his letter of demand of 6 June 2023 and the commencement of proceedings in the FWC on 14 June 2023. They also properly concede that Mr Chambers was dismissed, which I have found occurred on 20 June 2023.
333 For reasons already given, to resolve the present proceeding it is only necessary to focus on the causal relationship between Mr Chambers’ commencement of the 2023 Fair Work Proceeding on 14 June 2023 and his dismissal on 20 June 2023. This aspect of the dispute comes down to whether the commencement of the proceeding was the reason for that dismissal. That needs to be assessed in accordance with s 360 and s 361 of the FWA, which will be described shortly.
334 Mr Chambers submits that the fact that no concerns or warnings about his performance were expressed before he was dismissed indicates that the dismissal was motivated by the commencement of the 2023 Fair Work Proceeding on 14 June 2023. He points out in addition that Mr Basso decided to give him sales leads that Broadway Homes had to work on in mid-May 2023. Mr Chambers submits that it this not the conduct of someone who had decided to terminate his employment at that time.
335 Mr Chambers also relies on what he says is the correlation of timing between Broadway Homes’ receipt of the Fair Work complaint and his receipt of the letter of termination. He submits that the Court should find that the instruction to Ms Joughin to prepare the letter of termination of the employment was given by Mr Basso on 20 June 2023, and so after Broadway Homes had received the Fair Work complaint. That was the date initially given by Mr Basso in cross-examination, although he later sought to amend that to 16 June 2023. Mr Chambers further relies on the fact that while on holiday in Italy, Mr Basso would have had little desire to ruminate on Mr Chambers’ work performance and decide to terminate his employment on that basis.
336 I have set out the respondents’ case as to the reason for the dismissal at [35] above and Mr Basso’s evidence about those reasons at [239]-[248] above. Essentially, they contend that Mr Basso decided to dismiss Mr Chambers because Mr Chambers was not performing satisfactorily as a sales person.
Legal principles
337 Section 340(1)(a)(ii) of the FWA relevantly provides that a person must not take adverse action against another person because the other person has exercised a workplace right. ‘Adverse action’ includes dismissal: column 2 of item 1(a) in the table in s 342(1). A ‘workplace right’ includes a right to participate in a process or proceedings under a workplace law, which relevantly includes a conference conducted or hearing held by the FWC: s 341(1)(b) and s 341(2)(a). Mr Chambers is entitled to the protection of s 340 of the FWA even if he was mistaken to believe that he had the rights he was seeking to vindicate: Tattsbet Ltd v Morrow [2015] FCAFC 62; (2015) 233 FCR 46 at [107] (Jessup J, Allsop CJ and White J agreeing).
338 Section 360 of the FWA provides that for the purposes of Pt 3-1, in which s 340 is also found, ‘a person takes action for a particular reason if the reasons for the action include that reason’. Section 361(1) provides that if:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
339 As to the approach to take to these provisions, I rely on the summary of High Court authority found in State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184 at [32] (Tracey and Buchanan JJ):
As the trial judge recognised the leading authority on the operation of ss 360 and 361 of the Fair Work Act in the context of Part 3-1 of that Act (which includes s 351) is Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500. The principles which informed this decision were recently reaffirmed by a majority of the High Court in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41. Relevantly, these authorities establish that:
- The central question to be determined is one of fact. It is: ‘Why was the adverse action taken?’
- That question is to be answered having regard to all the facts established in the proceeding.
- The Court is concerned to determine the actual reason or reasons which motivated the decision-maker. The Court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker. Nor should such an enquiry be made.
- It will be ‘extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer.’
- Even if the decision-maker gives evidence that he or she acted solely for non-proscribed reasons other evidence (including contradictory evidence given by the decision-maker) may render such assertions unreliable.
- If, however, the decision-maker’s testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by s 361.
…
340 Thus it is open to the Court to accept the evidence of a decision maker as to why a person was dismissed as honest, but nevertheless reject is as ultimately unreliable after other evidence including evidence of objective circumstances are taken into account: see Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500 at [45] (French CJ and Crennan J); Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; (2014) 253 CLR 243 at [39] (Hayne J), [56] (Crennan J, in dissent but not on this point).
341 Section 340 is a civil remedy provision under the FWA: column 1 of item 11 in the table in s 539(2). Under s 545(1) and s 545(2)(b), if this Court is satisfied that a person has contravened such a provision, it may make an order awarding compensation for a loss that another person has suffered because of the contravention. Under s 546(1), the Court may also make a pecuniary penalty order and may order that the amount of the penalty be paid to a particular person, most obviously a person aggrieved by the contravention. As has been said, these remedies will not be the subject of this judgment.
Analysis
342 I accept Mr Chambers’ submissions in relation to this issue. They are persuasive and largely speak for themselves. At the risk of some repetition, though, I will further explain my conclusion. It is that, in view of the following matters, the respondents have failed to displace the statutory presumption that Mr Chambers was dismissed because he had commenced the 2023 Fair Work Proceeding:
(1) There is no clear evidence that Mr Basso or anyone else raised concerns with Mr Chambers about his performance before his employment was terminated – Mr Basso’s brief oral evidence on the topic is broad and I give I little weight ([247] above).
(2) Mr Basso had given Mr Chambers access to Broadway Homes’ sales leads as recently as mid-May 2023, and he confirmed this in his text message of 31 May 2023 (which acknowledged that it was necessary for Mr Chambers to ‘get the Katura Web site up and running’, see [227] above), in circumstances where I accept Mr Chambers’ evidence that Mr Basso knew that it would take more than one month to convert those leads into sales. This is inconsistent with the idea that Mr Basso had decided to dismiss Mr Chambers before the commencement of the 2023 Fair Work Proceeding.
(3) Mr Basso prevaricated in his evidence as to the date on which he instructed Ms Joughin to prepare the letter of termination, meaning that I do not find his evidence that it was given on 16 June 2023 persuasive.
(4) That is especially so since, as Mr Chambers pointed out in his cross-examination of Mr Basso, it was likely that Mr Basso had a record of what he said was his WhatsApp call to Ms Joughin on this occasion, but this was never produced to confirm the date of that call.
(5) In any event, the letter was sent the day after Broadway Homes became aware that Mr Chambers had commenced the 2023 Fair Work Proceeding, so it can be comfortably inferred that the proceeding was in the respondents’ mind when they took the adverse action complained of.
(6) For all that Mr Basso was prepared to deal calmly with Mr Chambers’ previous complaints about underpayment, commencing a legal proceeding represented a significant escalation and meant that the relationship had become openly adversarial.
(7) Mr Basso was on holidays in Italy, and his evidence in cross-examination (see [228] above) as well as correspondence that he sent both at that time ([234] above) and on other occasions when he was on holiday confirmed that he was not inclined to deal with work matters during such periods unless it was absolutely necessary.
(8) Although I accept Mr Basso’s evidence that he believed that Mr Chambers’ employment was subject to a six month probationary period, that period expired on 9 July 2023, when Mr Basso confirmed that his trip ended at the end of June, meaning there would have been sufficient time to act after he got back.
(9) The bland explanation in the dismissal letter that it was a redundancy due to ‘economic factors outside our control’ is inconsistent with the reason given by Mr Basso in evidence, which was that it was due very specifically to Mr Chambers’ failure to perform – this undermines the credibility of both explanations.
343 Taken together, these matters provide strong additional support for the inference that obviously arises from the fact that Broadway Homes dismissed Mr Chambers the day after it learned that Mr Chambers was suing it for alleged underpayment of remuneration.
344 To the extent that the date of Mr Basso’s instruction to Ms Joughin matters, I am more prepared to make this obvious inference because of the respondents’ failure to call Ms Joughin to confirm Mr Basso’s version of events: see Jones v Dunkel at 308 (Kitto J). The explanation given by Mr Basso for not calling relevant witnesses – that his lawyers said it was not necessary – tells the Court nothing at all.
345 For those reasons, I do not accept as reliable Mr Basso’s direct evidence that Mr Chambers’ employment was terminated solely because of underperformance. While the lack of sales or sales leads may have been in Mr Basso’s mind at the time, the above matters strongly support an inference that also in his mind as a motivating factor was the fact that Mr Chambers had sued Broadway Homes as the culmination of increasingly strident demands for a pay structure and guaranteed employment to which Mr Basso was never prepared to agree.
346 Specifically, I have already addressed Mr Basso’s expressed concern about the end of the probationary period. And his evidence that by mid-May 2023, he had decided that Mr Chambers was not going to get past that period is inconsistent with his act in giving him sales leads, and acknowledging in his text message of 31 May 2023 that this was necessary while Mr Chambers got the Katura Homes website up and running.
347 Mr Chambers has made out his case that in dismissing him on 20 June 2023, Broadway Homes breached s 340 of the FWA. It follows from the respondents’ proper concession that Mr Basso was involved in that breach within the meaning of s 550 of the FWA.
348 There will need to be an inquiry into the compensation for that breach to which Mr Chambers is entitled under s 545(1) of the FWA. The Court will also need to receive submissions as to whether a penalty should be ordered, in what amount, and to whom it should be payable.
Other matters to be addressed in this judgment
One agreement or two?
349 I have said above that nothing turns on whether there were two separate agreements – one about settlement of the 2021 Fair Work Proceedings and one about the terms of Mr Chambers’ future employment – or whether both matters were the subject of a single agreement. It is, further, possible that the two matters were interdependent, meaning that the acceptance of the settlement was conditional upon the future employment, while still comprising two different agreements.
350 But I will make a finding about the point in case I am wrong that nothing turns on it. In my view, there were two agreements. The first was an agreement to settle the 2021 Fair Work Proceedings and judicial review proceeding involving each of Mr Chambers and Ms O’Brien by the payment of $500,000 in return for discontinuance. This was formed, by the latest, by December 2022 when the breakdown between contractor payments to Jamrok and employee payments to Mr Chambers was agreed: see [300] above. It is not possible to find that this agreement included any enforceable condition that an employment agreement be entered into, since the terms of that employment agreement were insufficiently certain.
351 The second agreement is the one that the respondents have accepted came into existence when Mr Chambers started working for Broadway Homes as an employee in January 2023.
352 That the employment component of the arrangement and the settlement component were separate is reflected in the proposal at the 21 October 2022 conciliation conference that two separate documents be prepared. Further, the settlement agreement involved Ms O’Brien and Jamrok as parties; they are unlikely to have been parties to an employment agreement between Broadway Homes and Mr Chambers. Further, the settlement agreement was fully executed (performed) once the $500,000 was paid and the 2021 Fair Work Proceedings had been discontinued. The employment agreement was to be ongoing (or, on Mr Chambers’ version of events, ongoing for at least four years). Also, Mr Chambers’ email of 18 October 2022 and the conciliation conference agenda he proposed reflect the position that the parties had agreed on the essential terms of the settlement agreement with the employment agreement to be worked out separately. Finally, even though there was no employment agreement before 9 January 2023, that was no impediment to the parties performing the steps that were necessary to dispose of the subsisting proceedings, in a manner that has not proved contentious.
353 The evidence does not support the proposition that there was one agreement only which, given that Mr Chambers’ case as to the agreement fails, would mean there was no agreement at all. To the extent that it is relevant, there was a settlement agreement, formed by December 2022 at the latest, which has been fully performed, and a separate employment agreement in January 2023 which I have found on the basis of the proper concessions made by the respondents.
Estoppel
354 Mr Chambers raises two estoppel arguments.
355 In his written opening submissions, Mr Chambers submitted that the circumstances which gave rise to the agreement, on his case, also ‘give rise to estoppel by convention, in that the parties have acted on the basis of agreed or assumed facts and are “estopped” from denying those agreed or assumed facts because such a denial will cause detriment to one of them’ (para 29). However he did not articulate any way in which an estoppel by convention could arise in the present circumstances if those circumstances did not also give rise to a legally binding agreement. The estoppel by convention case adds nothing to the agreement case, so I will not give it separate attention.
356 In closing submissions, Mr Chambers raised what appeared to be a promissory estoppel, which did differ from his case as to a legally binding agreement. This estoppel is based on what Mr Chambers said was a promise by the respondents to prepare the settlement documents, by which he means a deed of settlement of the 2021 Fair Work Proceedings and a contract governing his future employment, as well as promises to employ him for a minimum term of four years and to pay approximately $420,000 to Jamrok and ‘back pay’ of approximately $80,000 including superannuation to him.
357 Mr Chambers contends that in reliance on these promises, he changed his position by discontinuing the 2021 Fair Work Proceedings, and that if the promises had not been made he would not have done that. The respondents did not object to the late raising of this claim so I will address it.
358 It can be inferred that Mr Chambers would not have discontinued the 2021 Fair Work Proceedings if the promise of a deed of settlement and a contract of employment had not been made. Nevertheless, there are two reasons why I do not accept the promissory estoppel claim.
359 The first is that ‘[i]t is an essential element of promissory estoppel that a ‘clear and unequivocal’ promise be made by the party estopped to the party who relied upon the promise’: Rose v Manno Kingsway Pty Ltd [2025] NSWCA 23; (2025) 116 NSWLR 598 at [79] (Bell CJ, Mitchelmore and Adamson JJA agreeing). But all the evidence establishes here is that Broadway Homes undertook to prepare a deed of settlement and an employment contract. This says nothing about the content of either document and, as has been made clear above, the terms of the employment contract, at least, were entirely unclear. In the absence of a statement or agreement as to those terms, the undertaking given by Broadway Homes was empty. It cannot be characterised as clear and unequivocal.
360 To the extent that the promises relied on by Mr Chambers to support an estoppel were more direct promises to employ him on the alleged terms, they fail for the same reason that his case as to the terms of the contract of employment fail.
361 The lack of clarity as to the content of what was promised would also present difficulties in framing any relief, even if an estoppel had been established. As to the considerations that commonly inform such relief, see Kramer v Stone [2024] HCA 48; (2024) 281 CLR 484 at [40] (Gageler CJ, Gordon, Edelman and Beech-Jones JJ). There would be no point in compelling Broadway Homes to prepare an employment contract if the terms of that contract were at large. Similar difficulties would arise if it were thought that monetary relief commensurate to the value of the promise made was appropriate.
362 The second reason I do not accept the promissory estoppel claim is that Mr Chambers has not established that the act of his on which he relies, the discontinuance of the 2021 Fair Work Proceedings, has caused him detriment. He did, after all, receive payment of accrued commissions (whether due to him directly or through Jamrok). As explained above, there is little or no evidence about what his actual entitlements were, so he has not established that he would have been any better off had he not discontinued the proceeding: cf. Kramer v Stone at [40].
363 For those reasons, I do not accept Mr Chambers’ estoppel case.
The contract case
364 It follows from my finding that there was no contract of employment formed on the terms that Mr Chambers alleges that his alternative case for breach of contract fails. It is in any event difficult to see how that case would put him in a better position than his primary case for breach of s 340.
Conclusion
365 No contract of employment between Mr Chambers and Broadway Homes had formed by the end of the negotiations that took place in 2022.
366 The contract of employment which the respondents have conceded did come into existence is to be inferred from the terms on which Mr Chambers was employed commencing on 9 January 2023. In relation to that period of employment, Mr Chambers was entitled to reasonable remuneration in return for the duties described in more detail at [309]-[311] above; duties which Mr Chambers performed. Mr Chambers was also entitled to reasonable notice of the termination of his employment (save for serious misconduct), which in the circumstances was four weeks. But no term guaranteeing him employment for four years was ever agreed (or would be inferred or implied).
367 For the reasons explained above, for periods totalling 8 days, Broadway Homes did underpay Mr Chambers and so breached s 323 of the FWA. Other than for that period, there was no underpayment.
368 I have found that when Mr Chambers was dismissed in June 2023, that was adverse action taken against him because he exercised a workplace right by commencing a proceeding in the FWC in that same month. Broadway Homes thus breached s 340 of the FWA.
369 Mr Basso was involved in each of these breaches within the meaning of s 550 of the FWA. Both respondents are therefore liable to pay compensation to Mr Chambers.
370 In accordance with the orders for a separate question made on 5 December 2022, the assessment of the amount of that compensation, and consideration of any civil penalties payable, are yet to take place.”
Chambers v Broadway Homes Pty Ltd (No 2) [2026] FCA 28 delivered 30 January 2026 per Jackson J