Unfair dismissal and demotion Part 3

Unfair dismissal and demotion Part 3

This is the third in a series of three posts which deals with the way in which an employer’s treatment of an employee can constitute a dismissal of the employee even though the employee may not have been dismissed. The posts have dealt with the history of constructive dismissal and the circumstances in which an employee departing the employment may be regarded as a termination of employment at the initiative of the employer.

However an employee who is unhappy about his or her lot at work does need to be careful not to assume that a demotion, or a lessening of working conditions or benefits, will necessarily be regarded that way and that the argument to the effect that the employer’s conduct constitutes a repudiation of the employment contract and thus a termination of employment at the initiative of the employer can be risky.

Here is an extract from a different case which makes that point.

In the alternative Ms Martin contended that her contract of employment was repudiated and this was a termination at the employer’s initiative. I was referred to Macken’s Law of Employment and a number of authorities.34

Ms Martin contended that the repudiation could be found as Novita’s conduct showed an intention not to be bound by the express terms of the agreement struck, and that Novita had by its conduct imposed a significant diminution in status and responsibilities which ended the contract.

When I review the facts I have found in this case against the indicators described by Beach J in Cameron v Asciano Services Pty Ltd,35 I do not believe the case for repudiation is made out. I do not accept that the proposals advanced and discussed between Ms Martin and Novita were of such finality that they were imposed on Ms Martin. Some of the changes advanced were allowable as a result of clause 8 of her contract of employment. I am not satisfied that Novita conduct expressed an intention not to be bound by the contract of employment.

There was no suggestion that Ms Martin’s remuneration would be impacted, and whilst Ms Martin may disagree, I am not convinced that her status or responsibility would have been reduced. In addition Novita remained open to vary the proposal. Unfortunately on 15 July 2018 Ms Martin advised that she would not continue to work for Novita. This communication was reinforced on 17 July 2018.

I am not convinced that the proposal would have resulted in the repudiation of Ms Martin’s contract of employment by Novita. The proposals put were simply options, and subject to change. It was Ms Martin that closed the door on her continued employment by failing to engage further in those discussions, not Novita.”

Martin v Novita Children’s Services  [2018] FWC 7706 delivered 19 December 2018 per Platt C