Senior Manager fails in adverse action claim

Senior Manager fails in adverse action claim

Senior Manager fails in adverse action claim

The Federal Court dismissed an adverse action claim from a manager who claimed that his termination was due to several complaints concerning his redundancy, taking of personal leave, and a redundancy claim rather than accepting a proposed redeployment. In the alternative, the manager claimed he was subject to undue influence or pressure to accept the proposed redeployment role.

The employee ‘CL’ commenced employment with Intrepid Travel Pty Ltd (“Intrepid Travel”) on 18 December 2012. From 1 December 2016, he held the position of Global General Manager – Peak Destination Management Company (PEAK DMC) on a remuneration package of $165,967.26, comprised of a base salary of $135,270.57 and share rights.

Intrepid Travel is an adventure travel company with its headquarters located in Melbourne.

From 1 January 2020, CL commenced a six-month secondment in the role of Managing Director – Hotels for 50% of his time while continuing his normal duties. On 21 February 2020, he was offered the role of Managing Director – North America, which required him to relocate and commence on 1 May 2020. He accepted this role on 24 February 2020.

Unfortunately, due to the onset of Covid-19 and the closure of international borders, he was unable to relocate as planned and continued in his normal role. On 22 June 2020, he revoked his acceptance of the offer, stating Covid-19 pandemic and personal reasons.

On 8 and 9 July 2020, CL was involved in senior management meetings where it was proposed the PEAK DMC business be amalgamated, and he was offered the redeployment role of General Manager of Global Product Operations.

CL was reluctant to accept the role due to his concern that it was not suitable for him. He enquired about alternate options, such as redundancy, but was advised that he would not be offered a redundancy. Over the next several months, he was absent on certified sick leave for several periods.

On 24 July 2020, he rejected the Redeployment Offer and advised HR that he wanted a redundancy. Over the next several months, he continued to reject the redeployment offer and ultimately was terminated effective 4 September 2020.

As noted by Federal Court Judge Caroline Kirton concerning the new position,

“While the position of the role within the Respondent’s structure and the nuances of the role changed, the role continued to be that of a senior finance manager responsible for a division of the Respondent’s day-to-day business, commercial activities and strategy”.

Consequently,

“Given the finding that the Redeployment Role was in substance the same job as the Initial Role, it is not necessary to discuss the reasonableness of redeployment and making a finding about whether the Applicant’s refusal to accept the Redeployment Role was reasonable”.

In his claim, CL relied on several workplace rights, including the right to redundancy, the right to make complaints and enquiries in relation to his employment, and the right to take personal leave.

Dismissing the latter claims, Judge Kirton noted,

“The Applicant has provided no evidence to support his contention that he was dismissed due to exercising his workplace right to take personal leave, and has provided little evidence to support his claim that he was dismissed because he exercised his workplace right to make complaints and inquiries”.

After determining that the new role offered to CL was similar in duties, responsibilities, seniority, and remuneration to his initial role, Judge Kirton concluded,

“I have determined that the role of the Applicant was not redundant and therefore the Applicant is not entitled to redundancy pay”.

Accordingly, the application was dismissed.

CL v Intrepid Travel Pty Ltd [2023] FedCFamC2G 766 (24 August 2023)

For queries about adverse action, workplace rights, restructures, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

Ref: 390.0923

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