Case Updates: In this week’s article we take a look at two recent employment law cases, one which deals with whether or not an Executive Producer at Network 10 was covered by the Broadcasting, Recorded Entertainment and Cinemas Award 2010 and was therefore entitled to a substantially more generous severance pay. The other case involves a security guard who was considered to have abandoned his employment when he was remanded into custody for three weeks.
Entitlement to redundancy pay
The Applicant in this case, Ms Maria Michael was formerly employed by the Respondent Network Ten Pty Limited (‘Network Ten’) as an Executive Producer until she was made redundant on 29 May 2020. Throughout her long and storied tenure at Network Ten Ms Michael was responsible for producing a wide range of shows including Bondi Rescue, Family Feud, The Loop, The Living Room, Bondi Vet, Pointless and Celebrity Name Game and commanded an annual gross salary of $262,247.40 at the time of her dismissal.
Following her dismissal, Ms Michael was paid a little over $255,000 by way of various termination payments which included amounts for payment in lieu of notice and 12 weeks of severance pay. The issue in this matter arose as Ms Michal claimed she was entitled to receive significantly more severance pay, specifically 78 weeks’ pay equating $393,371.10. The source of this entitlement was the Network 10 Enterprise Agreement 2019 which contained provisions for severance pay entitlements that were significantly more beneficial than those afforded to Ms Michael upon her dismissal.
The central legal issue in this matter was whether Ms Michael was an employee covered by the enterprise agreement and therefore entitled to receive the severance pay that applied to employees under that agreement. The enterprise agreement was stated to cover Network 10 and employees of Network Ten who worked in one of the classifications in Schedule B of the Broadcasting, Recorded Entertainment and Cinemas Award 2010 (‘The Award’). This meant that the court was required to give consideration to the proper construction of the Award in order to determine whether Ms Michael was of a class of employees that were covered by the Award.
It was Ms Michael’s case that she was classified as a “Producer” under the Award as she performed tasks not only expected of an Executive Producer but also those that were more “hands-on” and not typically associated with someone in that position such as video editing, camera operation and photography. Ms Michaels case required that the classification of “Producer/Director’s Assistant//VCG Operator” be read as three separate and distinct positions of Producer, Director’s Assistant and Video Character Generator Operator.
It was Network 10’s case that the major and substantial part of Ms Michael’s employment were her senior level duties as an Executive Producer and that the classification in the Award did not apply to senior level employees. The main focus of Network Ten’s case shifted during the trial that on the proper construction of the Award, there was no classification for “Producers” let alone “Executive Producers” and that the reference to “Producer/Director’s Assistant” was in fact the same role.
In considering the proper construction of the Award the court determined that there was no classification for “Producers” under the Award despite the ambiguity that had arisen due to its drafting. The reference to “Producer/Director’s Assistant” was to be understood in the context of the Award to mean an employee assisting either a producer or a director and not to mean a “Producer” or a “Directors Assistant” as Ms Michael had contended. The court commented on the confusing drafting of the Award however inferred from the context of the Award and the implied hierarchy established in the industry that Producers were typically above Directors (let alone directors assistants) in the proverbial pecking order of the broadcasting and recorded entertainment industry.
In concluding that the role was not covered by the Award, the court highlighted that moderns awards do not typically apply to management level employees and noted the substantial annual salary and requirements of Ms Michael’s role indicated that she was a senior executive employee excluded from coverage under the Award.
Abandonment of Employment
In this matter the Deputy President Anderson of the Fair Work Commission upheld a jurisdictional objection to an unfair dismissal claim after it found the Applicant was not dismissed when the employer ended the employment relationship as a result of abandonment of employment. Mr Qureshi was a full-time security guard for the Respondent who worked a regular roster from Saturday to Wednesday.
On Sunday 2 April 2023 Mr Qureshi had finished his rostered shift at 10:00 pm and returned home when he was then questioned by police relating to several offences. Mr Qureshi was ultimately charged with those offences and taken to Adelaide police station where he remained overnight before he would be presented to a magistrate the next day. The following day the magistrate ordered that Mr Qureshi be remanded into custody where he remained for 23 days before all charges against him were eventually dropped. During this time, Mr Qureshi was only permitted to call phone numbers that he knew from memory and was unable to get into contact with his employer despite asking his solicitor and a friend to do so on his behalf.
As he was in remand, Mr Qureshi did not attend several of his rostered shifts and his employer who had received no communication from Mr Qureshi or explanation had concluded that he had abandoned his employment. Mr Qureshi’s employer had issued a letter on 11 April 2023 and a subsequent letter on 18 April 2023 warning Mr Qureshi that his employment would be considered abandoned if he did not provide an explanation for his absence or attend work. As he was in remand, Mr Qureshi did not receive these letters until after he was released at which time his employment with the Respondent had already come to an end.
It was the Applicant’s case that he was dismissed by the Respondent and that it was the letter sent by them on 18 April 2023 that brought the employment relationship to an end. He argued that there was no abandonment of employment as he had taken all reasonable steps he could to inform work of his absence whilst on remand.
It was the Respondent’s case that the Applicant was not dismissed and instead that he had repudiated his contract by not turning up to multiple shifts in the three week period.
Unfortunately for Mr Qureshi, despite his attempts to notify his employer, the test for repudiation of a contract is determined objectively and it is unnecessary to consider subjective intentions of the employee. In concluding that the behaviour was repudiatory the Deputy President highlighted the following:
Mr Ali Qureshi failed to attend multiple rostered shifts without approval and without prior warning or timely explanation. The obligation to turn up to work at the appointed place and time was an essential feature of his employment as a security officer. The employer had no insight into the reason for his non-attendance. The employer took reasonable steps to alert Mr Ali Qureshi to his obligation on each occasion he missed a shift. After an absence of six shifts, I am satisfied that the failure to attend for work as rostered so struck at the heart of Mr Ali Qureshi’s employment obligations that it objectively signified an inability (although not an intention) to render substantial performance of the contract.
The next question to be determined was whether the acceptance of the repudiatory conduct was a dismissal at the employer or the employee’s initiative. In citing previous decisions of the full bench of the Fair Work Commission, the Deputy President highlighted that when the objective test for abandonment of employment has been met, the termination will be considered to be at the employee’s initiative, and therefore found that Mr Qureshi was not dismissed under the Fair Work Act 2009 (Cth).
Despite finding that Mr Qureshi was not dismissed the Deputy President then considered whether the dismissal was harsh, unjust or unreasonable in the event they had erred in finding Mr Qureshi wasn’t dismissed. The Deputy President concluded that although the dismissal had harsh consequences for Mr Qureshi and was ultimately borne out of unfortunate circumstances, the dismissal would not have been unfair if the Commission were required to rule on it.
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