In Adcock v Blackmores Limited & Ors [2016] FCCA 265 (February 12, 2016), the Federal Circuit Court of Australia ("FCCA") found that an employee had not been made redundant when his role was made redundant but he had been made genuine offers of employment in similar roles not inferior in seniority, remuneration, and responsibility, which he had rejected. Accordingly, the court held that the employee was not entitled to the relevant redundancy benefits.

In September 2014, Mr. Adcock, who had been employed as Commercial Manager Asia by Blackmores Limited ("Blackmores"), left Blackmores claiming that it had repudiated its contract of employment with him. Mr. Adcock's resignation followed a period in which Blackmores made a number of offers to reassign him to various different positions, after notifying him that the role of Commercial Manager Asia had been, in broad terms, made redundant. One important term of Mr. Adcock's contract, which was highlighted to him when the various offers of alternative positions were made, was that he could be asked to perform tasks or duties other than those set out in the position description of his current job and that his position and responsibilities could be changed from time to time.

He brought proceedings in the FCCA for recovery of redundancy entitlements and pay in lieu of notice and sought orders imposing pecuniary penalties for beaches of the relevant enterprise agreement. Mr. Adcock alleged that:

He had been made redundant;  

  • Blackmores had repudiated his contract of employment;
  • By failing to pay him notice and redundancy pay, Blackmores had breached the enterprise agreement and therefore section 50 of the Fair Work Act 2009 (Cth) ("Act"); and
  • Blackmores, through one or more of its representatives, knowingly or recklessly made false and misleading representations to him relating to his ability to recover entitles in court and his entitlements under his employment contract, in breach of section 345 of the Act.

The primary question for the court was whether Mr. Adcock had been constructively dismissed through repudiation. Judge Cameron stated that the test to be applied was whether the employer's conduct, judged objectively, evinced an intention no longer to be bound by the contract or to fulfill it only in a manner substantially inconsistent with the employer's obligations. As the offers of alternative positions, a number of which had been made by Blackmores, did not involve a significant diminution in remuneration, status, or responsibility, they were found not to be repudiatory. Mr. Adcock further failed to identify what conduct amounted to be repudiatory except for the argument that, in practical terms, an employer could avoid redundancy payments by purporting to transfer the employer to an "unsuitable role" such as an interstate transfer. The court, not being satisfied that this was in fact the case, found that Blackmores had not repudiated its contract with Mr. Adcock and, hence, Mr. Adcock had resigned on the date he left the company.

As Mr. Adcock failed to demonstrate that he had been made redundant, his claims that Blackmores had breached section 50 of the Act by failing to pay him redundancy and notice entitlements also failed.

The court also found for Blackmores in the false and misleading representations claims under section 345 of the Act. In the case of the alleged representation by Blackmores to Mr. Adcock of his prospects of success in litigation, Judge Cameron found the requisite reliance element lacking because of the general nature of the relevant comments and the fact that Mr. Adcock had already engaged lawyers at this stage. In the case of representations as to his contractual entitlements, Judge Cameron found that, on the evidence, such representations had not, in fact, been made to Mr. Adcock.

Accordingly, Mr. Adcock's application was dismissed.