The Commission has dismissed a claim for denied contractual benefits on the basis that the applicant was not constructively dismissed by his employer. It found that the employer did not repudiate the applicant’s contract of employment and that even if there was a repudiation, the applicant affirmed the contract by continuing in his position for almost five months after the purported repudiation.

Background

In late 2018, the applicant was approached by the respondent, the University of Western Australia, to discuss a possible position with the respondent in relation to a finance transformation project (Project) the respondent was proposing to implement.

The applicant entered into a contract of employment for the position of Project Analyst on a fixed term basis for two years. A significant component of the Project was the ‘Total Accounting System Replacement’ (TASR). To progress the TASR, a business case was required to be approved by the senior executive. However, because of financial constraints, the business case was not approved.

Contentions

The applicant maintained that it was the intention of his engagement to take a lead role in the Project and the non-approval of the TASR led to a substantial reduction in the scope of his duties and responsibilities. He argued that he was then provided with no ‘meaningful work’. The applicant argued that the effect of this was a repudiation by the respondent of the applicant’s contract, which led to his resignation in July 2020.

The applicant claimed that he had no alternative but to resign and maintained that he was ‘constructively dismissed’ because of the respondent’s repudiation of his contract. He sought payment under the termination of employment provisions of his contract, totalling over $100,000.

The respondent contended that the applicant had no entitlement under his contract as he voluntarily resigned from his employment. It denied that the changes made to the Project led to a sufficiently major alteration to his duties to constitute a repudiation of his contract.

The respondent relied upon the express terms of the contract, which it said enabled the respondent to allocate varied duties to the applicant or even no work at all, as long as he was continued to be paid.

Findings

Senior Commissioner Kenner found that the respondent did not repudiate the applicant’s contract of employment. He found that the contract provided express terms that allowed the respondent to designate duties outside the scope of the applicant’s ‘usual role’, and even assign the applicant no work as long as he continued to be paid in full. Kenner SC determined that the applicant’s submission that the respondent had to provide him with ‘meaningful work’ could not be sustained and was contrary to the express terms of the contract.

Kenner SC also found that there was an express ‘entire agreement’ clause and the applicant could not rely on statements made to him before his acceptance of employment.

In addition, Kenner SC found that there was a significant delay in the applicant claiming his contract of employment had been repudiated, constituting a dismissal. He noted that the applicant continued to work in his position for almost five months after the alleged repudiation occurred. Kenner SC found that even if there was a repudiation, it would be open to conclude that the applicant affirmed the contract and lost his right to regard himself as dismissed.

The application was dismissed.

The decision can be read here.