FWC examines workplace transitions and employee rights
The Fair Work Commission recently dealt with a case where a senior shopping centre manager claimed his employer, a major commercial property management company, either terminated his employment or forced him to resign when they lost their management contract to a competitor.
The case focused on whether a series of events around contract transition amounted to dismissal under the Fair Work Act 2009.
The worker argued his employer's conduct left him with no real option but to end his employment, while the employer maintained they actively tried to keep him employed in a different capacity.
The worker had managed the shopping centre since 2018, having transferred to the commercial property manager when they won the centre's management contract. In March 2024, their client, the property investment company, announced it would move its property management services to a competing firm from 30 June 2024.
During several meetings between March and June 2024, the worker sought clarity about his future employment. Internal emails revealed the employer's head of strategy saying: "I'm not going to pay a redundancy to anyone who wants to stay on the asset and get a job the following day with [the competitor] on the same terms."
The employer repeatedly stated they would find another role for the worker. His employment contract included terms about possible relocation and duty changes, with a three-month notice period required from either party.
When the worker asked about redundancy in May 2024, the head of human resources wrote in an internal email: "While I appreciate [the worker's] concern and requirement for information, technically his employment is not being made redundant from [the employer]. The client will cease their contract, but [the worker] is still a [employer] employee and the intention, as far as I understand it, is to retain his employment and to find a comparable role."
Three HR staff members told the worker between April and May 2024 that they hadn't found "comparable roles" for him. Meanwhile, unknown to his employer, the worker had started discussions with the competing firm about continuing his current role under their management.
The worker later claimed these redeployment discussions lacked specific details about responsibilities, remuneration, and job descriptions.
On 28 June 2024, the employer presented two choices: take on expanded duties as a director of property and asset management at his current pay grade, or accept an exit package with eight weeks' pay plus notice period payments.
The head of human resources stated during this meeting: "While there is great empathy and recognition of the difficulty that you and your colleagues have experienced over the past months, there appears to be no recognition of the efforts extended to secure your peace of mind and on-going employment."
After starting personal leave in late June, the worker claimed on 11 July that his employer had ended his contract by failing to provide suitable alternative employment.
The FWC discovered that by May 2024, the competing firm had already assured the worker of his previous role, though he hadn't revealed these discussions to his employer. Evidence showed he was trying to secure both his entitlements from his current employer and the new position with the competitor.
The Commission explained: "The evidence is clear that [the worker] was engaged in direct discussions with [the competitor] well before the alleged frustration of his employment contract by [the employer], and had secured a commitment from [the competitor] that they would offer him his existing role."
The Commission concluded: "The evidence supports the conclusion that the employment relationship was brought to an end at the initiative of [the worker] because he wanted to pursue employment with [the competitor]" and dismissed the application, finding it lacked jurisdiction under the Fair Work Act 2009.
