Employer said it implemented a quarterly review system, which revealed that there was no need for an HR-style role that the manager was previously doing
An office manager challenged the employer's argument that she resigned, contending the employer made her position redundant during parental leave and offered a demotion requiring front desk work and hearing aid processing.
The worker argued the employer decided the HR role was no longer needed, failed to consult about redundancy or business sale, and paid out accrued entitlements, indicating employment ended.
The employer maintained it offered an available position nearest in status and pay to her pre-parental leave position, sought to accommodate the reduced hours request, and the worker declined the offer, meaning employment ended at her initiative.
Employment and parental leave return
The worker commenced employment with the employer in March 2016 as a health care administrator coordinator.
In August 2019, she was appointed to the office manager position, with duties including administration supervision and performance management, administrative operations management, staff relations and workplace wellbeing, including mentoring and conflict resolution, and maintaining administration policies and procedures.
The worker embarked on parental leave in mid-May 2023. In April 2024, she requested an extension until February 2025. The employer agreed. On 16 December 2024, the worker sent an email stating she planned to return in February, working Mondays and Tuesdays, totaling 13 paid hours per week.
On 21 December 2024, the employer's director wrote: "During your absence, we have implemented a robust quarterly review system for all teams that is working very well. We have a stable admin team, and the task management strategies we are using are effective. As such, there is no need for the HR style role you were previously doing. We are happy to accommodate the hours you are proposing, but would need to collaborate on what the role would look like."
On 28 December 2024, the worker wrote: "Would you please email anything about what you have in mind for my role? All I have to go off is your email saying there's no need for the HR style role I was doing. It sounds like you're going to propose some significant changes. I'm not sure that a single Zoom meeting during this period is going to achieve the clarity that you or I are looking for."
Staged approach proposal
On 10 January 2025, the director wrote: "We have introduced a successful quarterly review process. With these systems in place, combined with a smaller overall team, the business no longer requires a dedicated HR role. So I am going to propose a bit of a staged approach. I think long term it will be possible to move you back into an HR performance management role, but I think this will be difficult in the short term due to the many changes in process, the staff who are unknown to you and the current size of the team."
The director proposed "short term" and "long term" objectives. In the "short term" stated to be three to six months, she proposed the worker manage the info box, action all emails, assist with hearing aid order processing and associated audiology tasks, manage recruitment of new administration staff and work on front desk reception as required.
The "long term" objective, to occur once the worker was "more integrated back into the business", would see her coordinating the quarterly review process, assisting the team leader in managing individual performance issues, and training staff.
On 15 January 2025, the worker wrote: "I would like to return to my previous role as negotiated when I returned from maternity leave in 2022, or to other HR and management duties that are as close as possible to those before I went on maternity leave. It is not clear from your emails if you're saying that my previous duties are no longer needed, or that this staged approach is a requirement for me to return to those duties."
Worker stated proposal significant demotion
On 30 January 2025, the worker wrote: "In these particular circumstances, where you have initiated a significant redesign of my role, I'd prefer to continue emailing so I have time to review and consider the proposed options. You have proposed that the best use of my initial 13 hours per week is managing the info box. You have referenced recruitment duties, but only in the time available after I personally action every email and voicemail, assist with hearing aid processing, and cover the front desk reception, as needed. Your longer-term proposal, which is conditional on my being more integrated into the business, is still a reduction of my current role. As a whole, this proposal not only seems like a significant demotion but suggests that my particular contributions are no longer valued."
On 3 February 2025, the director wrote: "In my email of 21 December, I advised you that the HR style role you had previously been doing was no longer a business requirement due to the implementation of a formal staff management and performance review quarterly process. I proposed an approach that could see the redevelopment of the role over time, once you had been brought up to speed with the changes that have occurred in the last two years. Yes, I believe a staged reintegration is required. You have been out of the role for almost two years. It is important to earn the respect of the other staff members in order to do any kind of HR or performance role effectively, and this takes time."
On 11 February 2025, the worker wrote: "You have clearly indicated that my pre-parental leave job no longer exists. It is clear that the redeployment option you've proposed is not a suitable alternative position, as your proposal involves a significant demotion and is therefore not reasonable in terms of the status of my pre-parental leave job and career pathway. I understand that these circumstances trigger a redundancy process which should be commenced now that it is clear there are no suitable alternative positions for me in the business."
Accrued entitlements paid out
On 14 February 2025, the director wrote: "I have not made mention of redundancy during my discussions with you. We are keen to welcome you back next month. We can provide 13 hours per week on the days and times you have requested. Your pay will remain at the same level. We have provided a reasonable, time-specified pathway, with retraining requirements, back to your previous or a similar role. It is not completely clear from your email if you intend to resign. Please clarify if this is your intention."
A few weeks later, the worker's lawyers sent a letter asserting the position had become redundant, alleging contraventions, and proposing settlement terms. There followed extensive correspondence between parties attempting to negotiate a resolution.
On 7 March 2025, the employer sent a letter stating: "In light of your client being unwilling to engage further in a process to suitably re-employ her, we feel that we have no option but to accept that she will not be returning to our workforce. We do not necessarily accept that this is a redundancy rather than a resignation."
The parties reached an agreement on settlement terms, except for the date to be included as the worker's "Termination Date". The employer proposed 11 March 2025; the worker suggested 1 May 2025. The disagreement over that date ended the negotiations.
On 14 May 2025, the director sent an email stating: "We acknowledge that the issues surrounding the employment termination are not clear-cut. We have never disputed that she is entitled to accrued annual leave and long service leave. In order to progress this matter, as a goodwill gesture, we have just now made payment of the agreed amounts into her bank account. We will still require the return of all possessions."
On 15 May 2025, the worker's lawyer sent an email stating: "My client has taken your email, the payment of her accrued entitlements and your request for the return of property as a clear indication that her employment has now been terminated." Meanwhile, on 4 April 2025, the employer entered into an agreement to sell the business. It did not disclose the sale to the worker.
Commissioner finds dismissal occurred
The Commissioner drew conclusions from the correspondence. First, during the worker's absence on parental leave, the employer decided that it no longer required the position to be performed by anyone. This was reflected in the director's email of 16 December 2024, stating "there is no need for the HR style role you were previously doing".
The same message was conveyed in the director's emails of 10 January 2025 and 3 February 2025. The Commissioner did not accept the employer's submission that at no time did the employer advise the worker that her role no longer existed. While those precise words may not have been used, that was the clear import of the director's messages.
Second, as of December 2024, the employer did not know precisely what role was to be offered to the worker on her return. Third, there continued to be uncertainty as to the position that the worker would occupy in the business.
The closest the employer came was the director's email of 10 January 2025, putting forward a "staged approach". But that was a proposal for discussion rather than a clear offer of an alternative position. There was no certainty as to when the "long-term objective" would be met.
Fourth, the Commissioner accepted that the director had made requests that the worker meet with her to discuss the ongoing employment relationship. At the same time, it was reasonable for the worker to seek certainty as to what was being proposed in order to prepare for any meeting.
The worker's response was understandable in the context of the messages she was receiving. Fifth, while one director testified that his intent was always for the worker to return to a management role, this was not reflected in the correspondence. The other director had made clear in her emails that the worker's return to management duties was subject to her being "more integrated back into the business".
Sixth, the Commissioner inferred that the duties that the employer proposed that the worker perform "in the short term" were not considered by the business to be "management duties". To that extent at least, the proposed duties were of a lesser status than the position.
Seventh, the employment did not end on 11 March 2025. It was clear from the correspondence that there was a diminishing likelihood of the worker returning to work the longer the correspondence continued. However, there was no evidence that the worker resigned.
Eighth, it was the employer who first took action that was unequivocally predicated on the employment having come to an end. On 14 May 2025, it paid out the worker's accrued annual leave and made a payment of pro rata long service leave. It was also relevant that on the same day, the employer requested that the worker return its property.
The Commissioner found, on an objective analysis, that the employer determined that the position was no longer required. It delivered equivocal messages to the worker as to her ongoing role, while making clear she would be required to take a lesser role in the "short term".
Most significantly, on 14 May 2025, when negotiations fell apart, it paid out her accrued entitlements and demanded the return of its property. The Commissioner found the conduct of the employer was the principal contributing factor that resulted in the termination of employment. That termination occurred on 14 May 2025.
