A judge correctly defined a former Woolworths finance executive as a middle management employee when he determined the notice period for her dismissal, the WA Court of Appeal has found.
Woolworths terminated the employment of its WA financial services manager in late 2003 after she refused several alternative positions offered to her after the removal of her previous position as a result of a restructure.
She then commenced proceedings against the company for several alleged breaches of her employment contract, including its failure to provide reasonable notice of her termination.
The retailer argued in the hearing that the executive had received several communications offering her alternative positions and articulating that her employment would be terminated if she refused to take up any other role.
The company argued that these communications provided sufficient notice of termination and that the employee, in refusing to take up another role, had repudiated her contract.
However, Justice Stephen Hall found that Woolworths had summarily terminated her contract without the grounds and had breached the contractual obligation to provide reasonable notice (see Related Article).
He then determined that the former manager was entitled to four months' notice and ordered Woolworths to pay her $59,623, plus interest.
In determining the appropriate notice period, Justice Hall was required to take into account circumstances such as the nature and importance of the job, along with her salary, length of service, the time it would likely take to obtain other employment and the period it was likely she would have remained employed if the dismissal had not occurred.
In assessing these factors, Justice Hall accepted that the former manager was considered to be in an "executive" position, but that there were 496 other Woolworths employees in that category, 14 of them in WA.
He also noted that the executive did not have the same level of responsibility as her counterparts in eastern states and determined that her State-based accounting role could best be described as a middle management role – "one with significant operational and supervisory responsibilities but not one with responsibility for making broader strategic management decisions".
He said her salary of $103,000 a year, superannuation, car and access to incentive plans also supported his opinion that she was not a senior executive in the company structure.
Appeal against notice finding
The former manager appealed against the finding that she was entitled to four months notice, arguing that she was entitled to 12 months and possibly longer.
Her appeal was based on alleged errors by the judge in defining her as a middle manager, in failing to include her periods of maternity leave in her overall length of service and in not finding that her chances of obtaining other employment had been adversely affected by the summary nature of her dismissal.
However, Court of Appeal President, Justice Carmel McLure, Justice David Newnes and Justice Jeremy Allanson found that there was no substance to her arguments.
In relation to her being defined as middle manager, the full bench said that this was an "apt description".
"In the context of the respondent's national operations and organisation, it is evident that the [executive's] position was not at the highest levels of management. . . it was not at the highest level in this State."
On the inclusion of maternity leave in overall service, the full bench directed the executive to the Minimum Conditions of Employment Act 1993, which excludes such leave in calculating the period of service under a contract of employment.
The willingness of Woolworths' management to provide the executive with a reference if she had asked for one would have offset any concerns about the summary nature of the dismissal affecting the executive's chances of future employment, the Full Bench said.
Rogangardiner v Woolworths Ltd [2012] WASCA 31 (21 February 2012)