Secondments – Can an employee choose not to go on secondment? Can sending an employee on secondment constitute adverse action?

Introduction

Secondments are arrangements where an employee is temporarily transferred to work in another office (internal secondment) or for a different legal entity (external secondment). While working for the host, the secondee will remain employed by their employer.

Secondments in the legal industry are very common. Lawyers working at large commercial law firms are often sent on short term secondments to work in-house for a client. There are a number of benefits that flow from this arrangement. The client gets specialty legal advice and the seconded lawyer can help upskill the client’s staff on basic legal matters. In return the seconded lawyer builds connections with the client and hopes to obtain further work with the client when they return from secondment. The seconded lawyer continues to be employed and paid by the law firm. The law firm will have a separate agreement with the client as to how much the client pays for the secondment. Ordinarily this rate will be the lawyer’s wages plus a fee the law firm takes for providing the services.

Ordinarily a secondment is a great short term professional development opportunity for the employee concerned. However, there are some situations where an employee may not welcome a secondment, such as where the employee is concerned about relocating to another location, that the placement will involve deskilling, would make performance management difficult or would involve a significant amount of new training. In these situations, is an employee able to refuse to go on secondment?

Can an employee refuse to go on a secondment?

Lawful employer directions

Generally speaking if an employee is directed to go on secondment by their employer and this direction is a "lawful direction" then the employee must go on the secondment. A lawful direction is one which relates to the subject matter of the employee’s employment, involves no illegality and is reasonable (see Dixon J in R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday (1938) 60 CLR 601 – this case concerned a provision of an award but the provision adopted the common law test for a lawful direction).

Generally speaking it will not matter that the work completed on secondment is not interesting or that there is not enough work for a secondee. There is no common law right for an employee to be provided with work or meaningful work (note this common law position may be altered by an applicable enterprise agreement, contract of employment, or other workplace instrument).

It is important to note that an employee does not have to comply with a direction that is unlawful. Therefore if a direction to go on secondment breaches an employer’s obligation under the Fair Work Act 2009 (Fair Work Act), the employee does not have to comply with the direction. Employees should be particularly alert if the secondment occurs at the same time as a significant change within their employer’s organisations such as a new outsourcing arrangement or a merger.

Can sending an employee on a secondment be adverse action?

In the recent case of McJannet v Special Broadcasting Services Corporation t/as SBS Corporation [2016] FCCA 2937 the Federal Circuit Court considered whether sending an employee on secondment can constitute adverse action.

Ms McJannet was employed by SBS as a Presentation Coordinator Supervisor within the Technology and Distribution Division. She had worked for SBS since 1982. In late 2014 SBS entered into an agreement to outsource its playout operations to Deluxe Australia Pty Ltd. As a consequence of the outsourcing:

A number of SBS employees of the T&D division (excluding Ms McJannet and some others) were offered and accepted employment with Deluxe; and


SBS decided to retain Ms McJannet and a number of other members of the T&D division as employees. Ms McJannet was then directed to go on secondment with Deluxe in order to perform the requirements of her position.

Ms McJannet took a period of leave, resigned on 14 March 2016, and did not go on the secondment. Despite her resignation SBS encouraged her to reconsider her resignation and recommence employment but she did not take up this offer and her employment with SBS ceased.

Ms McJannet alleged a number of contraventions of the Fair Work Act and her contract of employment. Relevantly for this blog post, Ms McJannet claimed adverse action had occurred under s.340 of the Fair Work Act when SBS decided to require her to undertake a secondment (or otherwise resign) and not pay her redundancy. Section 340 of the FW Act provides that a person must not take adverse action against another employee because the other person has a workplace right (etc) to prevent the exercise of a workplace right by the other person. Ms McJannet claimed she had a right to redundancy payout. Adverse action is defined in s.342 of the Fair Work Act. Adverse action is taken by an employer against an employee if the employer injures the employee in his or her employment (s.342(1) Item 1(b)) or alters the position of the employee to the employee’s prejudice (s.342(1) Item 1(c)). SBS submitted that adverse action had not occurred as there was no "injury" or prejudicial alteration to her position, and she was not entitled to a redundancy payment.

Judge Altobelli found there was no adverse action. Ms McJannet was never in scope to be offered employment with Deluxe and was never offered a financial settlement as a consequence of the outsourcing. Judge Altobelli found the proposed secondment did not require the functions of Ms McJannet’s position to be transferred to another location and therefore she was not eligible for a redundancy under the relevant clause of the enterprise agreement. Ms McJannet was directed to go on secondment to Deluxe and was not offered resignation as an alternative.

Ms McJannet was particularly concerned about being sent on secondment because she believed it would involve deskilling, make performance management difficult, involve a new work location, involve new training, and raise problems with her supervising team located physically apart from her. Judge Altobelli found that no aspect of the secondment would have altered the position of the applicant to her prejudice and that there was no adverse action. 

 

Summary

Ordinarily, if an employee is directed to go on secondment by their employer and the direction is a lawful direction, the employee will have to go on the secondment regardless of whether the employee has to change physical work location or whether the employee will be getting challenging or interesting work. Employees should look out for any additional factors that may affect their employer’s power to send them on a secondment, such as a Secondment Policy or relevant provisions of an enterprise agreement.

It is possible that requiring an employee to go on secondment may constitute adverse action in certain factual circumstances. However, the case of McJannet v Special Broadcasting Services Corporation t/as SBS Corporation [2016] FCCA 2937 indicates that it will be difficult to establish that being sent on secondment "alters the position of the employee to the employee’s prejudice" or "injures the employee in his or her employment" under s.342 of the Fair Work Act. 

 

For further reading I recommend the case of Westpac Banking Corporation v Wittenberg [2016] FCAFC 33 which involves complicated legal issues arising from five secondments that occurred during the merger of St George Bank with Westpac Banking Corporation. You may also wish to read Swiegers v Commonwealth Scientific and Industrial Research Organisation [2015] NSWDC, a decision concerning the employer’s failure to provide a role for the secondee when the secondee returned to the employer from secondment.