The State Government has won its appeal against a public servant’s successful claim for a termination payment after his position was abolished.
David Litchfield had claimed he was owed $174,000 when his job was axed, despite being continuously employed in senior positions for a year afterwards.
Industrial Court magistrate Michael Ardlie agreed with his claim in a decision last October.
However, an appeal by his former employer, the Department of Manufacturing, Innovation, Trade, Resources and Energy (DMITRE), has been upheld in a decision by three judges in the Industrial Relations Court.
The department had argued “unjust enrichment” and later replaced this line of argument with a plea based on a contract term that stated an executive will not be entitled to termination payments if appointed to another position.
The three judges agreed and concluded: “Mr Litchfield was not entitled to termination payments following the end of his employment relationship with the Department”.
“The judgement should be set aside…and an order should be made dismissing Mr Litchfield’s claim.”
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The decision means last October’s award by Magistrate Ardlie of $55,157.76, in lieu of notice, $98,390 termination payment and $19,500 by way of interest will be set aside.
The State Government had denied it had terminated Litchfield from his job in DMITRE, asserting instead that he “was provided with duties and remuneration at all relevant times until he resigned to take up new duties with another department”.
Litchfield had been appointed as Executive Director, International Market Development, on June 15, 2009, on a three year contract worth $220,631 per year.
Court documents show he was responsible for the state’s investment attraction activities nationally and internationally, export promotion, skilled and business migration attraction and the management of the state’s overseas offices.
But in mid-September 2010 when the State Budget was handed down, Litchfield’s department (then known as Trade and Economic Development) was re-badged as DMITRE and all positions were abolished.
A statement of agreed facts in the original hearings shows that at the end of September 2010 the department’s chief executive Lance Worrall called Litchfield into his office and “indicated to him that his position had been abolished along with a number of other executive positions in the department”.
The date of effect of the abolition of the position was 31 December 2010.
Litchfield, however, was retained within the department when Worrall offered him a temporary role in another position – as Director, Industry Liaison and Regional Development, the documents show.
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When that role was filled by another appointee, Worrall made a further offer of continued employment, although Litchfield asked that the title be changed.
“The proposal was that he would be known as ‘Advisor Strategic Projects’,” says the statement of agreed facts.
“In the document itself the word Advisor was crossed out and the word ‘Executive’ was written in. He (Litchfield) said that this was Mr Worrall’s hand writing.”
Meanwhile, Litchfield was eyeing other public sector jobs.
“He had made an application for a position as Director of Major Projects at Department of Planning and Local Government (DPLG),” the court documents show.
“He was successful in obtaining that position. It was at a SAES level 1 role. It was not an Executive Director but a Director.”
The new job paid $185,000.
Litchfield agreed during the hearings that following the abolition of his position at the end of 2010 until he commenced with DPLG, he had continuous paid employment at level SAES 2, consistent with his original contract.
“He said he was successful in winning the position with DPLG in May and commenced in early June.”
Worrall submitted to the court that the continuous employment meant Litchfield should not be entitled to a termination payment.
Litchfield was terminated from his position with the Department of Planning and Local Government by reason of the position having been made redundant, effective 23 December 2011.
InDaily has also learned that the executive received a second payout from a subsequent redundancy.
A spokesman for the manufacturing minister’s office told InDaily in October that “Mr Litchfield left the South Australian public service after accepting a payout from his position as major projects director.”
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