Former Tabcorp chief executive Adam Rytenskild has had a major win in his unfair dismissal claim against Tabcorp, with the Fair Work Commission finding he did not voluntarily resign when confronted by an allegation which led to his departure in March this year.
Tabcorp had challenged Rytenskild’s unfair dismissal claim on the basis that it was not filed in time, and that he hadn’t been dismissed from the role as he had voluntarily resigned when confronted with allegations that he had made an offensive remark about a regulator.
However, on the matter of the timing, Gerard Boyce, the deputy Fair Work Commissioner determined that while Rytenskild’s claim for unfair dismissal wasn’t filed until June 4, he was not finally released from his duties with Tabcorp until he received his final payout on May 14, so Tabcorp’s objection on those grounds was dismissed.
On the question of the manner of Rytenskild’s departure, Boyce said that while the then-chief executive had offered to resign, he had been given no other option by Tabcorp, and his departure amounted to a dismissal.
“This is not a case in which the Applicant was responding to the circumstances as he subjectively perceived them. Indeed, I do not accept that the evidence identifies any choice to which the Applicant had in response to Tabcorp’s conduct other than resignation,” Boyce said.
“Tabcorp’s evidence and submissions do not identify any such choice, or any situation by which the Applicant was to remain the CEO of Tabcorp post 14 March 2024.
“I find that the Applicant has proven on the balance of probabilities that the cessation of his employment with Tabcorp was a “dismissal” within the meaning of s.386(1)(b) of the Act.”
The hearing in Sydney set out the timeline of events which led up to Rytenskild’s sudden departure.
It heard that Tabcorp’s board was first made aware of an allegation over Rytenskild’s behaviour on February 29 this year.
The allegation surrounded a comment supposedly made in an internal meeting in August 2023 attended by John Fitzgerald (Tabcorp’s Chief Legal and Risk Officer) and Joel Williams (Tabcorp’s Head of Regulatory).
It was claimed that an inappropriate comment was made about the female CEO of the Victorian Gambling and Casino Control Commission.
The board investigated the allegation, considered it substantiated, and had determined that it needed to terminate Rytsenkild’s employment immediately.
Bren O’Brien
Rytenskild was to attend a board sub-committee meeting in Melbourne on March 14 at 8am, but the board was meeting nearby to formulate its decision and plan for his departure.
The CEO was kept in the dark until 11am, when he was asked to attend a meeting at the offices of Korda Mentha.
He then met with chairman Brice Akhurst and board members David Gallop and Raelene Murphy.
Rytenskild denied the allegation but was advised that the Board considered there to be no other way forward, or that the Board had no option but to terminate his employment.
He asked if there was an option for him to resign, a decision which was referred back to the board for discussion and agreed to. However, the decision to resign had to be made by 3pm, although that was later extended to 4pm.
Rytenskild had asked for an extension to 12pm the next day to receive further advice but that option was denied.
Bren O’Brien
The applicant’s counsel, Kim Anderson, had characterised this as Hobson’s Choice, the illusory concept that free choice is available when there is only one actual option. Boyce agreed with this characterisation in his judgment.
“Such a choice might also be labelled as a “Morton’s Fork” (i.e. a false choice between two different options, with each option having the same equally undesirable outcome), or be said to be consistent with the idiom “all roads lead to Rome” (i.e. there being multiple ways to achieve the same outcome, in this case, the ending of the Applicant’s employment),” he said.
“The evidence is clear that both of the options (or choices) put to the Applicant on 14 March 2024 were a means to the same end. As Mr Anderson submitted, there was no scenario or option put to the Applicant by Tabcorp that would result in his continued employment with Tabcorp post 4pm on 14 March 2024.”
In his ruling, Boyce said a notice of listing setting the matter down for a conference between the Commission and the parties will be issued in due course.
