Case Review - ALLIED EXPRESS TRANSPORT PTY LTD v OWENS [2011] FWAFB 2929 Fair Work Australia (Full Bench) Demotion, pregnancy discrimination and a pay cut: why Allied Express v Owens still matters

When Allied Express demoted a pregnant manager and slashed her pay by $18,000, she treated the change as a dismissal and took her case to Fair Work Australia.

The Full Bench agreed: an employer can’t unilaterally rewrite fundamental terms and then say the employee “chose” to leave.

The short story

• Facts. Ms Owens was a Customer Service & Accounts Manager on $70,000. In the lead-up to maternity leave, the company moved her “off the road” and then announced a new, lower-status role—first cutting her package by $10,000 and then by $18,000. She hadn’t agreed. She treated the relationship as over and lodged an unfair dismissal claim. (Fair Work Commission)

• Issue. Was this a dismissal (including constructive dismissal) under s 386, or did she resign? (Fair Work Commission)

• Decision. The Full Bench refused permission to appeal and left the original decision standing: the employer’s unilateral, substantial variation repudiated the contract. There was a termination at the employer’s initiative. Compensation of $25,821 (26 weeks less contingencies) was upheld. (Fair Work Commission)

  
  

What the Commission actually said

The Full Bench emphasised that, viewed objectively, Ms Owens had “effectively no option” because the company pressed ahead with a much lower salary and different role without agreement. That conduct conveyed an intention not to abide by the contract—a repudiation—so the end of employment was at the employer’s initiative.

Case Review - ALLIED EXPRESS TRANSPORT PTY LTD v OWENS [2011] FWAFB 2929 Fair Work Australia (Full Bench) Demotion, pregnancy and a pay cut: why Allied Express v Owens still matters

At first instance (as reproduced in the appeal reasons), the Commission also made a critical point on demotion: where the change involves a substantial reduction in remuneration and duties, the demotion exception in s 386(2)(c) does not rescue the employer. An $18,000 cut on a $70,000 package was “significant”.

Why employers and employees still cite Owens

• Consent matters. Discussing a gentler role before parental leave didn’t equal consent to a big pay cut. If agreement isn’t reached, you can’t impose it and then say the employee “resigned”.

• Demotion ≠ free pass. A demotion with meaningful loss of pay or responsibility can be a dismissal under s 386.

• Remedies follow. Where dismissal is found, compensation or reinstatement can be ordered; in Owens, compensation was affirmed on appeal.

Used as authority since

A recent general protections case shows Owens still carries weight. In Gurrier-Jones v OSM Australia Pty Ltd the applicant argued repudiation after a parental-leave return to a different role and a disputed bonus. She relied on Owens, and the Commission discussed the Full Bench reasoning about employees having “no real choice” when significant, unilateral changes are presented as a fait accompli. The jurisdictional objection failed because the termination was at the employer’s initiative.

Key takeaways for practice

• Get clear, written agreement before changing role, pay or reporting lines—especially around parental leave transitions.

• If the change would cut pay or status, assume s 386 risk: it may be a dismissal even if the person remains “employed” on paper.

• Handle resignations and “heat-of-the-moment” situations with care; heavy-handed process can convert a resignation into dismissal.

  
  

Citations

• Allied Express Transport Pty Ltd v Owens [2011] FWAFB 2929; (2011) 210 IR 17 (appeal refused; compensation affirmed).

• Owens v Allied Express Transport Pty Ltd [2011] FWA 1058 (as excerpted in the Full Bench reasons at [57]–[61]).

• Samantha Gurrier-Jones v OSM Australia Pty Ltd [2024] FWC 3154 (relying on Owens and discussing the Full Bench reasoning).