Unpaid during COVID, he never said no, so the court said he agreed

Mr Olimpio started at the law firm Dentons in Sydney on 2 December 2019 as a boardroom concierge. A few months later COVID-19 restrictions closed the boardrooms, and without in-person meetings his job could not be done.

In April 2020 the firm proposed, as an alternative to redundancy, cutting hours and pay to nil: a "furlough". Its correspondence said that without a choice by the deadline, "we will presume you have accepted the final proposal". Mr Olimpio asked questions, which were answered, but did not reject the proposal. The furlough was extended twice, each time with an invitation to say no. He did not. He went back to work on 11 January 2021 and later resigned.

He then brought a small claim for $41,422.05 in wages for the unpaid period, plus leave and superannuation. His contract said any amendment had to be agreed in writing and signed, and another clause, he said, meant any direction not to work had to be on full pay. Silence and questions, he argued, were not acceptance. Dentons relied on his emails and on Teams messages it said he had sent, one reading "accepted lol"; he challenged that evidence.

A Registrar dismissed the claim. Judge Humphreys heard it afresh and dismissed it again. Leave granted by an employer "as an indulgence" outside the contract is usually unpaid, the judge said, and that was what the firm had done instead of making him redundant. The correspondence showed he could have rejected the proposal. "His acceptance was occasioned by his silence", and silence was "specifically contemplated" in the letters. With no pay owed for the period, the court did not need to decide which award applied.