Application by Man to Man Pty Ltd

[2016] FWC 103

[2016] FWC 103

DECISION

Fair Work Act 2009
s.120—Redundancy pay
Man to Man Pty Ltd T/A Man to Man
v
Adele Sleiman
(C2015/6959)
COMMISSIONER GREGORY	MELBOURNE, 6 JANUARY 2016
Variation of redundancy pay.
Introduction

[1]        Man to Man Pty Ltd T/A Man to Man (“Man to Man”) decided in October this year to

close its Epping store in Melbourne’s northern suburbs. The closure took effect on

6 November and resulted in the staff at the store being made redundant. Ms Adele Sleiman

worked in the store at the time as a part-time Sales Assistant, and had been employed by the

business for more than five years.

[2]        Man to Man has now made application to reduce the redundancy entitlement otherwise

due to Ms Sleiman because it submits it made her an offer of “acceptable employment” at

another store location. Ms Sleiman opposes the application.

[3]        Mr Rowan Young, the Head of Retail, appeared on behalf of Man to Man. Ms Sleiman

appeared on her own behalf. Both parties also filed written submissions in accordance with

the directions issued, however, neither sought to cross-examine the other.

The Issue to be Determined

[1] Section 119 of the Fair Work Act 2009 (the Act) provides a statutory entitlement to

redundancy pay, with the applicable amount determined by the employee’s length of

continuous service. Ms Sleiman’s period of continuous service with Man to Man entitles her

to 14 weeks redundancy pay.

[2] However, s.120 of the Act provides the Commission with a discretion to reduce or

remove an entitlement to redundancy pay, on application, should the Commission consider it

appropriate. Section 120 states in full:

“(1)	This section applies if:
(a) an employee is entitled to be paid an amount of redundancy pay by the

employer because of section 119; and

[2016] FWC 103

(b)

the employer:

(i)	obtains other acceptable employment for the employee; or
(ii)	cannot pay the amount.

(2)	On application by the employer, the FWC may determine that the amount of
redundancy pay is reduced to a specified amount (which may be nil) that the
FWC considers appropriate.
(3)	The amount of redundancy pay to which the employee is entitled under section

i

119 is the reduced amount specified in the determination.”

[3]        In the present matter Man to Man submits the amount of redundancy pay due to

Ms Sleiman should be reduced to four weeks because it obtained “other acceptable

employment” for her.

[4]        Therefore:

 has Man to Man obtained “other acceptable employment” for Ms Sleiman as

provided for in s.120(b)(i) of the Act?

	if so, is it appropriate to reduce the redundancy pay entitlement otherwise due to
her, and by what amount?

The Evidence and Submissions

[5]        Man to Man provided a brief written submission indicating that the Epping store

where Ms Sleiman was employed closed on 6 November 2015 because of the termination of

the lease. On 13 October it offered Ms Sleiman redeployment in the same part-time Sales

Assistant role at the Man to Man store at Craigieburn.

[6]        Man to Man says the role at the Craigieburn store involved the same position and the

same responsibilities, together with the same part-time hours and hourly rate of pay. It

submits the store at Craigieburn is 14.9 kilometres from the store at Epping and represented a

reasonable redeployment opportunity as Ms Sleiman already travelled a substantial distance to

work, which it estimates at approximately 53.4 kilometres each day, when she worked at the

Epping store.

[7]        After the discussion on 13 October Man to Man submits Ms Sleiman was asked to

provide a response by the end of the week about whether she would accept the offer of

redeployment. It says she was also told if she did not accept the offer she would be made

redundant. It was subsequently informed on 16 October that Ms Sleiman would not accept the

offer of redeployment citing the fact she was in her final year of university, and the location

of the Craigieburn store was too far from her home.

[8]        Man to Man also indicated in its oral submissions that the offer of redeployment to the

Craigieburn store was the only option available to it at the time in regard to Ms Sleiman’s

position. It submits that in all the circumstances it represented a reasonable redeployment
[2016] FWC 103

opportunity, and as a consequence the Commission should exercise its discretion and reduce

the redundancy entitlement due to Ms Sleiman. In its submission that entitlement should be

reduced from 10 weeks pay to an amount equivalent to four weeks pay.

[9]        Ms Sleiman submits that she was employed by Man to Man to work as a part-time

Sales Assistant for a total of 20 hours each week. She worked on Monday from 9 a.m. until

5.30 p.m., on Thursday from 1 p.m. until 6 p.m., and on Saturday from 9 a.m. to 5 p.m. She

confirmed she was offered the option of redeployment to the Craigieburn store on 13 October,

but declined that offer on 16 October, after what she described as “extensive research and

ii

deliberation” on the basis that “the distance was too great from my home”.

[10]      Ms Sleiman submits that in making this application Man to Man has not properly

considered the impact for her of redeployment to the Craigieburn store. In her submission the

critical factor is the distance she would be required to travel from her home to the store. She

lives in Bentleigh and submits that travel to the Craigieburn store from home involves a

distance of 64.8 kilometres, rather than 53.4 kilometres as submitted by Man to Man. She

provided extracts of maps with her submissions and submits the shortest route to the Epping

store from her home is 35.4 kilometres. By comparison the shortest route from her home to

the Craigieburn store is almost 64.8 kilometres, meaning the difference in the distance

travelled from home to work would be just under the 30 kilometres.

[11]      She also indicated that these calculations were based on a route that did not involve

travel on any toll roads because she could not afford to pay the cost of the tolls.

[12]      She also indicated she had not worked at the Craigieburn store previously, but

understood the Sales Assistant role and the working hours and conditions being offered to her

at that location were essentially the same as those involved in her former role at the Epping

store.

[13]      In her submission the essential difference in terms of the redeployment option

involved the different locations and the travel involved. She said she had previously travelled

from Bentleigh to Epping by car, which generally involved travel time of between 45 and 50

minutes each way. She estimated that the cost of this travel was approximately $50 in petrol

costs each week. However, she estimated that the travel time in getting to the Craigieburn

store would be around 90 minutes and the cost in excess of $80 each week. In her submission

the extra travel time would also be limit the available study time required as part of her

university studies.

[14]      Ms Sleiman also indicated that Man to Man was wrong in suggesting she was now in

her final year of studies, and she had in fact accepted a placement for a further year at

university in 2016.

Consideration

[15]      As indicated, both parties provided submissions in this matter dealing with the

circumstances involving Ms Sleiman and the closure of the store at Epping. However, neither

party made reference to the relevant statutory provisions or case law.

[16] The provisions now contained in s.120 of the Act have been considered in a number of

previous decisions of the Tribunal. The question of what “obtains” requires was considered by
[2016] FWC 103

a Full Bench in Australian Chamber of Manufactures v Derole Nominees [Derole

iii

Nominees] . It held, firstly, that it cannot mean obtain “in the fullest sense possible” because

one employer is incapable of affecting a contract of employment with its employees and

another employer, and the word must be given “some lesser meaning.” The Full Bench

concluded:

“Viewed in this way it will be seen that the intention is not to impose an absolute test on

the employer’s ability to “obtain” alternative employment but rather it refers to action

which causes acceptable alternative employment to become available to the redundant

employee. The employer must be a strong, moving force towards the creation of the

iv

available opportunity.”

v

[17] In Datacom Systems Vic Pty Ltd v Rasiq Khan; Siddharth Desai [Datacom] the

Commission also expressed the view that the word “obtains,” in the context of s.120, should

be given a very broad interpretation.

[18]      The tests to be applied in determining what is “acceptable employment” are also well

established. It is, firstly, a test to be applied objectively and not just by whether the employee

wishes to take on the role being offered. “Acceptable” also means it must meet the relevant

standard. The decision in Derole Nominees found that considerations such as the work being

of like nature, the location, the pay arrangements, the hours of work, seniority, fringe benefits,

workload and job security might all be relevant considerations in this context.

[19]      The relevant authorities also make clear that the onus of establishing that the

alternative is acceptable rests with the employer, and in the exercise of its discretion the

Commission may decide to either completely remove a redundancy entitlement, or instead

reduce it. It has also been established that the other employment being offered need not be

identical in nature, and in this context the conclusions of Senior Deputy President Watson in

vi

Feltex Australia Pty Ltd v Textile, Clothing and Footwear Union of Australia	are noted when
he stated in the following terms:

“I accept the proposition advanced by Feltex Australia that acceptable alternative

employment is not necessarily identical employment and that the AIRC has previously

found alternative employment to be acceptable notwithstanding inconvenience to

employees and some detrimental alteration to the terms and conditions of

vii

employment.”

[20]      The Commission also found in Datacom that:

“Other employment does not cease to be “acceptable” merely because it is on terms that

are less advantageous to that of the terminating position. Tontine makes it clear that

viii

there are matters of degree involved.”

[21]      I have also had regard to the decision of Deputy President Sams in Spotless Services

ix

Australia Limited [Spotless] , which also involved a position being made redundant and a

redeployment opportunity offered at a another location. In that matter the additional travel

time to the new location was 25 minutes each way, making a total of 50 minutes extra travel

time each day in circumstances where the employee was already travelling for around

50 minutes each day to and from work. Deputy President Sams indicated in his decision that

while he had some sympathy for the employee, given the extra inconvenience and cost
[2016] FWC 103

involved, he was unable to conclude that this constituted a sufficient basis for refusing the

offer of redeployment. He therefore concluded that the offer constituted “acceptable

employment” within the meaning of s.120, and no amount of redundancy pay was applicable

in the circumstances.

[22]      There is no dispute between the parties in the present matter about the fact that the

position being offered to Ms Sleiman at the Craigieburn store was essentially the same in

terms of the role and responsibilities, the part-time hours of work, and the hourly rate of pay.

The only matter at issue concerns the additional distance Ms Sleiman would be required to

travel to work at the Craigieburn store, and the additional time and cost associated with that

travel. Ms Sleiman submits her travel costs would increase from around $50 each week to

more than $80 each week. In addition, in her submission, her travel time from home to work

to travel a further 30 additional kilometres would increase from around 45/50 minutes to

approximately 90 minutes. It is noted that these times and distances appear to be greater than

they might otherwise be because Ms Sleiman submits she is unable to afford the cost of

travelling on the more direct toll roads.

[23]      The authorities referred to make clear that an offer of other employment does not

cease to be “acceptable” simply because it is less favourable to the employee than the role

previously occupied. As indicated, Deputy President Sams also found in Spotless that

significant additional travel time to and from work did not necessarily make a redeployment

offer unacceptable.

[24]      However, in the present matter I have had particular regard to the fact Ms Sleiman was

only working on a part-time basis each week, and on one of her three days at work was only

working from 1 p.m. until 6 p.m. This would mean on this occasion that her travel time to and

from work would represent more than half the time she actually spent at work had she

accepted the offer of work at the Craigieburn store, and in any case her travel time each day

would be around three hours, or almost double what it was previously.

[25]      I am satisfied that when viewed objectively this represents a substantial additional

inconvenience to Ms Sleiman in terms of the additional time and cost involved. However, at

the same time I accept that Man to Man has attempted to make available to Ms Sleiman the

only redeployment opportunity open to it at the time of her redundancy.

[26]      Having had regard to the relevant legislation and the relevant authorities I am

therefore satisfied it is appropriate in all the circumstances to decrease the redundancy

entitlement that would otherwise be due to Ms Sleiman from the amount of ten weeks to an

amount of seven weeks. However, it is also noted that this is more than the amount of four

weeks that Man to Man suggests it is appropriate. An order to this effect will be issued in

conjunction with this decision.

COMMISSIONER

[2016] FWC 103

Appearances:

Mr Rowan Young and Ms Bree Engert appeared on behalf of Man to Man.

Ms Adele Sleiman appeared with Mr Patrick Ryan.

Hearing details:

2015.

Melbourne:

11 November.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR575876>

i

Fair Work Act 2009 (Cth) at s.120

ii

Submissions of Adele Sleiman received by email 4 November 2015 at page 1

iii

(1990) 140 IR 123

iv

Ibid

v

[2013] FWC 1327

vi

PR974699

vii

Ibid at [89]

viii

[2013] FWC 1327 AT [9]

ix

[2013] FWC 4484