Australian Commercial Catering Pty Ltd v Mrs Maria Togia

[2014] FWC 2431

[2014] FWC 2431 [Note: Appeals pursuant to s.604 (C2014/662) and C2016/3067 were lodged against this decision and the order arising from this decision - refer to Full Bench decisions dated 6 March 2015 [[2015] FWCFB 87] and 12 August 2016 [[2016] FWCFB 5467] respectively for result of appeals.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.120 - Application to vary redundancy pay for other employment or incapacity to pay

Australian Commercial Catering Pty Ltd
v
Mrs Maria Togia
(C2014/3632)

COMMISSIONER ROE MELBOURNE, 10 APRIL 2014

Application to vary redundancy pay.

[1] Australian Commercial Catering Pty Ltd (the Applicant) lost the catering contract at Robert Bosch effective from 25 October 2013 and advised employees of that fact on 16 August 2013. Ms Togia had been employed as a full time employee by the Applicant working on the Robert Bosch contract for nine years and eight months. Ms Togia was advised on that date that she could seek to continue her employment with the new provider to Robert Bosch (Alliance Catering) in which case she would be paid her entitlements by the Applicant or she may be offered an alternative position with the Applicant or if there is no other position available with the Applicant and if she was unsuccessful in continuing with the new contractor she would be made redundant.

[2] As at 23 October 2013 no alternative position with the Applicant had been found and discussions with Alliance about employment with them were continuing. On 23 October 2013 the Applicant wrote to Ms Togia and advised that they were now able to “offer you a position with us should you decline your offer with Alliance Catering.” The letter also advised “please note that if you do not take up the Alliance or ACC offer you will not be entitled to the redundancy offer.” This was a clear reference to the issue of entitlement to redundancy payments which had been the subject of earlier correspondence on 11 October 2013 where Ms Togia was put on notice that if she rejected an offer of employment with the new employer on terms and conditions substantially similar to those with the old employer then redundancy payments would not apply. On 25 October 2013 Ms Togia advised the Applicant that she was taking up employment with Alliance and consequently was not taking up the alternative position with the Applicant.

[3] The Applicant is seeking pursuant to Section 120 of the Fair Work Act 2009 (Cth) (the Act) that the 16 weeks redundancy entitlement which they say would otherwise have been payable to Ms Togia be reduced to zero on the grounds that the Applicant offered Ms Togia suitable alternative employment working on another contract for the Applicant on equivalent terms and conditions.

[4] In response to my question the Applicant advised that it was not arguing that this was a transfer of employment situation dealt with under Section 122 of the Act.
[5] This matter was subject of Hearing on 8 April 2014.  Having heard from the parties I issued a decision on transcript.

[6] For the reasons outlined on transcript I decided that the Applicant, Ms Togia, had been advised that she had the option to accept employment with Alliance and if she did so her position would be made redundant. The Applicant had put Ms Togia on notice that redundancy payments might not be applicable if the terms and conditions were substantially similar. Ms Togia accepted the position with Alliance and commenced employment with Alliance on Monday 28 October 2013, the next working day following the termination of the Applicant’s contract with Robert Bosch. The Applicant accepts that Ms Togia was made redundant by them and is seeking to reduce the redundancy payment to zero on the grounds that they found suitable alternative employment for her. For the reasons outlined on transcript I found that the employment with Alliance was not suitable alternative employment in that the job with Alliance was a casual position whilst her position with the Applicant had been a permanent full time position and that Ms Togia was offered work for significantly fewer hours each week than had previously applied when she worked for the Respondent. The Applicant effectively advised Ms Togia that her position would be made redundant if she accepted the offer of employment with Alliance and declined the offer of alternative employment with the Applicant.

[7] Given that I found that the Applicant did not obtain other acceptable employment for the employee I must dismiss the Application under Section 120 of the Act. Given that Ms Togia’s employment with Australian Commercial Catering Pty Ltd ended on 25 October 2013 it would be inappropriate for there to be further delay in the payment of her entitlements.

COMMISSIONER

Appearances:

Mr P Darmos appeared for the Respondent.

Hearing details:

2014

Melbourne

April 8

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