Carney Townsville Partnership T/A Mike Carney Toyota
[2022] FWC 3369
•23 DECEMBER 2022
| [2022] FWC 3369 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.120 - Application to vary redundancy pay for other employment or incapacity to pay
Carney Townsville Partnership T/A Mike Carney Toyota
(C2022/6160)
| COMMISSIONER SPENCER | BRISBANE, 23 DECEMBER 2022 |
Application for variation of redundancy pay – employee offered employment with applicant employer in different role – whether acceptable alternative employment obtained – consultation- discretion exercised to reduce redundancy payment –order made.
This decision relates to an application made under section 120 of the Fair Work Act 2009 (the Act). The application has been made by Mike Carney Toyota Pty Ltd Toyota (the Applicant).
The Applicant has applied to the Fair Work Commission (the Commission) seeking that the redundancy entitlement pursuant to Section 119 of the Act, for Ms Robin Gambrill (the Respondent) be reduced from four weeks to nil.
The Applicant has made this application, pursuant to section 120(1)(b)(i) of the Act, on the basis that the Applicant submitted that it had obtained other acceptable employment for the Respondent.
Subsequent to receipt of the section 120 application, Ms Gambrill filed a General Protections application, in which she submitted that her workplace rights had been breached. These were outlined in Question 3.2 of the Form F8 as being ‘section 340 protection, section 343 coercion, section 344 undue influence or pressure, section 351 discrimination due to physical or mental disability, and section 352 temporary absence, illness or injury’.
Determinative conferences were held for both the section 120 application and section 365 applications. The material filed by Miss Gambrill covered both of these applications, and accordingly, given she was self-represented, some latitude was provided to her to address her material as she sought to do in relation to both applications. Guidance was provided regarding the material relevant to the legislative tests of the separate applications. Neither application could be resolved. A certificate was provided in the section 365. This decision deals only with the section 120 application
The Respondent had been employed as a Managerial Assistant covered by the Clerks Private Sector Award 2020.[1]
Two meetings were held to discuss her redundancy and future alternative employment with the prospect of further meetings. Correspondence was provided regarding the date on which the redundancy would become effective. The correspondence also set out the position description, providing details of the newly created Process Auditor position. The remuneration and all employment conditions were the same for this alternative position. The correspondence did not inform the Respondent that if she did not accept the alternative employment, she would forego or not be paid, her redundancy payment. The Applicant conceded that this was not set out to her in the discussions attended either.
The Applicant submitted that subsequent to the redundancy allegations of bullying were raised by the Respondent against a number of other employees
The Respondent set out that the immediate supervisor of the Applicant had determined that in managing his work, he no longer required the applicant or anyone else working in the role of an assistant for him and accordingly, the job has been made redundant. The Applicant submitted that it had obtained other acceptable employment for the Applicant, in terms of other positions within the business that were offered to the Applicant. The position the Applicant stated they obtained for the Respondent was that of Process Auditor, and in those circumstances, the Applicant sought the redundancy payment be reduced to nil.
The Applicant argued that the position offered to the Respondent was of the same status, same working hours, and same workplace with the same rate of remuneration. The Respondent, however, stated that she did not consider the job was of the same status as it was not working with the Management Team, and she was uncertain about the role, the duties or its continuity given it was a newly devised role.
Directions were set for both parties to file submissions and evidence in relation to the application. A Determinative Conference was undertaken however, immediately prior to the conference, it was apparent that some of the materials the Respondent (filed with some proximity to the listing) were not able to be read. Also, submissions made by the employer representative at the conference had not been incorporated into the material provided prior to the conference.
Accordingly, further Directions were set to provide procedural fairness in order that the documents and submissions that both parties relied on were clear. Further, the Applicant had set out on their application details of their Legal Representative. The Applicant, at the time of the Conference, indicated that they were not proceeding with legal representation. However, given the further Directions that were set the Applicants indicated that their Legal Representative had returned from leave and was available. Accordingly, Directions, pursuant to section 596 of the Act were set, and submissions regarding permission to appear for the Respondent’s Lawyer were received.
The submissions and the position of the Respondent regarding the Applicant’s legal representation were considered. Legal representation was granted for the Applicant to assist in bringing an efficient and effective presentation of the case, given the series of subsequent filing and re-filing of documents and the necessity to seek additional material from the parties in relation to the relevant tests and to manage the merging of the material between the 2 applications.
No jurisdictional objections were raised. Whilst the Applicant was aggrieved that she could not continue in her role, it was not contested that her role no longer existed. It was also agreed (prior to considering the offer of the alternative employment) that the Respondent was entitled to four weeks redundancy payment under the Act.
After the filing of further material by both parties, a further Determinative Conference by telephone was set. This listing provided for both parties to comprehensively address the issues between the parties. Neither of applications were unable to be resolved.
Relevant Legislation
The redundancy payments provided by s.119 of the FW Act as part of the NES are established in the following terms:
“119 Redundancy pay
Entitlement to redundancy pay
(1) An employee is entitled to be paid redundancy pay by the employer if the employee’s employment is terminated:
(a) at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or
(b) because of the insolvency or bankruptcy of the employer.
Note: Sections 121, 122 and 123 describe situations in which the employee does not have this entitlement.”
Amount of redundancy pay
(2) The amount of the redundancy pay equals the total amount payable to the employee for the redundancy pay period worked out using the following table at the employee’s base rate of pay for his or her ordinary hours of work:
Redundancy pay period Employee’s period of continuous service with the employer on termination Redundancy pay period 1 At least 1 year but less than 2 years 4 weeks 2 At least 2 years but less than 3 years 6 weeks 3 At least 3 years but less than 4 years 7 weeks 4 At least 4 years but less than 5 years 8 weeks 5 At least 5 years but less than 6 years 10 weeks 6 At least 6 years but less than 7 years 11 weeks 7 At least 7 years but less than 8 years 13 weeks 8 At least 8 years but less than 9 years 14 weeks 9 At least 9 years but less than 10 years 16 weeks 10 At least 10 years 12 weeks
The application has been made under s.120 of the FW Act which provides as follows:
“120 Variation of redundancy pay for other employment or incapacity to pay
(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
(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 119 is the reduced amount specified in the determination.”
Background
The summary of the Respondent’s predominate submissions is contained in the following letter that was sent by the Applicant to the Respondent regarding the redundancy and the offer of alternative employment within the company.
EMPLOYMENT WITH MIKE CARNEY TOYOTA
Dear Robin,
There are a number of employment relates (sic) matters that requires both of our attention. We have detailed each of these matters in this correspondence.
Please note that each of these matters are separate and distinct matters.
1.Your employment with us commenced on 7 December 2020 as a Barista
2.You transferred into a Managerial Assistant position of employment to the General Manager (Michael Blucher), with effect from 27 April 2021;
3.Due to operational requirements and insufficient work for you to complete as the Managerial Assistant to the General Manager, your position of employment transitioned to include being the managerial assistant to the then Operations Manager (Brad Haskins) and also to include general administration duties;
4.You also undertook general assistant duties for the Group HR Manager (Graham Pemberton), until an assistant was employed to fulfil this role in January 2022;
5.The Operations Manager ceased employment with us in March 2022 and the Group Fixed Operations Manager was not replaced in this capacity;
6.Your current position title is the Managerial Assistant to the General Manager and the Operations Manager.
We completed a comprehensive review of our business operations, procedures, and structures.
In July 2022 senior management decided that your position of employment was no longer required to be completed by anyone i.e. your position of employment was to be rendered redundant.
Your position of employment is no longer required, and, on this basis, the proposal was to render your position of employment as redundant. The task and responsibilities of your position of employment would be distributed to other existing employees of the business.
We have consulted with you in relation to this redundancy and had many discussions with you in this respect.
We have reviewed our current workplace structures and positions in attempt to redeploy you within our business and believe that there is reasonable opportunity for you to be redeployed into an alternative position of employment.
During a meeting that occurred between you and the Group HR Manager on Thursday, 21 July 2022 during consultation on the proposed redundancy, you were offered an alternative position of employment in our business as the Process Auditor. The position description for the Process Auditor was provided to you at this time. You informed the Group HR Manager that you wished to consider this alternative position of employment over the weekend, which the Group HR Manager informed you was perfectly acceptable.
The Process Auditor has an identical renumeration level and the same fundamental conditions of employment as the Managerial Assistant position of employment. We also believe that you have the requisite skills and competency to perform this position of employment.
Whilst there has been ongoing consultation surrounding the redundancy of your current position of employment, we have not received confirmation from you as to whether you wish to accept the position of Process Auditor.
We understand that you upset about the redundancy of your current position of employment and that is perfectly understandable. However, we must proceed with implementing our business operational and structuring changes. You are required to meaningfully cooperate with us in explore or considering options of alternative position of employment.
Your position of employment will be made redundant with effect from Wednesday, 7 September 2022. This correspondence is your notice in this respect.
If you wish to accept the position of Process Auditor then you should let us know by close of business on Monday, 29 August 2022. The offer of employment will then be forwarded to you for your perusal, confirmation and signing. You can then consider the terms of employment further and at that stage, you may still to reject or accept the Process Auditor position of employment.
If we have not received confirmation from you by this date that you accept the Process Auditor, we will proceed on the basis that you do not wish to accept the offer of employment and your employment will come to an end by way of redundancy with effect as and from Wednesday, 7 September 2022. You will then be paid all accrued wages and entitlements owing to you up to this date.
Please note that there are other positions of employment in our business that we actively recruit for, however, we have not offered these to you on our understanding that they would not be suitable to you. This includes general position of employment (such as on our front counter) and/or positions of employment hat you do not hold the relevant qualifications for (such as a mechanical engineer). If you wish to be provided with other redeployment opportunities in our business then you should let us know.
YOUR COMPLAINT OF BULLYING
First Complaint
At 6:01 pm on Thursday, 21 July 2022 you sent a text message to the General Manager as follows:-
I wont be in tomorrow, I am requesting stress leave. If you want me to ring as per policy I can do so.
The General Manager and you were in constant discussions on work matters throughout the working day and there was no indication that anything was wrong. Discussions were friendly, pleasant, and business like. However, the General Manager was concerned about how you may be feeling following the meeting relating to your redundancy.
The General Manager asked by reply text message if everything was okay. No reply was received.
At 8:14 am the following morning of Friday, 22 July 2022, the General Manager contacted you by phone to ask if everything was okay. At this time, you referred to feeling “overwhelmed” about the redundancy (which is of course completely acceptable), and also a statement that you are “sick of being bullied by Chris and Lacey” (referring to myself as the Dealer Principal and my executive assistance Lacey Wade).
When the General Manager asked for examples of the bullying, you could not and/or would not answer this question. You referred back to the redundancy only.
The General Manager assured you that the redundancy was for genuine reasons and that it was believed that you could excel in the Process Auditor position of employment.
The General Manager did not wish to discuss details with you whilst you were on personal/carer’s leave, so expressed his concern for your welfare and offered support should you need it. The General Manager suggested that you place an ‘out of office’ on your emails, so you can have a break without undertaking any work.
To date, no complaint has been received by you in relation to the allegation of bullying against myself as the Dealer Principal or my executive assistance Lacey Wade. It is not known if this was said by you during your conversation with the General Manager in sudden impulse (particularly given the complaint that had been made against you by Lacey Wade – detailed below), or if you genuinely believe that you have been subjected to bullying.
If you feel that you have been bullied in any manner by myself as the Dealer Principal or my executive assistance Lacey Wade then you should complete a ‘Employee Complaint Form’ and we will arrange for a proper and reasonable investigation to be completed. The investigation would not be completed by myself.
Second Complaint
When the Group HR Manager attempted to arrange a meeting with you on Tuesday, 16 August to further discuss the redundancy, your reply email at 10:42 am on Wednesday, 10 August 2022 included the following:-
Please can I reschedule this meeting to Thursday 12:00-1:00pm?
The last meeting, we had made me feel extremely uncomfortable and bullied to where I took stress leave.
I do not want anymore issues that continue to affect my Health.
The reply email from the Group HR Manager at 12:21 pm on Wednesday,10 August 2022 included the following:-
I am pretty aghast by your accusation of bullying! If you believe I have bullied (which you obviously do by the comments below) please contact the General Manager and or the Dealer Principle to make the complaint, whom I have now made aware, this will then need to be investigated as this is your option to escalate this issue, above me. I and the dealership takes all accusations of bullying very seriously, so I have cc’d MB and CC, in to this email.
Our Meeting on the 21st of last month, we had a conversation in which I explained that the role that you are currently in will be made redundant and you were offered another position within the dealership which you were very well suited for. This still stands and has not changed, this is my professional approach to the changing workforce. However in light of the below accusations, I will be cancelling the meeting until this situation is resolved.
Your reply email at 12:49 pm on Wednesday, 10 August 2022 included the following:-
With the content that was said and disclosed to me in the manner it was, seems justified for the severity of my comments and feelings as I am being treated unjustly within the business. This is an ongoing issue that has not stemmed from one single meeting.
Any meetings/investigations moving forward I would like in advance to organise a representative on my behalf to attend as a support person. As I do not feel comfortable continuing to have them alone as you could understand the predicament I am left in after said meetings/conversations.
Next Thursday 12-1pm is an available time to discuss still, if this suits Michael / Chris.
We take allegations of workplace bullying very seriously. When an accusation of this nature is made, it is properly investigated and disciplinary action taken if that is considered necessary.
Your allegation of bullying against the Group HR Manager was something which the Group HR Manager denies. He believes that he has taken reasonable management action only and that your complaint of bullying is related to the redundancy only.
The ‘Employee Complaint Form’ was emailed to you on 10 August 2022. To date, this ‘Employee Complaint Form’ has not been completed and returned to us.
On Wednesday, 10 August 2022 two senior female staff members (Belinda Leppien (Senior Manager) and Hollie Duce (HR) was requested to complete an investigation into this allegation by you of bullying against the Group HR Manager. An email was sent by the HR manager Graham Pemberton to Belinda and Hollie, outlining the background and process.
On Thursday, 11 August 2022 Belinda Leppien requested that you attend a meeting on Thursday, 18 August 2022. You were offered to bring a support person with you to this meeting. You left work on Thursday, 11 August 2022 before the meeting occurred. You informed Hollie Duce and Graham Pemberton that you would now be seeking external council on the basis that you believe that you have been subjected to bullying and abuse by senior management generally.
At this stage we have not received any details from you on the alleged bullying by the Group HR Manager.
You are directed to complete the ‘Employee Complaint Form’ in relation to the alleged bullying and return it to us within three (3) business days after you return to work from your personal/carer’s leave. We will then arrange for an investigation to be completed.
PERFORMANCE RELATED MATTERS
A formal complaint was provided to us by Lacey Wade on 17th August 2022.
The complaint relates to incidents over the last around 12-month period in which Lacey believes that you have failed to properly complete your duties of employment and/or follow reasonable management direction. You were also accused of workplace bullying by the complainant. A detailed list of matters has been provided to us and an investigation is underway.
A number of the matters have also been discussed with you direct by myself as the Dealer Principal. You are aware that I have been required to intervene previously and direct you to complete the tasks that are properly and reasonably within your competence and duties of employment.
Due to the other ongoing matters raised in this correspondence (particularly concerns about your mental health), we believe that it is best to not proceed further with the investigation at this time. For this reason, this investigation has been placed on hold until further notice.
PERSONAL/CARER’S LEAVE
You provided us with a medical certificate dated 22 July 2022 from Riverway Medical Centre stating that you are unfit for your usual occupation for the period from 22 July 2022 to 25 July 2022 inclusive. You also provided us with a medical certificate dated 11 August 2022 from Riverway Medical Centre stating that you are unfit for your usual occupation for the period from Thursday 11 August 2022 to Saturday 13 August 2022 inclusive.
You attended the staff function on Sunday 14th August.
You have also been on personal leave from 17 August 2022 until today. You provided us with a medical certificate dated 17 August 2022 from Riverway Medical Centre stating that you are receiving medical treatment for the period from 17 August 2022 to 23 August 2022 inclusive. On Tuesday, 23 August 2022, you informed the General Manager that you were taking additional “stress Leave” and will be returning on Sunday, 28 August 2022.
You also sent an further email at 3:23 om on Tuesday, 23 August 2022 to Michael Paradisis, as the General Manager was away, which included the following:-
Hello Michale,
As Michael Blucher is away, I will report to you of my absence (stress leave) as next in line of
organisational structure.
I hope that's ok, I do not want direct contact Graham Or above at this stage.
I will supply a certificate to Kim within the next day.
You have referred to suffering from mental health issues to staff members. We do not hold any details on your mental health diagnosis or treatments.
We have always maintained mental health awareness in our business and take mental health matters seriously, with the health and safety of our employees of the upmost importance, you also have access to the Employee Assistance Program on redacted.
It is imperative that you look after your health as the primary goal. We offer the use of the Employee Assistant Program and Managers Assistant Program. You have the details for both of these programs. You may also speak to any external third-party organisation or person that you may wish to.
If you require a break (mentally, physically, or emotionally), please let us know. We will always support our employees experiencing or recovering from mental health issues.
Lastly, we note from one of your emails to the payroll clerks that you may be under the impression you are suspended, we can assure you this is not the case. At no stage has your employment with us been suspended.
Yours faithfully,
Christopher Carney,
Dealer Principle,
Mike Carney Toyota
Summary of Employer’s submissions and evidence
The Employer submitted the following in relation to the Application.
“For the purposes of the conference, the position of the employer is as follows:
1.The employee’s employment commenced on 7 December 2020 as a Barista. The employee transferred into an assistant position of employment to the General Manager (Michael Blucher) with effect from 27 April 2021. This was due to various reasons, including performance and conduct related matters of the employee. The position of the employee has varied since 27 April 2021 due to workplace demands and operational matters.
2.The position of employment of the employee was determined by senior management of the employer to be rendered redundant on 14 July 2022.
3.The first consultation of the employee occurred on 21 July 2022.
4.During the meeting that occurred on 21 July 2022, the proposed redundancy was discussed. An alternative position of employment in the business was discussed at this time, being the position of Process Mapping Auditor. The position description was handed to the employee. The employee wished to consider the matter further over the weekend, which the Group HR Manager said was perfectly acceptable. It was clear to the employee that there was alternative employment of equal standing in the business available to the employee, which was at the same rate of pay, and with the same flexible work arrangements enjoyed by the employee.
5.The Group HR Manager followed up the employee the following week and the accusations of bullying by the employee against the Group HR Manager arose. These allegations are not of direct relevance to this redundancy pay application and therefore, will now be expanded upon in this email save as to say that the employer took all reasonable steps to cause an investigation into the allegations to be completed and the employee did not cooperate with this process.
6.The correspondence dated 10 August 2022 was issued to the employee to properly address all of the issues at hand.
7.The redundancy took effect from 7 September 2022.
8.The employee was at work for various periods of time during the period from 21 July 2022 to 7 September 2022. The employee also attended a staff function and was correspondence with the employer on various matters.
9.There was suitable alternative employment available to the employee in the business, which the employee did not accept despite all reasonable opportunities for redeployment to occur. This included alternative employee opportunities on the same pay and working conditions, and within the employee’s skill and competence. The employee had all reasonable opportunity to consider alternative employment and elected to leave her employment rather than accept redeployment.
A statement was also provided by Mr Graham Pemberton, Group HR Manager for the Respondent.
Mr Pemberton set out that the decision was made by the Senior Leadership Team on 14 July 2022. After a review of business operations that based on business, operational and structuring reasons, the Respondent’s position was rendered redundant, but alternative opportunities for redeployment within the business were offered and Mr Pemberton was tasked with consulting with the Respondent.
In line with this consultation obligation, a meeting was convened with Ms Gambrill on 21 July 2022. Consultation on the proposed redundancy occurred at that meeting where the Respondent was informed of the decision by the Senior Leadership Team to make her current role redundant and the offers of other opportunities within the business. She stated that these opportunities were considered prior to the meeting, and that they included general positions of employment, such as the front counter and all positions of employment, however some Ms Gambrill was not qualified for. It was communicated to the Respondent that a new role been created to suit the business and her skill set, as she was deemed confident at processes, being an important role of quality control and process mapping. It was explained that this would enhance the business processes and add to the profitability of the company.
The position description for the proposed alternative position of Group Process Mapping Auditor was provided to the Respondent. Mr Pemberton in his statement set out that it was conveyed at the meeting that the position was equivalent to her previous position of Managerial Assistant and would match her skill set, remuneration level and authority, and that there was no loss of working flexibility or working conditions.
Ms Gambrill requested the weekend to consider the offer, and it was agreed by both parties to take the weekend and reconvene on Tuesday the following week to further discuss the matter.
Mr Pemberton set out that unfortunately the following week, having received the news of the redundancy, the Respondent proceeded to raise allegations against various people in the business.
Accordingly, on August 23, 2022, the letter referred to was sent to the Respondent. The letter outlined that the Applicant intended to move forward as planned and that her position will be made redundant on 7 September 2022, and that she was provided with the period until August 29 to take up the offer of redeployment.
Further, the correspondence informed the Respondent that there was suitable alternative employment that could be accepted within the business, and it also informed her that if there was any other employment in the business that she would like to consider, then she should inform the Applicant.
Mr Pemberton stated that the offer of redeployment remained with the Respondent however at no time did she seek to discuss other alternative employment. The Respondent chose not to accept the continued employment with the employer, and on 7 September 2022, Ms Gambrill was issued with a final notice of redundancy.
Summary of the Respondent’s submissions and evidence
The Respondent submitted that she commenced employment with the Employer on 7 December 2020 and had worked there for one year and nine months. She agreed with the Applicant’s assessment that she had commenced as a Barista and been promoted to the Assistant to the General Manager, Mr Michael Blucher.
There is disagreement between the parties about matters relating to the reasons for the redundancy. However, the parties were generally agreed on the criteria in relation to the proposed job.
The Respondent stated she had never been subject to any performance management during her employment. She stated that some of her job duties had gradually been provided to other employees within the business over the last year.
The Respondent stated that on 21 July at short notice, she was instructed to attend a ‘career opportunities meeting’ with Mr Pemberton at which she stated she had no support person offered.
In summary, the Respondent submitted that Mr Pemberton stated to her that he and Michael Blucher considered ‘she is doing a great job in your current role, but Chris Carney no longer wants you in that role or within the business and that once you’re on the outer with him it is a problem’.
The Respondent stated she considered that this context was related to the occasions that she had spoken to Mr Pemberton regarding her concerns of a bullying and harassment by Mr Carney.
The Respondent agreed. She was given a paper copy of the job description of the proposed new role. She said she replied that this was ‘childish and wrong’, and she said Mr Pemberton stated Mr Carney was the Director of the company.
He stated ‘We would like to move you to a new position which we think you will be suited to with the same salary, and he proceeded to explain the role of Process Mapping Coordinator. He started ‘the new role is needed in the business and would be advertised if she did not take it’. The evidence of the Respondent in her statement was that Mr Pemberton indicated that if she did not take the role, she would be managed out of the business.
The Respondent stated she considered this was a demotion due to the Director’s personal dislike of her. The Respondent took stress leave on the 21st and 22nd of July and raised her concerns directly to the General Manager over a brief text message and phone calls. The Applicant stated that she was not able to address her concerns regarding bullying to her direct supervisor.
She stated she had over the course of the prior year on occasions endeavoured to reach out to Mr Pemberton regarding harassing behaviours from the Director and his Assistant. She stated that she was then bullied by Mr Pemberton in relation for raising these concerns, and that these matters became the subject of the General Protections Application made to the Commission.
The Respondent had made the Commission aware shortly before the conference that she had filed a General Protections Application, therefore it was brought to the attention of the Applicant. The Applicant sought to consider this prior to proceeding.
In terms of the material filed by the Respondent, there was some merging of the material relevant to each application. The Employer stated that they became aware of the bullying and harassment allegations after the Respondent was notified of the redundancy. She stated that she had addressed these concerns to management 24 days prior to the redundancy being raised with her.
The Respondent indicated that while she received a letter for redundancy notice on 24 August 2022 that she was going to be made redundant on 7 September 2022, she received such while she was on stress leave, and was unable to respond. The Applicant interpreted the Respondents absence did not prevent her from making the relevant inquiries as she had conducted other conversations and attended other events during the period.
The Respondent confirmed she received the letter of redundancy notice on 24 August that she was going to be made redundant as of 7 September 2022. Further to this, she stated she made contact with the employer through Michael Blucher, expressing she was still not well and that she would send through a Medical Certificate. She stated she may have forgotten to send through the Medical Certificate but supplied one dated 29 August 2022 till 13 September 2022 which she stated prevented her from appropriately replying or making inquiries regarding the role for that week.
Whilst the Respondent argues that she was made redundant without the consultation being discharged the information demonstrates that meetings did occur and that detailed information was provided in relation to the proposed new role and no further inquiries were made.
Consideration
In regard to applications pursuant to section 120, it is necessary to consider matters relevant to whether the employer has obtained other acceptable employment for the applicant.
In considering whether the alternative employment is acceptable, it is necessary to consider the remuneration and conditions of the alternative employment. In the current matter, the job is Group Process Mapping Auditor Coordinator.
The remuneration and conditions of the alternative employment obtained and offered (on the evidence of Mr Pemberton) were on similar terms regarding status, with the rate of remuneration being on exactly the same salary level. In addition, the location of the job was at the same workplace and the hours of employment and flexible work arrangement was the same.
It was agreed that the redundancy pay entitlement in accordance with section 119 of the Act was four weeks at $1442.31 per week. The equivalent gross amount payable was $5769.24.
In terms of the criteria for consideration of other acceptable employment; being status, rate of pay, location, hours of employment, duties and consultation, the Respondent did not object to the rate of pay, and hours of employment being equivalent to the prior position.
It is noted that the Respondent had made inquiries as to whether Mr Blucher could be involved in the consultation process, so she could discuss the situation with him. The consultation process was, however, within the domain of the Group Manager Human Resources Mr Pemberton.
The Employer had provided evidence of the consultation regarding the position and the redundancy, and it was not until after the communication of these that any formalised reference to allegations of bullying were made. The Respondent raised allegations of bullying against Mr Pemberton after the consultation meeting. On the evidence provided, whilst Mr Pemberton held the responsibility for consultation, it was Mr Blucher, her immediate manager (in conjunction with the senior leadership team) that had primarily made the redundancy decision in terms of the operational changes. It was set out that Mr Blucher in making the decision, no longer required anyone to be employed in the Administrative Assistant position, in terms of the manner in which it was intended to undertake this work.
This distinction is important from the perspective that no allegations of bullying were made by the Respondent, against Mr Blucher, he being a decision maker, in relation to the role no longer being required. Consistent with this review, Mr Blucher with the Senior Leadership Team determined that the role was redundant. There was no evidence that the allegations of bullying undermined the genuine nature of the redundancy. Whilst evidence of the Respondents complaints regarding discharge of administrative duties and frustration or grievances with other employees were apparent, this did not derogate from the nature of the decision regarding the redundancy of the Respondent’s role.
The Respondent made allegations of bullying against Mr Pemberton. As a result of such, he wrote to the Applicant, indicating he would step back from the process to ensure there was no effect on the matters to be considered in terms of the investigation into the allegations of bullying or the redundancy consultation process.
The Respondent did not engage in further consultation or inquiries or respond in line with the timeframes that had been clearly set out. The Respondent stated that she took periods of personal leave, but the Applicant noted she was able to otherwise engage and attend the staff Christmas party. The Applicant also indicated that no clear information was provided with the certificates that represented periods of leave, during the consultation.
On the basis of Mr Pemberton’s evidence, he and the Senior Leadership Team had considered the skills and ability of the Respondent, would be commensurate with undertaking the role. It was set out that it was a valued, new position within the company.
Whilst the Applicant considered that the status of the position was not equivalent, as it was not located with the Senior Leadership Team, on that floor, the Employer’s evidence was that it was of equivalent status in terms of the duties and importance to the operations of the company. In terms of other relevant criteria to section 120; the location, remuneration, hours of work and flexibility of the new role were the same.
Accordingly, in line with section 120(1)(b)(1), whilst it is determined the Employer has obtained other suitable employment on the analysis of the criteria, the discussions with the employee and the consultation on whether this role was acceptable to the employee were not completely finalised, as the Respondent proceeded on leave and was not responsive throughout the final period, prior to the redundancy. The Employer had set out the timeframe for the redundancy to be effective, preceding the Respondent taking the intermittent periods of leave.
Disparity exists between the parties; regarding when the discussions were undertaken, the further opportunity for consultation offered by the Employer within the timeframe, and what the Employer considered to be a direct lack of responsiveness by the Employee, to the discussions.
The Employee relied on the period of leave, and the allegations of bullying as reasons impeding her engagement in the further consultation. No further information was provided by the Respondent on the criteria relevant to section 120, that undermined the job being other acceptable employment.
Apart from the availability of further discussions, no objective information was provided by the Respondent in terms of a requirement for further information, except that on the facts and circumstances of the discussions, and the intervening allegations of bullying and the period of leave, it was evident that the Respondent opposed the redundancy.
Whilst the Respondent stated that detailed discussions did not occur, the opportunity to have further consultation was made available to the Respondent. The initial meetings did occur, and the detail of the position description was provided. The Respondent in her submissions, provided a comparative table in terms of her assessment between the former and the proposed role. The Respondent confirmed in that table that the rate of pay, hours of work, fringe benefits, and continuation of service were all the same between the roles.
The Respondent only noted that location, similarity of workload and job security were different. In relation to location and status, she noted that she was not working as part of the Senior Leadership Team, but on a different floor and further she was concerned that her job security may have been at risk given the newly created role, she considered, was lesser than that of her previous.
However, given the Applicant’s demonstrated opposition to the redundancy, it is not certain that her perspective to the new job would have been changed. The detail of the role, offered against the analysis of the criteria as set out, present that it was acceptable employment. The Respondent had been given the opportunity to engage in further discussions. These may have cleared her concerns, regarding the status and longevity of the job.
A further week would have been sufficient to conclude the discussions, particularly as no real deficiencies with the job had been raised at that time by the Respondent, except that she was concerned that given it was a new position, she was somewhat exposed or vulnerable in accepting this. There was no evidence that this was being used as an opportunity to limit the Employee’s ongoing employment with the Employer. The further discussion may have satisfied the Respondent in that regard. The further consultation may have clarified that the redundancy payment was not acceptable.
In assessing whether the Employer has obtained other acceptable employment, it was noted by the Full Bench in Australian Chamber of Manufacturers and Derole Nominees Pty Ltd:[2]
“What constitutes "acceptable alternative employment" is a matter to be determined, as we have said, on an objective basis. Alternative employment accepted by the employee (and its corollary, alternative employment acceptable to the employee) cannot be an appropriate application of the words because that meaning would give an employee an unreasonable and uncontrollable opportunity to reject the new employment in order to receive redundancy pay; the exemption provision would be without practical effect.
Yet, the use of the qualification "acceptable" is a clear indication that it is not any employment which complies but that which meets the relevant standard. In our opinion there are obvious elements of such a standard including the work being of like nature; the location being not unreasonably distant; the pay arrangements complying with award requirements. There will probably be others.”
In Clothing and Allied Trade Union of Australia v Hot Tuna Pty Ltd[3] the Full Bench held:
“...We do not propose to repeat here the thoroughly detailed argument presented by counsel for the union. A considerable part of that case was devoted to questions of onus and to supporting the proposition that the test of acceptability of the alternative employment is an objective one involving a consideration of such matters as pay levels, hours of work, seniority, fringe benefits, workload and speed, job security and other matters. It was argued that the failure of the employer to adduce evidence of such matters caused the company to fail to make out a case for an exemption. We have no doubt that there is an onus on the employer invoking cl 51(c) and that matters of the kind referred to by the union may be relevant in assessing the position in a particular case. We do not believe it to be necessary to make that examination in every case. Where an employee has accepted alternative employment in circumstances as those here, then in the absence of positive evidence going to the unacceptability of that employment, including unacceptable features of it, then the Commission is entitled to hold the employment as an acceptable alternative and relieve the employer of the obligation under cl 51(c) of the award...”
Finally, the Commission in Datacom Systems Vic Pty Ltd v Rasiq Khan; Siddharth Desai stated as follows:
“[8] In NUW v Tontine Fibres [2007] AIRCFB 1016 (Tontine) a Full Bench of the AIRC considered the meaning of the expression “acceptable alternative employment” in a redundancy provision in an enterprise agreement. It was common for enterprise agreements to reflect award provisions and contain redundancy entitlements that could be reduced if the employer obtained acceptable alternative employment (or some variant of that expression). The Full Bench observed:
“[23] It is well established... that the concept of acceptable alternative employment is to be determined objectively. As noted by a Full Bench in Australian Chamber of Manufacturers v Derole Nominees Pty Ltd: “What constitutes “acceptable alternative employment” is a matter to be determined, as we have said, on an objective basis. Alternative employment accepted by the employee (and its corollary, alternative employment acceptable to the employee) cannot be an appropriate application of the words because that meaning would give an employee an unreasonable and uncontrollable opportunity to reject the new employment in order to receive redundancy pay; the exemption provision would be without practical effect. Yet, the use of the qualification “acceptable” is a clear indication that it is not any employment which complies but that which meets the relevant standard. In our opinion there are obvious elements of such a standard including the work being of like nature; the location being not unreasonably distant; the pay arrangements complying with award requirements. There will probably be others.
” [24] The onus of establishing that the alternative employment in question is acceptable rests with the applicant employer. In order to establish whether the alternative employment obtained by the employer is acceptable it is necessary to have regard to such matters as pay levels, hours of work, seniority, fringe benefits, workload and speed, job security and other matters (including the location of the employment and travelling time)…” [9] 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 there are matters of degree involved.”[4]
Conclusion
In considering s120 there was no evidence that the position was of a lower standard. It was a new position integral to the employer’s operations. The inquiry is not whether the employee in question considers the employment acceptable, but rather whether on an objective assessment it is acceptable.
The Applicant consulted with the employee in relation to the proposed job, which on an objective assessment was obtained by the employer and meets the relevant indicia (as detailed) to conclude that it is objectively acceptable.
The conditions of the Respondent’s prior job, in comparison to the new job meet the test of other acceptable employment. However, the Applicant in offering the job did not convey to the Respondent during the conference that if the job was rejected, they would withhold the redundancy payment.
The Respondent during the period argued that the consultation on the job was deficient. The intermittent leave of the Respondent is noted. There was some obfuscation on the part of the Respondent in participating in or requesting any further relevant discussions about the new job (after the two consultation meetings). The detail of the job had been set out to the Respondent in the position description. A further week would have been sufficient to remedy the consultation.
In all of the facts and circumstances of this matter, it is reasonable to exercise the discretionary power in section 120(2), given the Respondent was not made aware that if she did not accept the job, she would not receive any redundancy payment, nor did she consider the discussion was exhausted. It is determined that a variation of the redundancy pay (from 4 weeks) based on this other acceptable employment, but also the consultation process meetings. The offer is therefore reduced from four weeks to one week being applicable.
This decision is made taking into account, all of the matters relevant to the offer, the criteria, and reasons in accordance with section 120(1)(b)(1) and (3) of the Act on all of the matters as set out pertaining to this application.
An Order[5] to that effect will be issued with this Decision.
COMMISSIONER
<PR749252>
[1] [MA000002]
[2] (1990) 140 IR 123 at [128]
[3] (1988) 27 IR 226 at 230 - 231.
[4] [2013] FWC 1327 at [8] – [9].
[5] PR749253
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