CGL Retail Services v Carmen Chapman - [2023] FWC 1651

[2023] FWC 1651

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.120—Redundancy pay

CGL – Retail Services
v

Carmen Chapman

(C2023/3308)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 7 JULY 2023

Variation of redundancy pay – business development manager – redundancy – alternate job offer – whether ‘other acceptable employment’ – position offered materially different in substance – application dismissed – redundancy entitlement unaltered

On 9 June 2023 CGL Retail Services Pty Ltd (CGL Retail Services, the applicant or the employer) applied to the Commission under s 120 of the Fair Work Act 2009 (FW Act) to vary the amount of redundancy pay payable to a former employee, Carmen Chapman (Ms Chapman, the respondent or the employee).

Ms Chapman was made redundant and her redundancy pay entitlement under the FW Act is twelve (12) weeks.

CGL Retail Services seeks to vary the amount of redundancy pay to nil on the ground that it obtained “other acceptable employment” which was not accepted.

Ms Chapman opposes the application.

Following a conference of the parties, directions were issued on 21 June 2023. Materials were filed by CGL Retail Services and Ms Chapman.

I heard the matter by video on 5 July 2023. Both parties were self-represented.

Ms Natassja Sanjay (Human Resources Director, CGL Retail Services) and Ms Chapman gave evidence. The evidence of each was reliable within their sphere of knowledge and recall. The facts are largely not in dispute.

Facts

CGL Retail Services

CGL Retail Services is part of the Clemenger Group. It provides field marketing services to clients on a project basis.

General Mills Australia Pty Ltd is a manufacturer and distributer of food products.

CGL Retail Services entered into a commercial agreement with General Mills to provide field marketing services for the preparation of on-shelf and aisle displays in retail stores of products manufactured and distributed by General Mills. This included the sale and display of those products in independent supermarkets in South Australia.

The agreement between CGL Retail Services and General Mills was time limited. It (or a relevant part of it dealing with independent supermarkets) concluded on 30 June 2023. It concluded because the services were put to tender and CGL Retail Services did not win the tender. It went to a competitor.

As a consequence of losing the tender, the employment of certain persons employed by CGL Retail Services came to an end by redundancy. Ms Chapman was one of those persons.

Ms Chapman’s employment

Ms Chapman is a resident of Adelaide.

Ms Chapman commenced employment in 2013 as a casual merchandiser. Over the decade that followed she became a part time sales executive and then a part time Business Development Manager. As a part time Business Development Manager Ms Chapman initially was employed (part time) to place the retail products of a client manufacturer (Proctor and Gamble) in retail stores (Woolworths and Coles). Subsequently, Ms Chapman was employed (part time) to place retail products of a different client manufacturer (General Mills) in other retail stores (independent supermarkets).

In August…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading CGL Retail Services v Carmen Chapman

Details

AGLC: CGL Retail Services v Carmen Chapman [2023] FWC 1651
Case: [2023] FWC 1651
Decision Date: 7 JULY 2023

CaseChat Overview and Summary

CGL Retail Services applied to the Fair Work Commission under s 120 of the Fair Work Act 2009 to reduce the amount of redundancy pay payable to Carmen Chapman, a former employee. Ms Chapman was made redundant when CGL Retail Services lost a contract with General Mills. CGL Retail Services offered Ms Chapman a new position within the company, the Coles Relay Tactical Lead, but she declined the offer. CGL Retail Services submitted that the offer was “other acceptable employment” and therefore the redundancy pay entitlement should be reduced to nil. Ms Chapman opposed the application. The key issue before the Deputy President was whether the offered position was “other acceptable employment” as defined by the Fair Work Act. The Deputy President considered the objective test of acceptability and found that the offered position was not “other acceptable employment” because it had materially different duties, required lesser discretion, skill, and responsibility than Ms Chapman’s previous role. The Deputy President found that the offered position lacked a sales function and had significantly less negotiating authority over merchandising, which were material differences that affected the skills and responsibility attached to each role. The Deputy President concluded that the offered position was not a sufficient comparability to Ms Chapman’s previous work and dismissed the application. The entitlement to twelve weeks of redundancy pay remains unaltered.

Orders