Concentrix Services Pty Ltd
[2022] FWC 713
| [2022] FWC 713 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.120–Redundancy pay
Concentrix Services Pty Ltd
(C2022/1074)
| DEPUTY PRESIDENT LAKE | BRISBANE, 30 MARCH 2022 |
Application to vary redundancy pay for other employment or incapacity to pay – whether employer obtained alternative employment – finding that the employer did obtain acceptable alternative employment for the employee – application granted
Background
Concentrix Services Pty Ltd (Concentrix / the Applicant) has applied pursuant to s.120(2) of the Fair Work Act 2009 (the Act) to have the Fair Work Commission (the Commission) reduce the redundancy entitlement of Ms Jemma Athey (Ms Athey / the Respondent) to nil. Ms Athey was employed by the Applicant as Data Handling and Processing Agent at Robina, Queensland.
The Applicant provides outsourced customer experience to a variety of customers across different industries. The Applicant engaged the Respondent to provide support to a banking client. On the 11 January, the client informed the Applicant that they would be terminating the contract. The Applicant commenced a process of redeployment and possible redundancies for the impacted employees.
The terms and conditions of employment of the Respondent were, at all material times, provided by the Contract Call Centre Award 2020 (the Award).
Ms Athey commenced employment with the Applicant on 28 July 2020. Her employment ended on 11 February 2022. It was accepted by the Applicant that under the National Employment Standards and Award, Ms Athey would be entitled 4 weeks of redundancy pay if her redundancy was to be paid in full.
The Application
The application to vary the Respondent’s redundancy pay to nil was on the basis that the Applicant provided her with acceptable alternative employment. Ms Athey on the other hand denies that the Applicant provided her with acceptable alternative employment, and that she secured employment herself.
I held a conference to see if a resolution could be reached between the parties. As the matter did not resolve, each party was given an opportunity to make submissions both in writing and at the hearing.
The matters for determination are whether the Applicant obtained other acceptable work and if so, whether the Commission should exercise discretion to vary the redundancy. If a variation is appropriate, I must determine to what extent the redundancy should be varied.
Relevant Legislation
Section 119(1)(a) of the Act relevantly provides that an employee is entitled to a redundancy payment by the employer if the employee’s employment is terminated 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. The section goes on to provide for the amount payable to an employee who is made redundant, which is dependent on their length of continuous service.
Section 120 confers on the Commission a discretion to reduce the amount of redundancy pay to which an employee would otherwise have been entitled under s.119 of the Act.
Section 120(1) states that the section applies if an employee is entitled to be paid an amount of redundancy pay under s.119, and the employer “obtains other acceptable employment” for the employee. These are the jurisdictional facts that must be established before the Commission may exercise its discretion. Section 120(2) then states that the Commission “may determine that the amount of redundancy pay is reduced to a specified amount (which may be nil) that the FWC considers appropriate”. If the Commission makes an order under s.120(2), the amount of redundancy pay to which the employee is entitled is the reduced amount specified in the determination (see s.120(3)).
Submissions and evidence
I held a hearing of the matter on 21 March 2022. At the hearing, the Applicant was represented by Ms Judith Fletcher, from their People Solutions function, and Ms Athey appeared on her own behalf as the Respondent.
The Applicant provided witness statements from two employees: Ms Anne Maree Collins, People Solution Business Partner; and Ms Teresa Goldsmith, Associate Director. Ms Judith Fletcher, Manager People Solutions, did not provide a witness statement but provided sworn evidence at hearing.
Ms Athey provided evidence on her own behalf in the form of a witness statement and sworn evidence at the hearing. Ms Athey also provided witness statements from two former colleagues, Ms Samantha Hooper and Ms Deborah Cullen. Neither Ms Hooper nor Ms Cullen gave evidence at the hearing on the basis that their statements were not contested, and they were not required for cross-examination.
Concentrix’s case
The Applicant submitted that Ms Athey was employed by the Applicant from 28 July 2020 to 11 February 2022 as a Data Handling and Processing Agent. Ms Athey was paid $25.63 per hour, providing services for a banking client.
The Applicant submitted that with the announcement by the banking client that work would cease, Concentrix looked at all available options for redeployment both within Concentrix and externally with clients of Concentrix.
The Applicant submitted that two possible opportunities were identified both with another client of the Applicant, Origin Energy (Origin):
· Employees remain with Concentrix for 6 months earning the same pay rate but performing work for Origin either by working from home or at an Origin site. At the end of the 6 months, there would be the opportunity for full-time work with Origin or redeployment within Concentrix; or
· Roles would be available directly with Origin where Concentrix employees would be given an advantage in the recruitment process. Concentrix employees would be given a unique link to apply so Origin would know that the candidate was from Concentrix, and this would ensure they were scheduled for an interview.
On 28 January 2022, Origin completed an information session with affected staff at the Concentrix Robina site to outline the roles, answer any questions and provide information on how to apply. 45 employees expressed an interest in working for Origin.
The advice from the Concentrix leadership team to staff was that where Concentrix had identified the roles available with Origin and facilitated the process to apply and participate in the selection process, Concentrix would apply to waiver the redundancy payment. This was discussed directly with the employees.
The Applicant submitted that Ms Athey expressed a preference to stay with Concentrix delivering Origin services. However, Origin made the decision not to continue with this service delivery model, and all roles would be direct with Origin at the Origin rate of pay. The Origin rate of pay was a higher amount than the Applicant had been offering, being $66,000 per year plus superannuation.
An interview was scheduled on 2 February 2022 between Ms Athey and Origin. Concentrix facilitated the interview and Ms Athey was notified of her interview time. The interviews took approximately 15-20 minutes.
Ms Athey was successful at the interview and when the first option of an ongoing role with Concentrix was unavailable, she was provided with a new link to apply for the direct role with Origin (option 2). Ms Athey used the link to submit her application to Origin by 7 February 2022. Ms Athey received an offer of employment from Origin on 9 February 2022.
The Applicant submitted that employees were advised that Origin had arranged an initial intake for orientation and training group for 14 February 2022 so continuity of wages could be provided. However, if employees wanted to start in a later training group on 28 February 2022 they could, but they would not be paid by Concentrix for the period 14 February 2022 to 25 February 2022. Ms Athey was offered a role with Origin commencing on 14 February 2022 but made the personal decision to defer her commencement with Origin until 28 February 2022.
Ms Athey’s case
Ms Athey refuted that Concentrix secured Ms Athey’s position with Origin and submitted that Concentrix secured the interview, however she secured the role on her own merit.
Ms Athey conceded that on 15 December 2021, she was advised that the banking client would cease work with Concentrix and as a result, she was being made redundant. During a meeting with leadership, they were advised that they would continue to look for alternative roles within Concentrix. However, they would be required to re-interview for these positions. Ms Athey advised that they (the Applicant) stated it was highly likely however this would not eventuate, and they would be redundant.
On 28 January 2022, Ms Athey said she received her redundancy letters confirming she was being redundant with an effective date of 11 February and advised that her mandated two weeks’ notice has commenced. She started working from home on 17 January 2022 due to health reasons and therefore, from this date forward she had to rely on the leadership team to contact her to inform her of any changes to the situation. She stated there were multiple occasions on which she was informed of updates to the status of her redundancy after hours, whereas her colleague would have informed her no less than 5 hours earlier. Ms Athey claimed that this caused her to receive wrong information or information of a sensitive nature through word of mouth and this caused her much anxiety and stress. For example, At 11:00am on 4 February 2022, Ms Athey was informed that the redundancy was being waived for all employees by a colleague, and this was before it was changed to only Origin applicants, while the leadership at the office had left for a two hour lunch at the local pub. It was not until 4:30pm that Ms Athey received a call from leadership to inform her of this news.
On 31 January 2022, Ms Athey said that she was advised there was a 6-month working from home Concentrix contact with Origin and Concentrix would be organising interview times with them. These were scheduled to happen on 1 and 2 February 2022, and they were advised of their scheduled slot one day prior. Ms Athey said that they were informed by leadership that Origin required quite a number of new staff so they could all assume that they would be hired. Ms Athey advised that she was also informed by leadership that when they were successful, they would not receive the redundancy payment as Concentrix had applied to the Commission and received confirmation that their redundancy payment would be waived in full. Prior to the attempted mediation when Concentrix stated it was only their intention to apply for a waiver, Ms Athey stated that had she been told by leadership on more than one occasion that they had already applied and received approval for the waiver. Multiple employees requested a copy of the Commission approval to no avail. Ms Athey noted that the application was submitted on 11 February 2022.
Ms Athey further noted that Concentrix advised that wages would be paid for the period between their contract ending and the Origin contracting commencing. Since then, Ms Athey had been told that “Concentrix said we could have started on the 14th and chose not to so are no longer eligible to receive that pay”. This was advised to Ms Athey on 15 February. Ms Athey submitted that she was further advised by the Applicant that her start date is 14 February, however, when Origin offered her the job, they asked which intake she preferred, and Ms Athey chose 28 February with no knowledge that this would affect her payment.
Ms Athey said in relation to the interview that it took approximately 30 minutes, which occurred after hours on her personal laptop using her personal email address. She said she was not on paid time during the interview. Ms Athey said she was asked to provide examples of jobs she had in the past, past experience, skills, what equipment she could use, what jobs she had worked and her career goals. Ms Athey described the interview as like prior interviews she had participated in. Ms Athey said she believed she had earned the job on her own merits. She asserted that this was a competitive interview process in which she was competing against internal Concentrix employees and not all of the interviewees were offered a role after the interview process.
Ms Athey advised that her former role with Concentrix, and her new position at Origin, differed in location, nature of work and work hours:
· Location: Concentrix office was located at Robina which is 34 kilometres south from her home. The Origin office, on the other hand, is located in Brisbane CBD which is 56 kilometres from her home. Ms Athey noted that office does not have free parking so the cost of public transport or paid parking would need to be taken into consideration.
· Nature of work: Ms Athey was engaged by Concentrix as a Data Processing and Handling Agent, which consisted of no customer contact and was primarily solo work remediating old client records. The new role with Origin, however, is solely customer focused and involves 100% customer contact throughout the day.
· Work hours: Concentrix work hours were between 7:00am to 5:00pm (became 7:00am to 3:00pm in the last 6 months), whereas Origin work hours is between 8:00am to 6:00pm according to their offer. However, Ms Athey said she was told by Concentrix before her interview that the hours were 7:00am to 5:30pm.
At the hearing, Ms Athey was asked how travel costs for her new role compared to travel costs in her role at Concentrix. Ms Athey said that her new role required that she would work in the office two to three days a week and would have to pay approximately $20 per day in parking when she worked in the office. Ms Athey said she did not know how much that would cost in fuel, but that it was an increase on her travel costs at Concentrix where she mostly worked from home or had free parking. Ms Athey also said the distance to travel to the Origin job was approximately double. Ms Athey was asked whether this “eroded” the $15,000 increase in renumeration in the Origin job and she said that it did not but said that it was still something to keep in mind as there were additional costs in the new role.
Ms Athey further advised that she had issues with the communications from Concentrix throughout the last 2 weeks of her employment. When they initially told staff that the redundancy was happening on 4 February and gave them their 2 weeks’ notice. The staff in the office were told by 12:00pm. Ms Athey advised that she was working from home at the time and did not receive a phone call from leadership until 4:24pm this meant she had 4.5 hours of distress as she was only hearing gossip and rumours from other staff members and had no real information. She was also advised that she would receive information on 7 February regarding a like for like job they were finding them. It was not until 7:57pm that she received a call from leadership to tell Ms Athey that they were unable to find one.
It was clear from Ms Athey’s material and evidence at hearing that she was not impressed with the process followed by Concentrix, as she felt she was rushed into making a decision under pressure about whether or not to take the position with Origin. Ms Athey was critical of the communication from the Applicant regarding the redundancy.
Ms Athey was of the view that she is entitled to her full redundancy payout of four weeks which totals to $3,895.76 as well as the 10 business days of continuity of wages paid by Concentrix up to the commencement of employment with Origin, being $1,947.88.
Consideration
In determining an application made pursuant to s.120 of the Act, the Commission must first be satisfied that there is an entitlement to redundancy pay.[1] Where there is no entitlement to redundancy pay under s.119 of the Act, there can be no order to reduce the entitlement.[2]
It was not in dispute that the Respondent was entitled to be paid 4 weeks’ redundancy pay on her period of employment, as her job had been made redundant. I am satisfied that the Respondent has an entitlement to redundancy pay pursuant to s.119 of the Act.
The matter turns on whether the Applicant had obtained other acceptable employment for the Respondent.
In determining this application, I must consider the following questions: did the Applicant obtain the employment with Origin; and was that employment other acceptable employment?
If I am satisfied that the answer to these questions is yes, I must consider whether to vary the entitlement to redundancy and, if so, by how much.
The meaning of “obtains”
In FBIS International Protective Services (Aust) Pty Ltd v Maritime Union of Australia (the FBIS),[3] the Full Court of the Federal Court considered what is required by the term “obtains”, within the meaning of s.120(b)(i). It was held:
“20. With respect to the Full Bench’s reliance on the Shorter Oxford, the present might be one of those rare occasions on which it is useful to refer to the corresponding full entry in the Oxford English Dictionary itself. Relevantly, that reads:
To come into the possession or enjoyment of (something) by one’s own effort, or by request; to procure or gain, as the result of purpose and effort; hence, generally, to acquire, get.
We would not regard the references to “effort”, and to “purpose and effort” in this meaning as implying the existence of some kind, much less a strong kind, of “moving force” in bringing about the new state of possession referred to. They imply, rather, that the possession must be the result of the conscious, intended, acts of the person concerned, as distinct from, for example, coming into possession of something by gift or inheritance. Moreover, we cannot perceive any reason why what is described as the “general” connotation of the word – “to acquire, get” – should not be regarded as a perfect fit for the purposes sought to be achieved by the relevant provision in the standard award clause before this provision became the subject of legislation.”
In Australian Commercial Catering Pty Ltd v Marcelia Powell and Maria Togia,[4] the Full Bench of the Commission, in relying on FBIS, stated, “…[t]he employer “obtains” other acceptable employment when it acquires or gets the employment by its conscious, intended acts.”[5]
In relation to the Employer securing ‘other acceptable employment’ at the relevant time, DP Colman stated in Electricity Wizard Pty Ltd v Pasilika v Tauiliili:[6]
“In my view, for an employer to avail itself of s.120, the other acceptable employment must be ‘obtained’ and offered to the employee while she or he is still employed by that employer. The section speaks of an employer obtaining other acceptable employment for the employee. This cannot occur once the relevant employment relationship has come to an end. In the present case, the other employment was not obtained until after Mr Tauiliili’s employment with Electricity Wizard ended.”
The meaning of “other acceptable employment”
I must also consider whether the offer by the Applicant was on terms and conditions no less favourable than the terms and conditions that the Applicant experienced prior to the restructure.
The proposed roles do not have to be identical and in considering this the Commission must determine the matter objectively weighing up aspects of the role that include duties, conditions, pay level and location to mention some of them.
Relevant to this point in Derole Nominees,[7] the Full Bench of the Australian Industrial Relations Commission (AIRC) found:
“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.”
A further explanation on this point was put forward by in Von Bibra Robina Autovillage Pty Ltd by Richards SDP, who adopted the principles in Derole Nominees and said:
“In contrast, the objective test of acceptability appears to be that the alternative work bears a sufficient comparability to the original work and is not unreasonably removed from the employee’s original duties, skills set, qualifications, experience and other terms and conditions of employment. The test is not whether or not the employee is capable of carrying out the new employment as such, it is whether there is sufficient correlation between the relevant indicia of the current work and the alternative employment as proposed.”[8]
Conclusion
The course of redundancy seldom runs smoothly. In this matter the Applicant was a moving force in identifying alternative positions for not only the Respondent but a number of other similarly affected staff. The Applicant’s evidence was that they looked for opportunities not only within the organisation but also within its clients’ organisations. Origin was one such client, and through a process of consultation with Origin, a process for recruitment of those displaced employees was agreed. Interview times were scheduled within working hours for the employees seeking another role, the Respondent had been working from home and her interview and the communications process was belated on her evidence. In spite of these issues, she did attend an interview with Origin and was offered a role with a higher pay rate. This would not have come about without the efforts of the Applicant. The opportunity was a direct result of the Respondent’s efforts to identify all opportunities. The Respondent ultimately did ‘obtain’ an alternative employment opportunity.
The Respondent states that it was a competitive recruitment process and that it was through her hard work, relevant work experience and good interviewing skills that she secured the role. The Applicant states that all the displaced employees who wanted to work with Origin were offered roles and there were a number that withdrew from the process and so maintain that it was not comparable to a fully competitive recruitment process. In any event the role that the Respondent was offered did have several differences to her previous role in the Applicant’s. This included customer contact skills and a requirement to travel a number of times a week to Brisbane with a cost for parking. I find that the role in which the Respondent was employed by Origin was an acceptable alternative work.
It is important to note for contextual purposes that several of her colleagues who were similarly displaced had indicated to the Respondent that they would not be taking up the offer from Origin and as a result were paid the redundancy. The same former colleagues then accepted a role with Origin a few days after the effective termination date with the Respondent and were accepted. They essentially took advantage of the alternative role however through poor planning and administration on the part of the Applicant and Origin, there was a gap in the process and a number of her former colleagues have been able to receive the full redundancy payment and secure a role with Origin. I can understand the Respondent’s frustration that a number of her colleagues received a benefit and she did not. However, I also note that the Applicant is exploring avenues to redress this situation outside these proceedings. The Respondent has also made a claim for two weeks pay for the period between her termination date with the Applicant and her commencement with the new employer. This is not a matter that I can determine in this application which specifically concerns the redundancy payment. If the respondent believes she has a valid claim, then she will need to initiate proceedings in the appropriate jurisdiction.
Accordingly, I consider that I should exercise my discretion to reduce the Respondent’s redundancy pay. Whilst I recognise that her new role with Origin had a number of differences to her original role, including that her salary was higher, when considered overall I find that the role that the Applicant obtained was for acceptable alternative work. Therefore, I order that the Respondent’s redundancy pay be reduced to nil.
DEPUTY PRESIDENT
[1] Application by CAE Australia Pty Ltd [2012] FWA 7992 at [13].
[2] Ibid.
[3] [2015] FCAFC 90.
[4] [2016] FWCFB 5467.
[5] Ibid at [37].
[6] [2018] FWC 4556 at [24].
[7] (1990) 140 IR 123.
[8] Von Bibra Robina Autovillage Pty Ltd [2007] AIRC 397.
Printed by authority of the Commonwealth Government Printer
<PR739866>
0
5
0