Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane Centacare Administration Services T/A Catholic Early EdCare v Aylce Rogers

[2020] FWC 3388

[2020] FWC 3388

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.120—Redundancy pay

Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane - Centacare Administration Services T/A Catholic Early EdCare
v
Aylce Rogers
(C2020/249)

COMMISSIONER BOOTH BRISBANE, 29 JUNE 2020

Variation of redundancy pay.

[1] The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane - Centacare Administration Services T/A Catholic Early EdCare (the Applicant) has made an application to the Fair Work Commission (the Commission) for a variation to the redundancy pay to be paid to Ms Alyce Rogers.

[2] The application is made under to s.120(b)(i) of the Fair Work Act 2009 (the Act) on the basis that the Applicant asserts that it obtained other acceptable employment for Ms Rogers by offering an alternative position within the Applicant’s business, and that this offered was refused by Ms Rogers. Ms Rogers asserts that due to her caring responsibilities the offer from the Applicant of an alternative position is not acceptable employment.

Background

[3] Ms Rogers was employed by the Applicant from 11 December 2007 until around February 2020. 1 It is not disputed that Ms Rogers’ job is no longer required to be done as provided in s.119(1) of the Act. Under the terms of the Children’s Services Award 2010, which applied to Ms Rogers’ employment, she would otherwise be entitled to 12 weeks’ redundancy pay. The Applicant seeks that Ms Rogers’ redundancy pay be varied to nil because it obtained other acceptable employment for her.

[4] Directions were issued requiring that the parties file submissions, witness statement and documents in support of, and in response to, the application. The relevant provision of the Act, s.120, was outlined in the directions. Ms Rogers did not comply with the Directions, failing to file submissions in relation to why the redundancy payment should not be reduced to nil.

[5] My Associate sent correspondence to Ms Rogers on 7 May 2020, requesting that she provide reasons for the delay and an indication of when her material will be filed in accordance with the Directions.

[6] On 8 June 2020 at the commencement of the Hearing, my Associate attempted to contact Ms Rogers on multiple occasions but was unable to contact her on the contact number she had provided. Mr Condon, Manager – People and Culture, attended the Hearing on behalf of the Applicant. Mr Condon made no further submissions and relied on the written submissions of the Applicant filed in the Commission in accordance with the Directions issued.

[7] Following the Hearing and on 8 June 2020, Ms Rogers contacted Chambers providing reasons as to her failure to attend the Hearing. Ms Rogers was provided access to the transcript of the hearing and provided with a further opportunity to make submissions in response to the matters raised at the hearing by 19 June 2020. As of the date of this decision, no further material was filed by Ms Rogers.

[8] I have therefore taken into consideration Ms Rogers material that had been filed and the information she provided to her employer prior to her position becoming redundant.

[9] I note that even if Ms Rogers had not filed any material, the onus is on the Applicant to establish that there should be a variation to the redundancy pay.

[10] For the reasons outlined below, I find that while the alternative offer was suitable and I have therefore have reduced the redundancy pay accordingly, I do not consider the offer from the applicant warrants full relief from payment of redundancy pay.

[11] The application is made under to s.120 of the Fair Work Act 2009 (the Act) which provides the following:

“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, FWA may determine that the amount of redundancy pay is reduced to a specified amount (which may be nil) that FWA 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.”

[12] A decision about whether the reduce the amount of redundancy, and the amount of any reduction, is a broad discretion. 2

[13] The Applicant seeks variation of the redundancy to nil on the basis that Ms Rogers was offered other acceptable employment once it had been determined the work she was doing was no longer required, and she did not accept that offer.

[14] Ms Rodgers had requested a variation of the proposed work hours to accommodate family responsibilities on her return to work from parental leave. This raises the question of whether the other employment was acceptable, or whether any the discretion to reduce redundancy pay should be exercised and if so, the extent of reduction taking into account Ms Rogers’ family responsibilities and its impact on her working hours.

Submissions and evidence

[15] As noted, Ms Rogers commenced employment with the Applicant on 11 December 2007 in the position of Children’s Services Employee at St Ambrose Outside School Hours Care, Newmarket (Newmarket OSHC). On 19 June 2017, Mr Rogers was appointed to the position of Assistant Coordinator at Newmarket OSHC. On 17 December 2018, Ms Rogers commenced parental leave with an expected return to work date of 17 December 2019. At the time the application was filed with the Commission on 14 January 2020, Ms Rogers was still on parental leave.

[16] The Applicant submitted that it was determined, through its 2019/2020 Budget Setting process (the Budget Process), that the financial position of Newmarket OSHC was declining due to falling attendance of children. Accordingly, the position of Assistant Coordinator was no longer viable at Newmarket OSHC.

[17] The Applicant submitted that during a vacation care planning meeting Ms Rogers attended on 23 October 2019, Ms Rogers’ had been informed by Mr Dolinski, the Newmarket OSHC Coordinator, that he did not believe the position of Assistant Coordinator was needed at Newmarket OSHC. The Applicant conceded that Mr Dolinski had no authority to inform Ms Rogers of her position being no longer required without approval from his Area Manager and/or Operation Manager.

[18] In a subsequent phone call on 31 October 2019, Ms Paige Donovan, Coordinator – People and Culture, verbally confirmed to Ms Rogers that the Budget Process had determined the Assistant Coordinator position was no longer required at Newmarket OSHC. Following this phone discussion, the Applicant submitted that it commenced a consultation process with Ms Rogers. As part of that consultation process, an in-person meeting was scheduled on 11 November 2019, however, was later changed to a telephone meeting as the request of Ms Rogers.

[19] During this discussion, the Applicant submitted that Ms Rogers may seek flexible working arrangements on her return from parental leave.

[20] Following the telephone meeting, Mr Condon, Manager – People and Culture, wrote to Ms Rogers via email on 13 November 2019. This email included the following:

“A review of service staffing at St Ambrose OSHC Newmarket has found reduced enrolments and attendance means the position of Assistant Coordinator is unsustainable there and we will be unable to facilitate your return to work at that service. In these circumstances we are obligated to find you a suitable role elsewhere within Catholic Early EdCare, considerate of:

•  Your current position

•  Your current employment status and hours per week

•  The location of the job in relation to your place of residence.

A search of opportunities has identified the following which we believe are reasonable alternatives:

1) Assistant Coordinator at Wavell Heights OSHC – transfer to a permanent Assistant Coordinator position for 35 hours per week (consistent with your substantive role’s total weekly hours)

2) Assistant Coordinator at Enoggera OSHC – transfer to a permanent Assistant Coordinator position for 35 hours per week

3) Assistant Coordinator at Mango Hill OSHC – transfer to a permanent Assistant Coordinator position for 30 hours per week.”

[21] The Applicant submitted that the three positions presented to Ms Rogers were equivalent to her position at Newmarket OSHC with regard to position title, level of responsibility, permanent employment status and pay rate. Two of the three positions were equivalent to her position at Newmarket OSHC with regards to the number of hours per week and all three positions were closer to her place of residence. The Applicant submitted that all the position would retain Ms Rogers’ continuity of service with the Employer.

[22] The Applicant tendered an email from Ms Rogers dated 15 November 2019. In this email, Ms Rogers confirmed her understanding that redeployment was being offered and proposed a pattern of hours for her to work at Wavell Heights OSHC as Assistant Coordinator. The patterns of hours proposed by Ms Rogers included commencing work at 7:30 am each day and finishing work at 5:00 pm each day, while also retaining her total weekly hours of 35 hours per week.

[23] On 29 November 2019, Mr Condon emailed Ms Rogers indicated that her requested flexibility could be met on two of the requested 7:30 am starts on the basis that child attendance at Wavell Heights OSHC were higher on three mornings. The Applicant submitted that this required Ms Rogers to commence work at 7:00 am, as opposed to her requested 7:30 am start, to ensure the legislated required ratios of staff to children were met. The Applicant further submitted that Ms Rogers’ proposal also meant that she was working approximately 20 hours per week when children were not in attendance at the service.

[24] The Applicant tendered another email from Ms Rogers dated 2 December 2019. In this email, Ms Rogers stated that the hours the Applicant had outlined are not going to be possible due to her caring responsibilities and childcare arrangements. Ms Rogers stated in her email the following:

“If Catholic Early EdCare is unable to provide an option that doesn’t adversely affect me, and my substantive position is no longer required, on the advice I have sought from Fair Work this is a genuine redundancy”.

[25] Mr Condon responded to Ms Rogers email on 4 December 2019. It is necessary to set this email out in full:

“Dear Aylce,

There are two matters that need to be separated here as each gives rise to different obligations for the employer and rights for the employee.

The first matter is in finding you an alternate role in circumstances where we have advised the Assistant Coordinator position at Newmarket is no longer sustainable.

The second matter is around your request for a flexible working arrangement on return from maternity leave.

In the first instance where we have advised your substantive position is no longer required, our first obligation is to find you a suitable role elsewhere which we have done at Wavell Heights OSHC as Assistant Coordinator for 35 hours per week. The hours of work do not need to be the exact same weekly shifts that you worked previously in order for it to be a suitable alternative role. Under the terms of the Children’s Services Award 2010 a part time employee’s regular rostered hour can be changed with a weeks’ notice.

Even if we did match the work pattern you had at Newmarket OSHC your indication to us is that you would not be able to return to the same rostered shifts that you had before, which appear to be an average of 3 morning shifts commencing at 6:45am and 4 closing shifts finishing at 6pm.

This is where your request for a flexible working arrangement begins.

You have requested to start work at 7:30am each day and finish at 5pm each day where an Assistant Coordinator would normally be required to work a number of opening and closing shifts as the 2IC of the service. We are offering you a reasonable degree of flexibility by agreeing to the majority of shifts proposed and not requiring these opening and closing shifts to be worked.

An employer can refuse all or part of a flexible work request on reasonable business grounds under the Fair Work Act. We believe that such grounds exist when a 7:30am start on Tuesdays, Wednesdays and Thursdays would be impractical and costly for the service to accommodate based on the enrolments and attendance times of children.

That matter is separate to and does not change the suitability of the alternate role as we are still happy to make 35 hours available and with shift times that are within the span of hours you worked previously.

If you were able to extend your availability in the afternoons to 5:30pm then additional hours could be assigned to you and increase the weekly hours to 25.5 per week.

Please consider this information and verify it further with Fair Work if you wish.

Kind regards.”

[26] The Applicant submitted that following this email, Ms Rogers corresponded directly with Ms Diane Lally, Director – People and Culture, an 18 December 2019 and 30 December 2019. In email correspondence tendered by the Applicant, the Applicant maintained its position as provided in Mr Condon’s email.

[27] On 13 January 2020, Ms Rogers sent an email to the Applicant stating that upon advice she had received from the Commission, the Applicant was required to lodge an application to reduce the amount of redundancy payable to her. Accordingly, the Applicant lodged its application for a variation to the redundancy pay to be paid to Ms Alyce Rogers on 14 January 2020.

Consideration

[28] The principles relating to the variation of redundancy pay for reason of an employer finding acceptable alternative employment are now well established. In Datacom Systems Vic Pty Ltd v Rasiq Khan; Siddharth Desai 3, Vice President Lawler summarised the principles 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. (emphasis added)

[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.

…

To the extent that alternative employment is “obtained” by the outgoing employer, matters referred to Tontine (obvious including elements such as the work being of like nature; the location being not unreasonably distant; the pay arrangements complying with award requirements) are relevant in assessing whether that employment is “acceptable” which is in turn relevant in assessing what, if any, reduction is appropriate. [Note that in Tontine, the alternative employment was with the same employer and there was no loss of continuity or non-transferrable credits. Nevertheless, the alternative employment, while assessed as “acceptable” still had material disadvantages that rendered it appropriate to award a portion of the entitlement. 4

[29] As previously noted, it is not in dispute that Ms Rogers’ role at Newmarket OSHC was made redundant. Accordingly, I am satisfied that Ms Rogers has an entitlement to redundancy pay under s.119 of the Act, subject to any order that the Commission may make in this application. Relevantly, what now must be considered is whether the Applicant obtained other acceptable employment for Ms Rogers.

[30] I accept that although Ms Rogers accepted the position at Wavell Heights OHSC and proposed alternative start and finish times, this did not suit the operational requirements of the business and that it required the Assistant Coordinator to commence work at 7:00 am on three days of the week. I note the position of Assistant Coordinator at Newmarket OSHC also required Ms Rogers to commence work at 7:00 am.

[31] Accordingly, I am satisfied on the materials before me that the alternative position offered to Ms Rogers was of a similar nature to that of her position at Newmarket OSHC. Further, I am satisfied that the terms and conditions of the role offered are the same as her previous role, her length of service and entitlements would transfer to the new position and she would not have been disadvantaged in regard to travel, with Wavell Heights OSHC being located closer to her place of residence compared to the Newmarket OSHC.

[32] I have also considered that the Applicant had offered Ms Rogers positions at two other OSHC, that were also of a similar nature to that of her position at Newmarket OSHC.

[33] As a result, I am not persuaded that a conclusion can be reached that the positions offered to Ms Rogers were not “other acceptable employment”.

[34] But that is not the end of the matter. This is because the alternative employment, while it is employment that is “acceptable” still has significant and material disadvantages for Ms Rogers. The question then is: do these disadvantages (in this case, the family responsibilities) mean the applicant cannot accept the alternative offer and therefore make it appropriate to award a portion of the entitlement?

[35] It appears, based on the material before me, Ms Rogers sought a redundancy on the basis that the Applicant was unable to accommodate her request to return to work on hours that would accommodate her parental responsibilities following her parental leave.

[36] The onus of establishing that the alternative employment in question is acceptable rests with the applicant employer 5 and it is a serious step for the Commission to make an order to limit or remove an employee’s statutory entitlement to redundancy payments.6 In order to establish whether the alternative employment obtained by the employer is acceptable, it is necessary to have regard to all relevant matters including factors such 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.7 What is acceptable is a matter of degree.8

[37] The Full Bench in Tontine also considered the impact of other employment arrangements on family responsibilities in the context of travelling hours. 9 Here, the context is a change in Ms Rogers’ family responsibilities and her request for adjustment of working hours to accommodate those. Ms Rogers raised, as is her right, a request for flexibility in her starting and finishing hours to attend to family responsibilities.

[38] It is true, as the Applicant submits, that the two matters Ms Rogers was seeking to address are separate in the sense that the entitlement to redundancy pay and the right to request flexible arrangements arise under separate provisions. That does not mean there is no relationship between the two matters: each is relevant in the context of a decision for s. 120.

Conclusion

[39] Objectively the alternative employment was suitable. This alternative employment apart from the starting and finishing hours requested for flexibility purposes, was consistent with the employee’s previous working conditions. It follows that the discretion in s. 120 of the Act arises. That is, the Commission may exercise its discretion to reduce the redundancy pay.

[40] However as in Tontine, the alternative employment, while assessed as reasonable still has some material disadvantages that renders it appropriate to award a portion of the entitlement. But in this case, the material disadvantage is more limited than Tontine, and therefore the portion payable is commensurate with the disadvantage.

[41] It is appropriate for me to exercise my discretion to significantly vary the extent of redundancy payments otherwise payable. In the circumstances the redundancy payment should be reduced to 25% of the entitlement. As the entitlement is for 12 weeks, then the payment due is 3 weeks redundancy payment.

[42] An Order consistent with the foregoing will be issued at the same time as this Decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR720557>

 1   The exact date of cessation of employment was not available at the time of the hearing.

 2   Australian Commercial Catering Pty Ltd v Fair Work Commission [2015] FCAFC 189, [62].

 3   [2013] FWC 1327, at [8] – [9]

 4   Ibid, at [22] – [23].

 5   Re Target Retail Agreement 2001, PR916204, 4 April 2002, [6].

 6   Clothing and Allied Trades Union v Hot Tuna (1988) 27 IR 226.

 7   Re Clerks Salaried Staffs (Agriculture Award) 1999, Print S1216, 24 November 1999, drawing upon Derole.

 8   Datacom Systems Vic Pty Ltd v Rasiq Khan; Siddharth Desai[2013] FWC 1327, Lawler VP, [8]; and see the factors stated in Application by Spotless Services Australia Limited [2013] FWC 4484, Sams DP, [14].

 9   Ibid, at [28]-[30].