Goroacen Services Pty Limited v Cally Edmonds - [2024] FWC 2763

[2024] FWC 2763

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.120—Redundancy pay

Goroacen Services Pty Limited
v

Cally Edmonds

(C2024/3089)

COMMISSIONER MATHESON

SYDNEY, 3 OCTOBER 2024

Variation of redundancy pay – other acceptable employment – amount reduced to zero.

Goroacean Services Pty Limited (Applicant) has made an application pursuant to s.120 of the Fair Work Act 2009 (Cth)(Act) seeking to reduce the amount of redundancy pay it is required to pay to its employee Cally Edmonds on the grounds that it obtained other acceptable employment for her.

Section 120(1) of the Act provides that s.120 applies if:

(a) an employee is entitled to be paid an amount of redundancy pay by the employer because of s.119; and

(b) the employer:

(i)obtains other acceptable employment for the employee; or
(ii)cannot pay the amount.

Section 120(2) of the Act provides that on application by the employer, the Fair Work Commission (Commission) may determine that the amount of redundancy pay is reduced to a specified amount (which may be nil) that the Commission considers appropriate.

Section 120(3) of the Act provides that the amount of redundancy pay to which the employee is entitled under s.119 is the reduced amount specified in the determination.

Both parties were self-represented before the Commission and following a conference both parties consented to the determination of the matter based on the materials before the Commission.

Section 120(1)(a) – Is Ms Edmonds entitled to be paid an amount of redundancy pay by the Applicant because of s.119?

Section 119(1) of the Act provides that 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 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.

Sections 121, 122 and 123 describe situations in which the employee does not have this entitlement. It was not in contention, and I find that none of the circumstances in s. 121, 122 and 123 apply to Ms Edmonds.

There is a complex factual matrix in this matter that I deal with below.

The Applicant’s business activities

The Applicant’s trading name is ‘The Boathouse Group’, it employs over 650 employees and operates 10 hospitality venues across Sydney and Patonga in New South Wales and is opening new venues, including a venue in Wollongong.[1] The Applicant’s operations include dining, accommodation, weddings, events, homewares, a ferry service and an amusement park.[2] Some of its venues offer a retail range of products for guests to purchase as part of their guest experience and the Applicant also has an e-commerce offering via its website and social media platforms.[3]

Ms Edmonds’ role in the business

Ms Edmonds held the role of Store Manager (Store Manager Role) in a homewares store at Palm Beach which is attached to a hospitality venue.

Changes in the retail environment

The Applicant submitted that the retail section of the Applicant’s business, ‘The Boathouse Home’ has been struggling recently, experienced a decrease in revenue exceeding $465,000 for financial year 2023-2024 compared to the prior year, and was under strategic review with a view to improving its operations and financial outcomes.[4] This included consideration of the ongoing viability of the Applicant’s retail operations which coincided with a requirement to make a decision regarding whether to renew a lease of the ‘Casa’ premises.[5]

Consultation

In March 2024 the Applicant commenced a consultation process[6] and on 15 March 2024, the Applicant’s People Experience Consultant, Ms Kate Hemat-Siraky met with Ms Edmonds and her manager.[7] The Applicant submitted that at this time it had made a definite decision that its bricks and mortar retail operations would diminish and rationalise and e-commence would remain static and/or increase but it had not made a final decision regarding Ms Edmond’s Store Manager Role.[8] The Applicant submitted that:

it anticipated that Ms Edmonds, who was the only employee who held the Store Manager Role in the group, may have had helpful input into the change as part of the consultation process;
it had a desire to retain Ms Edmonds in the business;
it decided, in good faith, to discuss with Ms Edmonds the potential changes, their effects and measures to avoid and reduce any adverse effects upon her.[9]

On 15 March 2024 following the meeting with Ms Edmonds, Ms Hemat-Siraky emailed Ms Edmonds and, by way of summary, stated:

the meeting had been to discuss the changes within the Applicant’s retail operations and to formally start to consult with Ms Edmonds regarding her employment moving forward;
Ms Edmonds and Ms Laura Patterson had been having conversations about changes and the diminishing retail footprint;
the Applicant imagined that over the next four to five weeks from the date of the email weekly retail work would diminish to a maximum of one to two days per week and would eventually cease in a physical sense altogether, with digital retail to cease after that;
in anticipation of these changes, the Applicant was required to consult with Ms Edmonds and consider any and all opportunities for suitable alternative employment and redeployment;
there were over 40 vacant roles across the group;
the Applicant would look to maintain Ms Edmonds’ salary and work hours/pattern as and provide a reasonable work location;
Ms Edmonds would not be demoted and may be able to explore a promotion depending on what opportunities she explored;
there were a number of opportunities where Ms Edmonds could use her skills as a retail manager that were transferable to roles requiring guest experience, guest management, POS processing, administration, planning etc;
open roles included the role of Reservations Agent, which the Applicant considered to be the closest/best opportunity for suitable alternative employment, Event Manager, Host, Assistant Venue Manager, Barista, Section Wait Staff and Bartender;
if any roles required training, structured training and support would be planned and provided as part of the transition;
the Applicant was also open to ideas from Ms Edmonds;
it would schedule a meeting for Tuesday 19 March to have further discussions with her and to start making decisions;
the Applicant was focused on retaining all staff and deploying Ms Edmonds to the areas the Applicant was focused on as a priority in the hospitality space.[10]

On Monday 18 March 2024 Ms Edmonds emailed Ms Hemat-Siraky:

stating that in their discussion, Ms Hemat-Siraky had verbally advised Ms Edmonds that her role had been made redundant;
- stating that this had not been noted in the email and asking whether Ms Hemat-Siraky could confirm that detail;
- stating that she appreciated Ms Hemat-Siraky sending information about job vacancies within the group and would look at the details of the roles;
- asking if she could be provided with an estimate of her redundancy pay entitlement should the positions offered not be suitable;
- seeking to confirm the amount of notice she was being provided, asking whether there was an expectation around working the notice period and whether there was an option for the notice period to be paid out;
- asking to reschedule the meeting on Tuesday 19 March 2024 to Thursday or Friday.[11]

On Tuesday 19 March 2024 Ms Hemat-Siraky emailed Ms Edmonds:

suggesting that they retain their meeting scheduled for that morning and deal with the questions Ms Edmonds has raised;
- stating that if that was not what Ms Edmonds preferred the meeting could be cancelled and they could revert to email correspondence. [12]

Ms Edmonds replied to the email a short time thereafter asking that the meeting be postponed to a later date and stating that she would appreciate more time to think over her options once she had all the information.[13]

On 19 March 2024 Ms Hemat-Siraky rescheduled the meeting to Thursday 21 March 2024 and sent a lengthy reply to Ms Edmonds’ emails which said, by way of summary:

Ms Edmonds’ role had not yet been made redundant, no decision had been made and she did not state Ms Edmonds’ role had been made redundant during their discussions;
the Applicant was consulting with Ms Edmonds before a decision was made about her employment in the scheme of a broader decision about retail;
in the meeting on 15 March 2024 options for suitable alternative employment were discussed but Ms Edmonds could also make suggestions that the Applicant hadn’t considered that could prevent her role from being made redundant;
regarding severance pay, Ms Edmonds’ entitlements would be in accordance with the National Employment Standards (NES) but there would be no entitlement to severance pay if suitable alternative employment was offered, even if Ms Edmonds did not accept that employment;
with so many opportunities and vacancies across the group and the group being able to make accommodations to meet Ms Edmonds’ requirements, she did not imagine a scenario where suitable alternative employment would not be able to be secured so in that respect ‘severance would not be on the table’;
if Ms Edmonds wished for her to do so, she could look up what Ms Edmonds’ entitlements would be if suitable alternative employment was not available;
she was hoping to discuss Ms Edmonds’ notice period at the meeting, notice would be in accordance with the NES and the approach would largely be determined by whether Ms Edmonds chose to take an offer of suitable alternative employment.[14]

Ms Hemat-Siraky’s email of 19 March 2024 then set out two possible scenarios, pending Ms Edmonds’ thoughts. The first scenario (Scenario 1) involved Ms Edmonds choosing not to take any offers of suitable alternative employment and ultimately ending her employment with the Applicant. Ms Hemat -Siraky said in this first scenario:

Ms Edmonds could work for four hours per day, five days per week (20 hours in total) doing online (e-commerce) orders and dispatch;
for the remaining hours that Ms Edmonds was not required to work, she would be paid notice in lieu;
in effect Ms Edmonds would work two weeks but be paid for four weeks and this would allow her to seek and secure alternative employment in that time;
Ms Hemat-Siraky and Ms Patterson would be happy to support Ms Edmonds with any outplacement activities and would be flexible in accommodating job search efforts and any trials or interviews Ms Edmonds may have had during that period;
while the workload would be halved, it was important that someone attended to e-commerce systematically every day, Monday through to Friday so under this scenario full days Monday, Wednesday and Friday could not be offered as an alternative;
some of the work would be at Palm Beach and some of the work would be at Whale Beach, a couple of minutes down the road.[15]

The second scenario involved Ms Edmonds transitioning into suitable alternative employment in a reservations or host role or other role that she selected. Ms Hemat -Siraky said in this second scenario:

between the decision being made and 19 April, there would be four weeks’ notice;
Ms Edmonds could work for four hours per day, five days per week (20 hours in total) doing online (e-commerce) orders and dispatch;
for the remaining hours up to 38 hours, Ms Edmonds would start to undertake training and upskilling/shadowing in her new role with capable and experienced team members supporting her;
the work would be undertaken at Palm Beach, Whale Beach and, pending Ms Edmonds’ decision, likely at Barrenjoey House (a short drive away) and Manly;
the Applicant would include commuting time to and from Manly as part of Ms Edmonds’ weekly hours as well as expenses for travel;
from 22 April 2024, Ms Edmonds would transition permanently into her new role and continue a structured induction and training plan for the first six months of her new role or until she had demonstrated competency in each of the tasks;
all of Ms Edmonds’ leave accruals and continuity of service would remain and continue.[16]

Ms Hemat-Siraky concluded the email by asking Ms Edmonds whether she had enough information to digest to enable her participation in the meeting on 21 March 2024 and indicated that by this date the Applicant would expect that Ms Edmonds would be ready to confirm her appetite for either of the scenarios or an alternative that could be discussed and assessed.[17]

Ms Edmonds responded via two emails indicating she would take some time to look over the email and get advice before the meeting on 21 March 2024, asking if there was a place where she could view the positions available as she would like more details, and asking where the Reservations position would be located.[18]

Ms Hemat-Siraky responded stating:

the Reservations role would be based from Barrenjoey House, Moby Dicks or Palm Beach and was yet to be finalised;
there was no full list of current vacancies available;
some but not all roles were currently advertised on Deputy, Seek, Barcats and social media;
Ms Edmonds could ‘safely assume’ that every group venue had available roles for a Host, Barista, Assistant Venue Manager, Team Leaders, Bartenders or Food Runners;
the Applicant wanted Ms Edmonds’ transition to another role to be positive for her and something that aligned to her future goals so she could be committed to and excited about the role;
for that reason, the Applicant was not taking the approach of directing her to take a role that was considered suitable alternative employment and was rather seeking to engage and consult with her to make it work.[19]

On 21 March 2024 following the meeting, Ms Edmonds emailed Ms Hemat-Siraky sating that she looked forward to receiving additional information and a detailed summary of the meeting and stating:

‘Following on from our conversation, it appears to me that you have made my role redundant – please can you confirm that?
If not, can you please clarify why I am being presented with these options?’

Offers of redeployment to alternative roles

On the afternoon of 21 March 2024 Ms Hemat-Siraky emailed Ms Edmonds:

offering her the role of Reservations Manager in the event the Store Manager Role was made redundant, attaching a job profile for the Reservations Manager role (Reservations Role) and employment agreement in respect of this role;
suggesting that the Store Manager Role would no longer be required to be undertaken from 19 April 2024;
requesting that she advise Ms Hemat-Siraky and Ms Patterson whether she wished to accept the role or decline it;
stating that if Ms Edmonds declined the role, the earlier provided scenario was suggested, unless Ms Edmonds provided an alternative for consideration.[20]

On 24 March 2024 Ms Edmonds emailed Ms Hemat-Siraky:

declining the offer to place her in the Reservations Role;
stating she did not believe the Reservations Role was a suitable alternative form of employment for her;
stating the Reservations Role required skills and experience that she did not possess, involved a change in work environment and industry away from her expertise, did not align with her long-term career trajectory and aspirations and taking up the Reservations Role would not offer her job security nor stability.[21]

On 24 March 2024 Ms Hemat-Siraky and responded to Ms Edmonds’ email and, by way of summary:

indicated that she had separately sent further details on other alternative roles being the roles of Assistant Venue Manager, Event Manager, Host, Barista and Bartender;
stated that she was doubtful that Ms Edmonds would find these more operational, on-the-floor roles appealing but that she was sharing them anyway for the purposes of consultation;
stated retail operations were changing and diminishing with the Casa closure from 7 April 2024 and change to an e-commerce led approach;
continuing in the Store Manager Role was not possible in the long term;
included a summary of what she understood to be the Applicant’s obligations under the Act and considerations in order for redeployment to be suitable;
seeking that Ms Edmonds confirm if she was choosing Scenario 1, i.e. choosing not to take any offers of suitable alternative employment and seeking to ‘finish up’ with the Applicant.[22]

On 25 March 2024 Ms Edmonds responded to Ms Hemat-Siraky via email stating that:

for the same reasons previously stated, the other alternative roles were not suitable;
she was not choosing Scenario 1 as she was not resigning and did not want to leave her employment with the group;
asking Ms Hemat-Siraky to advise on the next steps.[23]

Formal communication of Store Manager Role redundancy

Ms Hemat-Siraky responded a short time later on 25 March 2024 stating, by way of summary:

that Ms Edmonds has declined ‘all the offers of suitable alternative employment’ made to her and the consultation process had come to an end;
the Store Manager Role would be made redundant and Ms Edmonds would finish with the Applicant at the end of her notice period in four weeks time;
the notice period would be managed in the manner described in Scenario 1;
if Ms Edmonds did not wish to leave her employment with the group, the offers of suitable employment remained open to her and she would need a final answer by 27 March 2024.[24]

Ms Edmonds responded that evening stating, by way of summary:

on Friday 15 May 2024 Ms Hemat-Siraky had advised her that due to the closure of Casa/The Boathouse Home and the discontinuation of retail, the Applicant would no longer need the position of Store Manager;
after exploring alternative forms of employment and one formal offer of the role of Reservations Manager on 22 March 2024, she concluded and advised that the alternative positions were not suitable and did not accept the offer;
she has not resigned from her role and cannot be forced to terminate her employment and enter into a notice period;
the decision to close her workplace was made by the Applicant which therefore led to the decision to make the Store Manager Role redundant;
she awaited to hear about the next steps in the redundancy process and looked forward to receiving an outline of her redundancy package as per her entitlements.[25]

Ms Hemat-Siraky responded later that night via a lengthy email stating words to the effect that:

the directors and senior leadership team had evaluated that bricks and mortar retail was no longer profitable and was not the strategic focus of the group, considered a retail presence and an e-commerce model remained important but was unlikely to be supported by full-time, permanent resourcing;
the non-renewal of the Casa lease due to end on 7 April 2024 was aligned to the evaluation;
given Ms Edmonds was the sole full-time, permanent resource in the retail space, consultation commenced on 15 March 2024;
the Boathouse Group was required to consult and assess and offer any opportunities for redeployment and suitable alternative employment;
consultation must be genuine and occur before a final decision is made which is why Ms Hemat-Siraky was unable to confirm that the Store Manager Role was redundant, when Ms Edmonds asked a number of times for her to do so, because at that point a decision had not been made;
the Boathouse Group was required to consider any alternatives put forward by Ms Edmonds that would avoid her role becoming redundant but there were no potential alternatives to consider as part of the process;
Ms Edmonds was formally offered the role of Reservations Manager which she declined;
once declined Ms Edmonds was also offered the roles of Event Manager, Host, Assistant Manager, Barista and Bartender with the same employment terms, conditions and a nearby location;
‘Fair Work’s’ view is that the reasonableness of the offer/s is not based on your opinion or preferences, rather, the objective criteria that have been tested in many cases;
at this point Ms Edmonds was notified that her role would be made redundant;

Ms Hemat-Siraky suggested an approach to her notice period involving her working half the week supporting the transition out of Casa to online/e-commerce and Ms Edmonds had not confirmed whether she agreed or disagreed to this approach;
as a result of Ms Edmonds declining the alternative roles her entitlements would be limited to:

four weeks’ notice;
accrued annual leave entitlements;

there were two options from that point being:

Ms Edmonds could make an application to the Commission for unfair dismissal; or
the Applicant could make an application to the Commission to review the offer of employment it had made and confirm that no severance pay is owed in the circumstances.[26]

Ms Hemat-Siraky’s email concluded by seeking a response so that the Applicant could commence the relevant process.

Ms Edmonds responded on 27 March 2024 indicating that the Reservations Role position was unsuitable and she was entitled to 10 weeks’ redundancy pay.[27] Ms Hemat-Siraky responded stating she would lodge a Form F45A application in the Commission and in the meantime Ms Patterson would be in touch about logistics for Ms Edmonds’ notice period which would end on 21 April 2024.[28]

Extension of the Casa lease

On the morning of 28 March 2024 the Applicant made a decision to continue the Casa lease and made arrangements with the landlord to continue in the premises from 7 April 2024.[29]

On the afternoon of 28 March 2024 Ms Hemat-Siraky emailed Ms Edmonds following a meeting that day to confirm that the Casa lease would in fact be extended, that as a result the Store Manager Role would no longer be redundant, and Ms Edmonds would not be finishing up on 21 April 2024.[30] The email stated:

the nature of the site would be guest-focused and restaurant focused but would retain some retail presence which Ms Edmonds would oversee;
retail across the Applicant’s group would continue to diminish so sole retail capabilities would not make up the primary focus of Ms Edmonds’ role;
the duties could be consistent with Ms Edmonds’ skills and experience and ability to be trained;
the Applicant was in the process of updating employment contracts across the group and would eventually update Ms Edmonds’ contract terms alongside everyone else in the group.[31]

The Applicant submitted that as Ms Edmonds has always maintained in her correspondence that she wished to stay in the business in the role she was in, it was assumed that given she was only three days into her contractual notice period she would continue in her role.[32]

On 2 April 2024 Ms Edmonds responded via email and, by way of summary, stated:

while she was excited that the Applicant had decided to continue its presence at the site in Palm Beach, she had concerns and did not necessarily agree that the Store Manager Role was no longer redundant;
the Applicant had made it clear that it would continue with its decision to diminish its retail offering across the group and the lease extension would see the site become a full restaurant/hospitality site with a diminishing retail offering;
she did not understand how the Store Manager Role could continue given the significant changes to the role due to these changes;
she had been told that she would be required to work in a range of operations for the hospitality side of the business opening at the site and would no longer be reporting to Ms Patterson but would be reporting to the Venue Manager at the site;
clauses 5.4 and 5.5 in her employment agreement outlined that her duties may be required ‘to be varied as reasonably required from time to time after consultation’ and must be ‘consistent with the Employee’s skills and experience’;
given her lack of skills, experience and the fact that the duties lied within a separate part of the business and would be an ongoing requirement she did not feel the request was reasonable;
she was trying to remain positive but felt the process was causing her distress, confusion and was not offering her job stability or security.[33]

On 3 April 2024 Ms Hemat-Siraky emailed Ms Edmonds and, by way of summary, stated:

the retail offerings in venues would be overseen by ‘Sarah’ with the Venue Managers doing the bulk of the work;
liaising with Venue Managers on stock levels and logistics for replenishments would continue to be a part of Ms Edmonds’ retail scope as it had been until that point;
support for retail installation at Barrenjoey would be required;
the Applicant was undergoing discussion with the landlord at Casa for a major refurbishment and Casa would be closed in the interim with online orders offered;
the Applicant had developed a work and training plan for the following four week period which, by way of summary, involved:

dealing with online orders including dispatching them, replying to emails, organising logistics or physically delivering cushions earmarked for Patonga;
cleaning bookshelves, re-merchandising and sourcing new mesh for broken cupboards at the Applicant’s Moby Dicks venue at Whale Beach;
cleaning bookshelves and re-merchandising at Barrenjoey House and checking on retail presentation/offering;
undertaking onsite reservations training at Manly Pavilion with travel time to be considered work time and travel expenses to be reimbursed;

after the four week period there would be further consultation, along with feedback and assessment from those inducting Ms Edmonds to see if she was ‘skilled enough to permanently conduct all retail, guest experience, admin and support jobs from the local area’ and then make plans for part of Ms Edmonds’ hours to be reservations and retail along with other required duties;
the situation was still evolving and Ms Edmonds could feel assured about her job security as her role was part of the Applicant’s long term plans.[34]

On 4 April 2024 Ms Edmonds responded and, by way of summary:

stated she was struggling to understand how the Applicant could advise her that the ‘Store Manager’ role had been made redundant and then, whilst she was serving her notice period, advise that it was reversing the decision;
stated the decision to extend the lease and continue with a restaurant with a small retail offering like other venues did not change the Applicant’s plans to diminish the retail offering and duties required of her role;
questioned how the role of ‘The Boathouse Home Store Manager’ could continue if there was no homewares store;
stated that whilst she was not consenting to receiving training and experience in a reservations role not relevant to her position, she would continue to perform the duties asked of her as she sought further advice.[35]

On 4 April 2024 Ms Hemat-Siraky responded and, by way of summary, made statements to the effect that:

redundancy happens if the Applicant did not need Ms Edmonds’ job to be done by anyone;
this could occur when (amongst other things) the Applicant permanently closed the business (i.e. Casa) and the business no longer operates or has plans to;
this could also occur if, for example, technology entirely replaced the retail function, but even with the advances in tech and AI, she did not see this replacing the in-person interactions Ms Edmonds and the rest of the Applicant’s staff had every day with guests and customers and the need to ‘set up’ spaces and maintain them as well as the administration and operations that occur to support these functions;
redundancy of the role did look to be the case when the Casa lease was not to be renewed;
however the Applicant ‘very firmly’ needed someone to do retail and other related tasks in the group on an ongoing basis after the refurbishment was complete;
it would be disingenuous and dishonest if the Applicant was to say now, given the change in circumstances, that the role was redundant and then proceed to hire someone to undertake the duties that Ms Edmonds was undertaking and would be undertaking moving forward;
the Applicant was fulfilling its duty and obligation to retain Ms Edmonds in her employment, even in light of the changing circumstances;
the Applicant was making lots of proactive efforts to accommodate Ms Edmonds and these efforts appear to be delayed, rebuffed and not consented to;
the Applicant’s suggested reservations training and duties at Manly Pavillion gave Ms Edmonds the best chance of understanding how to complete those tasks, which were within her skills, qualifications and capability;
given Ms Edmonds’ role already involved travel to and from Dural, the Applicant could not understand how the proposed plan was not ideal for Ms Edmonds to complete those duties;
the Applicant considered all tasks allocated to Ms Edmonds to be reasonable and lawful directions issued in a fair and reasonable manner and should Ms Edmonds continue to refuse those directions, it would have no option but to consider the matter as a performance and conduct issue and would instigate disciplinary action;
Ms Patterson would send through a revised plan for the next four weeks that involved Ms Edmonds undertaking lawful and reasonable duties that she had already been undertaking as a part of her employment to that point as well as lawful and reasonable duties that she could undertake fairly and reasonably, withing her capacity and capability.[36]

The role of Retail and Store Manager

On 17 April 2024 the Applicant emailed Ms Edmonds following a conference before the Commission in relation to an application made by Ms Edmonds, attaching a copy of a job profile for the role of Retail and Store Manager (Retail and Store Manager Role) and stated, among other things:

the Applicant offered Ms Edmonds the Retail and Store Manager Role on 28 March 2024;
the Retail and Store Manager Role:

was to commence on 22 April 2024;
was to be worked between the hours of 9am and 5pm, Monday to Friday, with a 30 minute unpaid break each day;
had a base remuneration of $66,000 plus superannuation;
would have a sales incentive / commission program in addition to the base salary and the Applicant would ‘review the financials in line with the refurbishment and in consultation with the incumbent in the role to set genuine and stretch targets’;

Ms Edmonds had formally declined the Retail and Store Manager Role;
the Applicant would be requesting that the Commission vary the severance pay to zero based on the offer made which was substantively the same as the role Ms Edmonds held with the Applicant up to redundancy and had held since the commencement of her employment (albeit with a clearer articulation of the e-commerce retail duties);
if the Applicant could reply formalising the decline of the role and reasons, it would add those reasons to the Form F45A.[37]

On 18 April 2024 Ms Edmonds replied stating words to the effect that:

she was not offered the Retail and Store Manager Role on 28 March 2024 and the role attached to the email of 17 April 2024 had not previously been offered to her;
on 24 March 2024 she declined the role of Reservations Manager due to unsuitability;
the Store Manager Role was made redundant as per Ms Hemat-Siraky’s email on 25 March 2024;
the redundancy could not be reversed and her employment would end on 21 April 2024;
she had received advice that her pay increase letter received in 2021, which set out the incentive payment, was an active agreement;
she did not formally decline the Retail and Store Manager Role but would be in contact with an explanation of why the Reservations Manager Role was unsuitable.[38]

On 18 April 2024 Ms Hemat-Siraky replied stating, among other things, that during her meeting with Ms Edmonds on 28 March 2024 she informed her that the Casa lease had been extended, that there was an ongoing need for the Retail and Store Manager Role in the business and Ms Edmonds was offered to continue in her role, as it was, from 22 April 2024.[39] Ms Edmonds replied stating:

‘On the 28^th of March you advised that the role was no longer redundant and that my current role of Store Manager was to continue, not to re-offer me a position. How could I be re-offered my current role?’[40]

On 18 April 2024 Ms Hemat-Siraky replied stating, by way of summary:

she understood that the Applicant had notified Ms Edmonds of the redundancy on 24 March 2024 and could not unilaterally reverse the notification;
however the role of Retail and Store Manager was no longer redundant for the Applicant given the continuation of the Casa lease and this was the role that she and Ms Patterson offered for Ms Edmonds to stay employed in on 28 March 2024;
if Ms Edmonds did not accept the role, it would go to market to recruit for it;
if Ms Edmonds preferred, she could think of this as finishing her role on 21 April 2024 (as this had already been advised) and being offered the suitable alternative role (which happened to be the same role she was in) from 22 April 2024 and despite being ‘different’ roles, Ms Edmonds’ service and entitlements would continue if she accepted.[41]

On 19 April 2024 Ms Edmonds responded stating words to the effect that:

it was not clear to her that she was ever being offered the Retail and Store Manager Role at the meeting on 28 March 2024 or during the conference;
as she never saw an official offer or position description for the Retail and Store Manager Role she could not have formally declined;
it was her understanding that the Applicant’s decision to renew the lease resulted in the Applicant attempting to reverse the redundancy;
she expressed concern about this given the decision to continue at the site as a hospitality restaurant and not a homewares store did not change the decision to diminish the retail offering and in addition Ms Patterson confirmed the retail offering in venues is managed by someone else in conjunction with the café/restaurant Venue Managers;
without a store and without taking on the management of retail in venues, in addition to the advised plans to diminish the retail offering and eventual discontinuation of the online store, it was not clear to Ms Edmonds that there was potential for the role to continue, hence her request for the assistance of the Commission in resolving the matter;
Ms Hemat-Siraky’s communicated need to hire for the role immediately contradicted her previous direction for the Applicant to take annual leave, causing further uncertainty.[42]

On 19 April 2024 Ms Hemat-Siraky replied stating:

she was confused and didn’t think she had to send a job profile on 28 March 2024 given the offer made was for the job Ms Edmonds was already undertaking and assumed she knew what it looked like;
the Applicant needed the role of Retail and Store Manager and maintained this since the decision and direction from the Directors on 28 March 2024;
there was a plan to retain retail as a part of the Casa refurbishment as well as strategically (and with Casa as a training ground) expand across the rest of the group and online;
part of the role was physically in store (both at Casa and at other group retail footprints) and part of the role was in e-commerce.
if Ms Edmonds was to continue in the role she would still be required to take annual leave during the temporary shutdown given the significant leave balance held and the location from which the role operated;
a new employee would need inducting, would not have a leave balance to use during the temporary shutdown and would likely be redeployed for the Casa part of their role into duties that would be discussed with them in the recruitment process;
she needed to know with urgency whether Ms Edmonds accepted or declined the Retail and Store Manager Role as offered on 28 March 2024 and formalised with the job profile sent on 17 April 2024;
if Ms Edmonds accepted she would return to work on 22 April 2024 under a contract that she would provide for execution up until 3 May 2024 when the direction to take annual leave until 1 July 2024 would commence.[43]

Ms Hemat-Simaky’s email concluded seeking that Ms Edmonds share her reasons if she decided to decline the offer so they could be added to the s.120 application that the Applicant foreshadowed making.[44]

On 30 April 2024 Ms Edmonds emailed Ms Hemat-Siraky and stated:

‘I do still maintain the view that the role ‘Reservations Manager’ was the only formal offer of alternative employment made during the consultation period which I did not accept, therefore leading to the redundancy of the ‘Store Manager’ role being made on the 25^th of March. The details of the ‘Retail & Store Manager’ role were only sent to me via your email on the 17^th of April, after the redundancy had been made and whilst I was serving my notice period.’[45]

On 30 April 2024 Ms Hemat-Siraky responded and, by way of summary, stated:

the Applicant asserts that offers of the Retail and Store Manager Role were made to Ms Edmonds in the meeting of 28 March with a follow up email, in the conference before the Commission on 17 April and formally in writing on 18 April;
at any of those times, an acceptance of the Retail and Store Manager Role would have continued Ms Edmonds’ employment with the Applicant under all the same duties, terms and conditions she had been working under;
she had Ms Edmonds’ reasons for declining the other offers and would include in the Form F45A that Ms Edmonds’ reasons for declining the Retail and Store Manager Role as being because Ms Edmonds did not believe the role was formally offered to her;
the Retail and Store Manager Role had been in recruitment for 10 days and the Applicant was close to securing a suitable candidate so the offer of accepting the role was no longer possible, despite Ms Edmonds already declining it.[46]

Consideration and findings

The Applicant is not insolvent or bankrupt and in this regard s.119(1)(b) of the Act is not a relevant consideration.

The circumstances in s.119(1)(a) are met if:

the employee’s employment is terminated;
the termination is at the initiative of the employer; and
this is because the employer no longer requires the job by the employee to be done by anyone (except where this is due to the ordinary and customary turnover of labour).

On 25 March 2024, the Applicant provided Ms Edmonds with notice of the termination of her employment by reason of redundancy via its email which stated:

“You have declined all the offers of suitable alternative employment made to you and the consultation process has now come to an end. In accordance with our prior correspondence, your role of Retail / Store / Homewares Manager will be made redundant and you will finish with the Boathouse Group at the end of your notice period in 4 weeks time. You are now in your notice period as the decision has been made…”

The Applicant appears to have had a change of circumstances and sought to retract the notice of termination three days later stating in its email to Ms Edmonds of 28 March 2024:

‘Thanks for taking the time just now to meet with Laura and I virtually so we could share the exciting, hot off the press news that the Casa (Palm Beach) Lease will be extended as a result, your role of full time, permanent Retail Manager will no longer be redundant and you will not finish up with the Boathouse Group on 21 April 2024.’

At the time of this attempted retraction both the contract of employment and employment relationship remained in place as Ms Edmonds had been required to continue working throughout her notice period.

In Birrell v Australian National Airlines Commission,[47] Gray J considered the question of whether a unliteral withdrawal of notice of termination is possible and observed:

“The giving of notice of termination of a contract, in accordance with the terms of that contract, is a unilateral right. Its exercise does not depend in any way on the acceptance or rejection of the notice by the other party to the contract. The giving of such a notice operates to determine the contract by effluxion of the period of notice. It is clear that such a notice could be withdrawn by the consent of both parties to the contract; it seems unnecessary to determine whether, in the case of withdrawal of a notice by consent, the existing contract continues or a new contract comes into being. A question does arise, however, whether unilateral withdrawal of a notice is possible.”

In proceeding to consider the question as to whether unilateral withdrawal of notice of termination is possible Gray J considered a number of authorities including:

Emery v Commonwealth of Australia[48] in which his honour observed that the Commonwealth had conceded that it could not have unilaterally withdrawn the notice and the case proceeded on the footing that the concession was correct, with the Court finding that unilateral withdrawal of notice of termination is not possible;
The Australian Wool Selling Brokers Employers’ Federation v The Federated Storemen and Packers Union of Australia[49] in which Morre J relied upon Emery v Commonwealth of Australia[50]and held that a purported withdrawal of notice of termination is in law no more than an offer to treat for a new contract; if that offer is not accepted, the original notice continues and the employment is terminated;
Riordan v War Office[51] in which Diplock J held that notice of termination given by the employee, and purportedly withdrawn, was effective to bring the employee’s contract of employment to an end. In this regard Diplock J said:

“The giving of a notice terminating contractual employment, whether by the employee or employer, is the exercise of the right under the contract of employment to bring the contract to an end, either immediately or in the future. It is a unilateral act, requiring no acceptance by the other party, and, like a notice to quit a tenancy, once given it cannot in my view be withdrawn save mutual consent.”[52]

Decro-Wall International S.A. v Practitioners in Marketing Ltd[53]in which Buckley L J said:

“A repudiation and a notice of determination are clearly different things. A repudiation be withdrawn at any time before acceptance: a notice of determination validly given cannot thereafter be withdrawn without agreement.”[54]

Harris and Russell Ltd v Slingsby[55] in which the National Industrial Relations Court held that, where one party to a contract of employment gives a notice determining that contract, they cannot thereafter unilaterally withdraw the notice.

Gray J concluded that the authorities above supported the view that unilateral withdrawal of a notice of termination of a contract of employment is not possible and proceeded to say:

“…In principle, this conclusion must be correct. The purpose of providing in a contract for a period of notice of termination is to enable the party receiving the notice to make other arrangements. An employee given notice by his or her employer has a period of time in which to seek another job; an employer who receives notice has time to arrange for a substitute employee. It would be harsh if arrangements so made during the running of the notice period could be disrupted, and parties could be held to their contracts by unilateral withdrawal of the notice at the last minute. Such withdrawal, if possible, could lead to an employee being bound by contracts of employment with two employers, or an employer being bound by contracts of employment with two employees, each being required to give notice to one or the other in order to be extricated from this position, or possibly suffer the requirement to forfeit or pay wages for a period of time. In my view, I should lean against the adoption of any principle which could lead to such unfortunate consequences, and I should follow the authorities which tend to establish that withdrawal of a notice of termination of a contract of employment can only be effected by consent of both parties.”

In Khyam v Navitas English Pty Ltd t/a Navitas English the Full Bench of the Commission observed that a number of decisions of the Industrial Relations Court had interpreted the expression to mean termination of the employment relationship, not termination of the employment contract.[56] The proposition referred to above in Birrell v Australian National Airlines Commission[57] is concerned with the termination of the employment contract and did not specifically deal with the termination of the employment relationship and this warrants further consideration as to what constitutes “termination at the initiative of the employer”.

In Khyam v Navitas English Pty Ltd t/a Navitas English the Full Bench considered the case law in this regard and observed that in Mohoazab v Dick Smith Electronics Pty Ltd[58] a Full Court of the Industrial Relations Court said that the expression “termination of the employment” was to be understood as referring to termination of the employment relationship, stating:

“Viewed as a whole, the Convention is plainly intended to protect workers from termination by the employer unless there is a valid reason for termination. It addresses the termination of the employment relationship by the employer. It accords with the purpose of the Convention to treat the expression "termination at the initiative of the employer" as a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression termination of employment: Siagen v Sanel...

In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.[59]

After detailed analysis of the case law, the majority of the Full Bench found that the analysis of whether there has been a termination at the initiative of the employer is to be conducted by reference to termination of the employment relationship, not by reference to the termination of the contract of employment operative immediately before the cessation of the employment.[60] The Full Bench also endorsed the principles in Mohazab v Dick Smith Electronics Pty Ltd[61] that “termination at the initiative of the employer” refers to a termination brought about by an employer which is not agreed to by the employee and that in circumstances where the employment relationship is not left voluntarily by the employee, the focus of the inquiry is whether an action on the part of the employer was the principle contributing factor which results, directly or consequentially, in the termination of the employment.[62]

On 25 March 2024 the Applicant took the considered and deliberate step of giving notice of termination after Ms Edmonds rejected its offers to redeploy her into another role. In these circumstances I see no reason to depart from the general proposition that withdrawal of a notice of termination of employment can only be affected by consent of both parties as set out by Gray J in Birrell v Australian National Airlines Commission.[63] The Applicant sought to retract the notice of termination but was unable to do so without the consent of the Applicant and the evidence establishes that such consent was not provided. This set in place a course of events which, absent the consent of Ms Edmonds to the retraction of the notice of termination, ultimately led to the end of the employment relationship on 21 April 2024 upon the expiry of the notice period. The provision of the notice of termination on 25 March 2024 by the Applicant was the principle contributing factor that resulted in the termination of employment on 21 April 2024 and in this regard, I find that the termination was at the initiative of the employer.

At the time the actions that were the principle contributing factor resulting in the termination of the employment were taken, being 25 March 2024, the Applicant no longer required Ms Edmonds’ job to be done by anyone.

Ms Edmonds had been employed since 12 February 2019,[64] being a period in excess of five years. The General Retail Award 2020 (Retail Award) applied to Ms Edmonds’ employment.[65] The Retail Award provides for redundancy pay in accordance with the National Employment Standards (NES). Section 119 of the Act provides that an employee with at least five years but less than six years’ service will be entitled to 10 weeks redundancy pay. At the time of the Store Manager Role being made redundant Ms Edmonds was earning $65,158.37 per annum.[66] Based on her tenure, Ms Edmonds’ entitlement to redundancy pay under s.119 of the Act is $12,530.46.

As such, I find that, in accordance with s.119(1)(a) of the Act, Ms Edmonds’ employment was terminated at the Applicant’s initiative because it no longer required the job to be done by anyone and this triggered the Applicant’s entitlement to redundancy pay.

While the Applicant’s circumstances may have changed three days after it provided its notice, in circumstances where it could not retract its notice and could therefore not prevent the termination of employment at the conclusion of the notice period absent Ms Edmonds’ consent, this does not in my view displace my finding that, in accordance with s.120(1)(a) Ms Edmonds was entitled to be paid an amount of redundancy pay by the Applicant because of s.119.

The change in circumstances does however warrant further consideration under s.120(1)(b).

Section 120(1)(b) – Has the Applicant obtained other acceptable employment for the employee?

There is a complex factual matrix concerning the question of whether the Applicant obtained other acceptable employment for Ms Edmonds concerning consideration of multiple roles.

Consultation with Ms Edmonds about the redundancy of her role commenced on or around 15 March 2024. It is apparent from the evidence that the Applicant wanted to retain Ms Edmonds and attempted to engage her in exploring alternative employment opportunities within its business. When Ms Edmonds did not proactively identify any vacant positions that she was interested in, on the afternoon of 21 March 2024 Ms Hemat-Siraky emailed Ms Edmonds offering her the role of Reservations Manager in the event the Store Manager Role was made redundant, attaching a job profile for the Reservations Manager Role and an accompanying Employment Agreement.

On 24 March 2024 Ms Edmonds emailed Ms Hemat-Siraky:

declining the offer to place her in the Reservations Manager Role;
stating she did not believe the Reservations Manager Role was a suitable alternative form of employment for her;
stating the Reservations Manager Role required skills and experience that she did not possess, involved a change in work environment and industry away from her expertise, did not align with her long-term career trajectory and aspirations and taking up the Reservations Role would not offer her job security nor stability.[67]

The Applicant submits that the Reservations Manager Role constitutes other acceptable employment.

Ms Edmonds disputes this and by way of summary, submitted that her reasons for declining the role were as follows:

that the nature of the work of the Reservations Manager Role differed vastly from that of the Store Manager Role in that while both involved customer service the Store Manager Role was face to face, retail oriented and had a great emphasis on design whereas the Reservations Manager Role was based in an office, with customer service facilitated over phone and via email and was centred around hospitality and would not require her skills as a designer;
despite the term ‘Manager’ being used in the job title, the Reservations Manager Role did not outline any direct reports or involve management of a team and she had concerns over the lack of managerial responsibilities and potential demotion on the organisational chart. Ms Edmonds said that before the Applicant directed her to cut casual staff in September 2023, she had managed a team ranging from 3-6 employees at a time;
whilst it was clear from the contract for the Reservations Manager Role that the 38 hour work week was the same, the contract also stated that there would be requirements to work within the group’s operational hours of 4am to 2am depending on the day and the venue, this required flexibility to work outside of the normal store hours that she had previously worked, this was not suitable for her personal circumstances and a 9am to 5pm roster was not made clear to her;
she had formal training in Interior Design and Styling and a career in retail spanning over ten years and it would negatively impact her career trajectory to enter a different field of work and cease the practice of her skills in an industry aligned with her goals;
her long-term goals lie within the retail and design industries and a role outside her field would lead to dissatisfaction and lack of fulfilment;
the only cross over in duties was that both roles required customer service, this is a common requirement across various roles in almost every industry and the link is tenuous;
without the skills and personal interest in the role there was a higher risk of underperformance or dissatisfaction which could ultimately impact job security and longevity;
the role had newly been created and she had no examples of how the position was going to develop or provide career development;
the Store Manager role offered an incentive scheme which would give her the potential to earn a monthly bonus based on the achievement of sales targets.[68]

In response the Applicant submitted, by way of summary, that:

the Reservations Manager Role would have had face-to-face interactions with guests, particularly in the restaurant and accommodation settings and involved interaction with management;
Ms Edmonds had not been managing direct reports for at least 10 months;[69]
the operational hours outlined in the contract were the same for all roles across the group but very clearly, the role would not be expected to work to 2am as this was not the documented offer to Ms Edmonds and there is no operational demand or need to work outside set and agreed hours;[70]
a role within a team in a key business area as opposed to a standalone role inherently affords much greater job security and stability as well as career development and personal growth;[71]
there is an incentive and gratuity program in place for the Reservations Team and Ms Edmonds would have been subject to this program but this was not detailed to Ms Edmonds as the question was not asked nor the concern raised to be addressed;[72]
if personal goals and alignment were of such a high priority to Ms Edmonds it ‘begs belief’ why she would not have accepted to continue working in the role of Retail and Store Manager that was offered to her.[73]

After rejecting the offer of employment in the Reservations Manager Role Ms Edmonds was formally notified of the redundancy of the Store Manager Role and the termination of her employment on 25 March 2024. Ms Edmonds was required to work throughout the notice period.

Three days after this, on 28 March 2024 the Applicant sought to retract this notice of termination with Ms Hemat-Siraky stating in her email:

“Hi Cally

Thanks for taking the time just now to meet with Laura and I virtually so we could share the exciting, hot off the press news that the Casa (Palm Beach) Lease will be extended and as a result, your role of full time, permanent Retail Manager will no longer be redundant and you will not finish up with Boathouse Group on 21 April 2024.

As Laura shared, the nature of the site will still very much be guest-service and restaurant focussed but will retain some retail presence, which you will oversee. As we've previously shared, retail across the Group is and will continue to diminish, so sole-retail capabilities will not make up the primary focus of your role. Luckily, there are tasks in your current job profile and within Clause 5.4 and 5.5 of your employment contract that following the consultation that has already occurred with you as part of the potential redundancy and with training (sic) top of what you've previously had, will very much be able to constitute a full time, permanent role.

We will give you more information on this next week, but you will work closely with Sammy to support Casa as it evolves; to learn, grow, upskill and contribute to the team for success. Any and all of these duties will be consistent with your skills and experience and able to be learned and trained.

I did flag for your radar that BHG have been in the process of updating employment contracts across the Group for all staff, casuals and permanent staff. Eventually, we will also update your contract terms alongside everyone else in the Group - again, timeframes on this TBC and we can discuss further next week.

The intention is to meet with Mike and Sammy next Tuesday (who also both have only just found out about the Casa change) and make a plan we can share with you but wanted to share the news ahead of Easter of this change and its positive impact on your employment moving forward.

Just for the record, you did ask what would happen if the lease did fall through or did change again in future and I had said we would evaluate that when it happened, consult with you again and if and when a decision was made, notify you and likely find ourselves in the same place as we were this morning before this change and lease extension occurred.

We ask for your positivity, your commitment and your energy as we move forward.
If you have any other questions, don't hesitate to direct them to Laura and I.”

The Applicant appears to contend that from 28 March 2024 the Respondent offered for Ms Edmonds’ employment to continue in the same form and on the same terms as it did prior to the communicated redundancy. However, the difficulty with this position is that the email of 28 March 2024 creates an impression that the role may be different in that:

while the site the subject of the lease would “retain some retail presence”, which Ms Edmonds would oversee, retail across the group would “continue to diminish” and “sole-retail capabilities” would “not make up the primary focus of” the role;
- additional training would be provided;
- Ms Edmonds’ contract would be updated.

Without the specific detail regarding the changes, what the “primary focus” of the role would be or the terms of the contract that set out her pay and conditions, it is understandable that Ms Edmonds’ did not simply agree to the retraction of the notice of termination. It is apparent from the email of 28 March 2024 that some change was contemplated and without having those details I am unable to assess whether what was being offered at that particular point in time constituted ‘other acceptable employment’.

However, in my view, the nature of the employment being offered to Ms Edmonds became clearer after 17 April 2024 when Ms Hemat-Siraky emailed Ms Edmonds following a conference before the Commission to deal with an application Ms Edmonds had made to deal with a dispute. In that email, Ms Hemat-Siraky attached a job profile for the Retail and Store Manager Role and confirmed that the role would commence on 22 April 2024, immediately following the date that Ms Edmonds employment was to come to an end. It also set out further particulars concerning the offer as did a further email from Ms Hemat-Siraky to Ms Edmonds on 18 April 2024. While the email of 17 April 2024 did not make a specific offer of employment it was clearly apparent by the time of Ms Hemat-Siraky’s email on 19 April 2024 that the Applicant was making the role of Retail and Store Manager available to Ms Edmonds when she said ‘Do you accept or decline the role of Retail & Store Manager as offered on 28 March 2024 and formalised with job profile yesterday, Wednesday 17 April’.

Ms Edmonds did not ultimately accept the role of Retail and Store Manager stating:

“I do still maintain the view that the role of 'Reservations Manager' was the only formal offer of alternative employment made during the consultation period which I did not accept, therefore leading to the redundancy of the ‘Store Manager’ role being made on the 25th of March. The details of the ‘Retail & Store Manager’ role were only sent to me via your email on the 17th of April, after the redundancy had been made and whilst I was serving my notice period.”

Ms Edmonds provided a copy of the position description of the Store Manager Role that she held to the Commission. Both parties filed a copy the position description for the role of Reservations Manager that was provided to Ms Edmonds on 21 March 2024. Ms Edmonds also attached a copy of her employment agreement dated 1 February 2019 (Store Manager Employment Agreement) and the offer of employment made in relation to the Reservations Manager Role on 21 March 2024 (Offer of Employment) along with the employment agreement for the Reservations Manager Role (Reservations Manager Employment Agreement). Both parties provided a copy of the job profile for the Retail and Store Manager Role and a copy of the email provided by Ms Hemat-Siraky to Ms Edmonds dated 17 April 2024 attaching that job profile and including further particulars in relation to the role.

I note that while the Reservations Manager Role was offered to Ms Edmonds before she was provided with notice of termination, the Retail and Store Manager Role was not offered until her notice period had commenced. However, there is nothing in the language of s.120 to suggest that an employer would have to obtain employment for the employee before the commencement of the notice period for it to have obtained other acceptable employment for the employee. While it is possible to contemplate circumstances where the time at which the alternative employment is obtained may, dependent on the circumstances, be relevant to an assessment of whether it is acceptable, this will ultimately depend on the facts of each case.

The Applicant offered Ms Edmonds the roles of Reservations Manager or Retail and Store Manager. In doing so it obtained other employment for her. Ms Edmonds did not accept the Reservations Manager or Retail and Store Manager roles that were offered to her.

The next matter I need to consider is whether the other employment the Applicant obtained is other ‘acceptable’ employment. The onus lies upon the employer to prove that alternative employment is acceptable. [74]

In Clothing Trades Award[75]a Full Bench of the Australian Industrial Relations Commission considered the phrase “acceptable alternative employment” and said:

‘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, yet 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 Spotless Services Australia Ltd[76] Sams DP summarised the relevant case law and set out the following principles relevant to the assessment of whether the Applicant has obtained other acceptable employment for the employee:

‘a) the determination of what constitutes acceptable alternative employment is an
objective exercise;

b) mere rejection by the employee of alternative employment does not make it
objectively unacceptable;

c) comparable or equivalent pay and conditions, including hours of work and continuity
of service are important and relevant considerations;

d) to be acceptable, the new employment would need to take account of the employees’
skills, seniority, experience and capacity to perform the job;

e) the location and additional travel times to and from work are a relevant consideration.
For example, an offer of reemployment to another State would not ordinarily be found to be “acceptable employment”;

f)“acceptable employment” need not be identical employment and may still be considered acceptable, notwithstanding there might be additional inconvenience or a detrimental alteration to the terms and conditions of employment;

g) employees should not unreasonably refuse offers of alternative employment merely because they wish to access the benefits of redundancy pay’.

Below I proceed to compare the Store Manager Role with the Reservations Manager Role and Retail and Store Manager Role.

Location of the roles

Store Manager Role

The position description for the Store Manager Role indicates that the role would be located at ‘The Boathouse Home’ venue, which is at Palm Beach. Clause 8.1 of Ms Edmonds’ Employment Agreement appears to confirm this stating that as at the commencement of Ms Edmonds’ employment, the principal place of work will be as specified in Schedule 2, being ‘Boathouse Group Home’ which I understand as a reference to ‘The Boathouse Home’ venue.

Ms Edmonds’ Employment Agreement does however contemplate that Ms Edmonds may be required to travel to other places within the group and Australia to carry out her role.[77] The Employment Agreement also states that if the Applicant relocates its offices and/or establishments to another location, Ms Edmonds agrees to work at that new location.[78]

Reservations Manager Role

The Reservations Manager Role description did not specify a location however the accompanying Offer of Employment stated that the primary location of the Reservations Manager Role would be at Whale Beach and the secondary location would be at Palm Beach. Clause 4.2 of the employment agreement accompanying the Offer of Employment stated that Ms Edmonds would be asked to travel and work at different locations to meet business needs from time to time and required Ms Edmonds to agree to work at any of the Applicant’s venues if it required her to do so.

Retail Store Manager Role

On 19 April 2024 Ms Hemat-Siraky clarified that part of the role would be physically in a store (both at the Casa premises and other retail footprints) and part of the role would be in e-commerce. The job profile for the Retail and Store Manager Role states that the role is responsible for overseeing and managing the ‘daily operations and people management at The Boathouse Home’. While it seems the role would require presence at some other retail venues it is apparent that the role is based at ‘The Boathouse Home’ venue, which is in Palm Beach.

Hours of work

Store Manager Role

The Store Manager Role, Reservations Manager Role and Retail Store Manager Role were full time roles.

In her role as Store Manager Ms Edmonds worked Monday – Friday between the hours of 9am and 5pm with a 30 minute unpaid break each day.[79] Ms Edmonds’ Employment Agreement states that she is ‘expected to work 38 hours per week plus such additional hours on such days as are necessary to facilitate the proper discharge of’ her role.[80]

Reservations Manager Role

The Offer of Employment for the Reservations Manager Role provided to Ms Edmonds on 21 March 2024 stated that ordinary hours of work would be 38 per week. Clause 6.4 of the employment agreement that accompanied the Offer of Employment for that role stated that the weekly ordinary hours would be averaged over a period of up to 52 weeks and clause 6.5 contemplated the working of additional hours.

Clause 6.1 of the employment agreement stated that the Applicant’s operational hours ranged from 4.00am to 2.00am, Monday to Sunday, depending on the day and venue, that Ms Edmonds was expected to work on the days and times required by the Applicant to perform her position and, excluding exceptional circumstances, Ms Edmonds was required to make herself available to work during all venue opening hours, on public holidays, weekends and at any other time required by the Applicant.[81]

Despite this, in an email of 22 March 2024 from Ms Hemat-Siraky to Ms Edmonds and Ms Patterson, Ms Hemat-Siraky stated that working hours would be Monday – Friday between 9am and 5pm with a 30 minute unpaid break each day.

Retail Store Manager Role

In her email to Ms Edmonds on 17 April 2024, Ms Hemat-Siraky confirmed that working hours for the Retail Store Manager Role would be Monday – Friday between 9am and 5pm with a 30 minute unpaid break each day.

Purpose of the roles

Store Manager Role

The position description for the Store Manager Role stated that the role is to:

“…oversee and manage all daily proceedings concerned with the venue. Leading and training a team to deliver an exceptional product and service while ensuring the venue is kept clean, operational and that all measures are being taken to achieve profitability.”

Reservations Manager Role

The position description for the Reservations Manager Role set out the following role purpose:

“The Reservations Manager is responsible for creating the ultimate first impression of The Boathouse Group providing a range of guest experience related functions such as reservations and guest relations, ensuring a seamless end to end experience”.

Retail Store Manager Role

The position description states that the Retail and Store Manager Role ‘is responsible for overseeing and managing the daily operations and people management at The Boathouse Home (name potentially changed) to support the growth, strategic and financial goals of’ the Applicant.

Key accountabilities, duties and responsibilities

Store Manager Role

The key accountabilities, duties and responsibilities for the Store Manager Role were described in the position description to include:

‘Weekly wage percentage under 20%’
‘Management of the Boathouse Home Online store’
‘A perfectly presented and maintained venue’
‘100% of team in full uniform including apron’
‘Stock levels maintained and at an efficient level’
‘Maintain a high moral and appropriate professional appearance’
‘Punctual attendance to all shifts’
‘Recruiting team, performance management, holding inductions and on the job training’
‘Maintaining high levels of customer service, leading by example’
‘Ensuring maximum security of all team and guests’
‘Ensuring the venue is of the highest standard in terms of cleanliness and presentation’
‘Leading and delegating to team members, ensuring the venue runs smoothly’
‘Ensure the success of weekly rosters’.
‘Working with the Creative Director to ensure a consistent product is achieved.’
‘Ensuring all appropriate orders have been made daily’.
‘Compliance with operational guidelines and disciplinary rules.’
‘Maintain the efficiency and quality of work with a positive work ethic’.
‘Completing the Daily Takings procedure at the end of each day’
‘Ensure the venue operates efficiently and is immaculately presented’.
‘Ensuring the venue is adequately stocked’
‘Establish or implement policies, goals and objectives in conjunction and with direction from supervisors’
‘Contribute to be part of a positive team culture ensuring open communication’.
‘Adhere to grooming and appearance standards’.
‘Uphold the values, vision and mission of the business.’
‘Perform duties as required.’

Clause 5.4 of Ms Edmonds’ Employment Agreement contemplated that the Applicant’s ‘evolving needs or emphasis may require [Ms Edmonds’] duties to be varied as reasonably required from time to time after consultation with [Ms Edmonds’]. Clause 5.5 states that a ‘variation of [Ms Edmonds’] duties will not in itself be a variation or breach of the terms of [the Employment Agreement] provided that the nature and responsibilities of the Role as so varied are consistent with the Employee’s skills and experience’.

Reservations Manager Role

The key responsibilities of the Reservations Manager Role were described in the position description as follows:

‘Deliver exceptional customer service at all times;
Manage reservations for all of The Boathouse Group venues and effectively coordinate table assignments, table rotations and wait times;
Maintain a professional phone manner with all calls, ensuring these are attended to in a prompt and courteous manner;
Demonstrate excellent communication skills with both external and internal stakeholder;
Handle guest feedback and complaints in a polite, positive and professional manner;
Support The Boathouse Group campaigns by driving reservation conversions to maximise guest experiences e.g Melbourne Cup, Mothers Day;
Act upon upselling and cross selling opportunities when they arise;
Working cohesively with the Events team to enhance opportunities, both pre and post a scheduled event;
Maintain guest profile information to enhance in venue experience i.e celebration reason, favourite menu item, preferred seating in venue etc;
Work collaboratively with the team ensuring all tasks are completed on time and accurately’.

Retail Store Manager Role

The key responsibilities associated with the Retail and Store Manager Role were described in the position description as follows:

‘Retail Store Management

Drive operational excellence by ensuring an exceptional guest experience that aligns with The Boathouse Group’s standard of service;
Ensuring the retail venue is of the highest standard of cleanliness and presentation at all times;
Ensure that daily operations of the retail venue are carried out efficiently and in accordance with The Boathouse Group’s procedures and guidelines;
Liaise with the Creative Director to ensure a consistent product offering is achieved;
Responsible for the execution of effective stock management including but not limited to; ordering, receipting, storing and stock rotation for perishable items;
Ensure retail space is adequately stocked at all times;
Daily fulfillment of incoming orders;
Ensure consistent and constructive communication is held between team members and relevant stakeholders to manage customer expectations and maintain excellent customer service;
Completing the daily takings procedure at the end of each day;
Support the legal compliance and guidelines of the venue and The Boathouse Group.

Retail Online Management

Oversee the day-to-day operations of BHG e-Commerce platform, ensuring a seamless and user-friendly online shopping experience for customers;
Contribute to creating and the e-Commerce strategy working closely with the SLT;
Coordinate with product and inventory stakeholders to maintain accurate product listings, prices, and availability on the e-Commerce website;
Manage the order processing and fulfilment process, ensuring timely and accurate deliveries to customers;
Monitor e-Commerce analytics to identify opportunities for sales growth, customer retention, and conversion rate optimisation;
Collaborate with the marketing, sales and venue teams to develop and implement e-Commerce promotional campaigns to drive sales;
Support the marketing team across digital marketing initiatives, such as email marketing, social media advertising, and influencer partnerships, to ensure driving traffic and sales on the e-Commerce platform;
Track the e-commerce platform performance on a monthly basis, report back to the wider marketing and operational teams on marketing campaigns and use data insights to optimise future retail strategies’.

I note that or around 4 April 2024 the Applicant’s directors made a decision to refurbish the Casa premises and this was anticipated to take between three and four months in time for a re-opening of the venue in September 2024.[82] On 4 April 2024 Ms Hemat-Siraky emailed Ms Edmonds to:

notify her of the temporary shut down for a period of at least three months for the purposes of the renovations;
directing Ms Edmonds, pursuant to the Retail Award, to take paid annual leave between 3 May and 28 June 2024, returning to work on 1 July.

In her email to Ms Edmonds on 19 April 2024, Ms Hemat Siraky stated that if Ms Edmonds accepted the Retail Store Manager Role, Ms Edmonds would return to work on 22 April 2024 under a contract that she would provide for execution, this would continue until 3 May 2024, and the direction to take annual leave between 3 May 2024 and 1 July would remain.

Role requirements

Store Manager Role

The only qualification specified as being expressly required in the position description for the Store Manager Role was the requirement for a current driver’s licence.

Reservations Manager Role

The attributes required for the Reservations Manager Role as described in the position description were:

‘Highly professional and customer-oriented;
A confident, calm and approachable demeanour;
Natural ability to build exceptional relationships with internal and external stakeholders;
Tactful and discreet on guest issues;
Attention to detail and good administration skills’.

The qualifications and other requirements for the Reservations Manager Role were described in the position description follows:

‘At least 1 year of experience in a role with transferable skills in the hospitality, event or retail industries servicing large guest numbers;
Guests and colleagues must always be treated inclusively with respect and warmth. The Privacy Act 1988 must be followed at all times.
The safety and wellbeing of our community is of paramount importance. You must take reasonable care for the safety of yourself and others and immediately report any hazardous conditions, near misses and injuries, correctly. You will participate in Return to Work Programs, as required, across The Boathouse Group.
Multi-skilling is an essential component of working at The Boathouse Group; willingness and ability to learn and perform tasks in all areas is required’.

Retail Store Manager Role

The attributes required for the Retail Store Manager Role as described in the position description were:

‘Strong leadership and people management skills - must be able to lead by example;
Excellent organisational skills with ability to prioritise tasks;
A creative and brand-aligned approach to your work and interactions with guests and customers;
An eye for detail and strong administrative skills and work ethic;
Exceptional communication and interpersonal skills;
Highly professional and customer oriented’.

The qualifications and other requirements for the Retail Store Manager Role were described in the Retail Store Manager Role position description as follows:

‘Prior experience in a comparable role, leading a team, is advantageous;
Valid NSW drivers licence;
Guests and colleagues must always be treated inclusively with respect and warmth. The Privacy Act 1988 must be followed at all times.
The safety and wellbeing of our community is of paramount importance. You must take reasonable care for the safety of yourself and others and immediately report any hazardous conditions, near misses and injuries, correctly. You will participate in Return to Work Programs, as required, across The Boathouse Group.
Multi-skilling is an essential component of working at The Boathouse Group; willingness and ability to learn and perform tasks in all areas is required’.

Reporting relationship

Store Manager Role

The position description for the Store Manager Role states that the role reports to the Operations Manager.

Reservations Manager Role

The Offer of Employment for the Reservations Manager Role states that the role reports to the Reservations and Guest Relations Manager.

Retail Store Manager Role

The position description for the Retail Store Manager Role does not include a reporting relationship. It is unclear as to whether the role would continue to report to Ms Patterson or the Venue Manager at the site.

Salary

Store Manager Role

At the time of the Store Manager Role being made redundant Ms Edmonds was earning $65,158.37 per annum.[83]

Reservations Manager Role

The Offer of Employment for the Reservations Manager Role offered a remuneration package of $72,325.79 inclusive of superannuation, equating to a base salary of $65,750.72 plus 11 percent superannuation.

Retail Store Manager Role

In her email dated 17 April 2024 Ms Hemat-Siraky stated that the Retail Store Manager Role had a base remuneration of $66,000 per annum plus superannuation. [84]

Other conditions

Store Manager Role

While the Applicant said the Retail Award applied to her in respect to the work she undertook in the Store Manager Role, [85] Ms Edmonds’ Employment Agreement stated that her salary was inclusive of all entitlements and benefits provided for under any applicable award.[86] Further, clause 7.4 of Ms Edmonds’ Employment Agreement states that Ms Edmonds’ ‘salary has been set on the basis that additional hours will be worked and it is better off over all (sic) than any applicable Award.’

Ms Edmonds’ Employment Agreement provides that the Applicant will make superannuation contributions as required by law.[87] Ms Edmonds’ entitlement to notice of termination was also in accordance with the Act.[88] Ms Edmonds’ Employment Agreement also provides for leave entitlements in accordance with the Act.[89]

There are a range of other conditions in Ms Edmonds’ Employment Agreement including but not limited to:

a post termination employment restraint;[90]
obligations concerning confidential information and intellectual property;[91]
an entitlement to be re-imbursed for all reasonable out of pocket expenses incurred in performing the role or carrying out duties under the Employment Agreement within the budget set by the Applicant subject to certain conditions;[92]
obligations concerning outside interests;[93]
obligations concerning personal presentation.[94]

Reservations Manager Role

The Offer of Employment and accompanying employment agreement in respect of the Reservations Manager Role indicated that Ms Edmonds’ employment would be regulated by the Restaurant Industry Award 2020 (Restaurant Award) and the role classification was ‘Clerical Grade 3’ of the Restaurant Award. However clause 25.3 of the employment agreement in respect of the Reservations Manager Role stated that except as specifically provided for under the Agreement, the annual remuneration and other benefits were in satisfaction of any legal entitlement arising under an award, enterprise/collective agreement, the NES or any other law or legal instrument such as but not limited to any periodic rate of pay, overtime payments, weekend and holiday penalties, shift allowance, vehicle allowance, travelling expense, penalty payments and annual leave loading.

The employment agreement stated that superannuation contributions would be made in accordance with relevant superannuation legislation.[95] The Offer of Employment stipulated a 4 week notice period. Leave entitlements associated with the Reservations Manager Role were in accordance with the NES and any applicable guidelines the Applicant had.[96]

There are a range of other conditions set out in the employment agreement accompany the Offer of Employment for the Reservations Manager Role including but not limited to:

post-employment obligations, including a post-employment restraint;[97]
obligations concerning confidential information and media;[98]
conditions dealing with filming and recording;[99]
conditions regarding surveillance;[100]
an entitlement to reimbursement for expenses reasonably and necessarily incurred in the performance of the duties, subject to certain conditions;[101]
conditions dealing with acceptance of gifts, conflicts of interest and other employment;[102]
obligations concerning food safety;[103]
conditions concerning intellectual property and moral rights.[104]

Retail Store Manager Role

No written contract was provided in respect of the Retail Store Manager Role however the terms of the offer are as set out in Ms Hemat-Siraky’s email to Ms Edmonds on 17 April 2024, with further clarification provided in subsequent emails on 18 and 19 April 2024.

Incentive structure

Store Manager Role

On 29 October 2021 the Respondent’s CEO wrote to Ms Edmonds offering her a new salary and stating:

‘On top of this, we would like to offer you an incentive starting from December 2021. This will include a –

·$1,000 Monthly sales incentive.’[105]

On 8 December 2023 Ms Edmonds emailed her manager, Ms Patterson, and asked if she could advise of the Boathouse Home budget for the months of December and January stating she would ‘love to work towards achieving [her] incentive’.[106] Ms Edmonds followed up with Ms Patterson again on 22 December 2023[107] and Ms Patterson replied via email as follows:

‘Hey Cally,

Let’s have a chat next week on Wednesday to fully address this. I’ll put in a time now and let me know if you can make it….’[108]

On 8 December 2023 Ms Edmonds emailed Ms Patterson stating:

‘Hi Laura,

Thank you for your time this morning to discuss this.
Sorry – could you please offer some clarification on how the attached Pay Increase Letter is no longer valid due to Andrew’s departure from the business? As well as some clarification on how this isn’t clear enough? Sorry – upon further reflection I am very confused as to how this could now be void and any more clear.’[109]

Ms Edmonds submitted that the incentive scheme gave her the opportunity to earn a $1000 bonus for each month that she could achieve the sales targets for the in-store and online sales budgets.[110] Ms Edmonds said that while the CEO who had made her the offer left the Applicant in August 2022, she continued to strive to achieve her targets however, despite exerted efforts, due to the economic climate there was a dramatic decrease in sales.[111]

Ms Edmonds said that she had previously been issued a spreadsheet at the start of each financial year outlining the sale targets for in-store and online sales channels but that at the end of the 2022-2023 financial year she was not issued with a new set of sales targets to achieve.[112]

I accept that Ms Edmonds was provided with an incentive scheme as a part of the Store Manager Role however there is little evidence about the specifics of this scheme and when Ms Edmonds was entitled to be paid her $1000 per month. It is also questionable as to whether the targets would have been achieved given the changes in the retail environment and that the Applicant had experienced a dramatic decrease in sales.

Reservations Manager Role

While the Applicant submitted there is an incentive and gratuity program in place for the Reservations Team and Ms Edmonds would have been subject to this program, this is not articulated anywhere in the position description, offer or employment or contract accompanying the role.

Retail Store Manager Role

In her email to Ms Edmonds on 17 April 2024 regarding the Retail Store Manager Role, Ms Hemat-Siraky said:

“BHG can confirm that although your role (or you) have to date, never met the requirements to be paid an incentive under the current inventive program, this role will have a sales incentive / commission program in addition to the base salary. BHG will review the financials in line with the refurbishment and in consultation with the incumbent in the role to set genuine stretch targets”.

Continuity of service

Reservations Manager Role

The Offer of Employment provided to Ms Edmonds on 21 March 2024 in respect of the Reservations Manager Role expressly records the service recognition date as 12 February 2019, being the date Ms Edmonds commenced employment with the Applicant.

Retail Store Manager Role

In her email of 18 April 2024 Ms Hemat-Siraky confirmed that continuity of service and entitlements would continue if Ms Edmonds accepted the Retail and Store Manager Role. Ms Hemat-Siraky also stated in her email that this would have been the case if Ms Edmonds accepted the Reservations Manager Role or other offered role.

Findings

If Ms Edmonds had accepted either the Reservations Manager Role or Retail Store Manager Role, it is apparent that continuity of service would be recognised and leave entitlements preserved.

There are both similarities and differences between the Store Manager Role and Reservations Manager Role.

The stated skills required for the Store Manager Role are limited to the requirement to hold a driver’s licence. However, it is apparent the stated requirements for the Reservations Manager Role are requirements that, based on Ms Edmonds’ five years of service in the Store Manager Role, Ms Edmonds should not have experienced any difficulty meeting including, by way of summary, customer service skills, the ability to build relationships with internal and external stakeholders, discretion, attention to detail and administration skills. While it seems likely that Ms Edmonds had the capacity to undertake the role based on these requirements, Ms Edmonds’ skills and experience require further consideration in the context of the changed nature of the work.

In Von Bibra Robina Autovillage Pty Ltd[113] SDP Richards considered a matter in which an employee’s skills were transferable to another role which appeared to be the basis upon which an alternative position was offered to him 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 a sufficient correlation between the relevant indicia of the current work and the alternative employment as proposed.’[114]

When the Store Manager and Reservations Manager roles are further compared it is apparent that there are similarities in that:

the Store Manager Role is based at The Boathouse Home venue in Palm Beach whereas the primary location of the Reservations Manager Role would be at Whale Beach and the secondary location would be at Palm Beach. Whale Beach is within close proximity to Palm Beach;
the hours of work are the same;
the salary and contractual conditions are comparable;
both roles involve customer service and sales.

There are however differences in that the Reservations Manager Role is covered by the Restaurant Award rather that the Retail Award. The employment agreements in respect of both roles purport to offer a salary in satisfaction of entitlements under an award and I do not consider this to have any material impact given the consistent working hours for each role. Despite the Applicant now saying there was an incentive scheme, it was not apparent that this was the case.

While both roles involve customer service and sales, there are also differences. People management and leadership responsibilities do not appear to be present in the position description for the Reservations Manager Role. Despite this, it appears that this aspect of the Store Manager Role had fallen away in recent times.

Ms Edmonds expressed concern that the Reservations Manager Role would not require her skills as a designer and noted she had formal training in interior design and styling. The Applicant indicated that it was aware of a previous Director using design skills to source homewares and while Ms Edmonds may have been consulted for her opinion, the task was never formally in the remit of a Store Manager.[115] While Ms Edmonds’ design skills may have been advantageous to her whilst she was working in a homewares store, it is not apparent that the role of Store Manager actually required these skills and such skills are not called out in the position description for the role.

In Von Bibra Robina Autovillage Pty Ltd[116] SDP Richards considered a circumstance in which the alternative employment was in a retail sales position compared to a wholesale sales position the employee originally held. SDP Richards found that in the circumstances of that matter the objective test demonstrated that the alternative employment was too far removed from the former position in terms of remuneration and key functions and skills to be considered to be acceptable alternative employment.[117] SDP Richards proceeded to say:

‘Critically, in the Commission’s view, the transfer to a retail sales position from a wholesale sales position which is removed from the buying public itself demonstrates that the alternative work is not acceptable on the objective test. That is, the alternate employment has insufficient connection with the employee’s demonstrated skill set and experience. The employee has grounds, therefore, to consider his employment in retail sales, places him in more precarious circumstances overall than if his former duties were still available’.[118]

While the facts of this matter involve two different roles involving a sales element, the facts in this matter are distinguishable. The Applicant’s primary business activity is hospitality, the Store Manager Role was the only permanent retail role within the Applicant’s business and it was abridged to a hospitality venue. In moving into the hospitality function of the business, this would have likely afforded greater job security in the context of a struggling retail environment.

However critically, the duties suggest the primary focus of the Reservations Manager Role is managing reservations in a hospitality and events setting rather than managing retail operations within a homewares venue. This is evident in the stated responsibilities of the Reservations Manager Role to ‘manage reservations for all of The Boathouse Group venues and effectively coordinate table assignments, table rotations and wait times’ and to ‘maintain guest profile information to enhance in venue experience i.e celebration reason, favourite menu item, preferred seating in venue etc.’ Further, while both roles involved selling, they were selling fundamentally different things – in the case of the Store Manager Role, homewares, and in the case of the Reservations Manager Role, experience and event space. This is evident in the responsibilities in the Reservations Manager Role to ‘[s]upport The Boathouse Group campaigns by driving reservation conversions to maximise guest experiences e.g Melbourne Cup, Mothers Day’, to work ‘cohesively with the Events team to enhance opportunities, both pre and post a scheduled event’ and to ‘[a]ct upon upselling and cross selling opportunities when they arise’. The Reservations Manager does not appear to have a retail focus or a retail element.

As noted above ‘acceptable employment’ need not be identical employment and may still be considered acceptable. However in my view, there are significant differences in the nature of the Store Manager Role and Reservations Manager Role. While there are similarities and differences between them, in my view, the significant differences in the key functions and nature of the work means that the Reservations Manager Role is not acceptable applying an objective test.

When the Store Manager and Retail Store Manager roles are compared it is apparent that:

they are both based at The Boathouse Home venue in Palm Beach with some travel required, predominantly to other venues with a retail offering within the northern beaches area of Sydney;
the hours of work are the same;
the salary and conditions are comparable;
both roles involve an incentive scheme. While it is unclear what the precise differences are between these schemes, I do not consider this material in circumstances where it is unclear as to whether or not Ms Edmonds would have actually been paid an incentive in the context of a decline in sales and changes in the retail environment. While it is not certain, the reopening of the renovated Casa premises may offer enhanced opportunity in this regard;
both roles purport to pay a salary but would ostensibly fall within the coverage of the Retail Award.

When the duties and responsibilities of the Store Manager and Retail Store Manager roles are compared it is apparent that there are substantial similarities between the roles in that both roles:

are concerned with customer service;
set out responsibilities for store presentation and working with more senior stakeholders (the creative director/senior leadership team/Group Manager – Interior Design & Venue Presentation) to ensure a consistent product offering is achieved;
are concerned with stock management and ordering;
are concerned with store operations;
have responsibilities relating to safety.

Both the Store Manager and Retail Store Manager roles have an online e-commerce component and while this is described as ‘Management of the Boathouse Home Online store’, there is further detail articulated in the Retail Store Manager Role position description that makes clear that the role is responsible for, by way of summary, overseeing an e-commerce platform, contributing to e-commerce strategy, monitoring e-commerce data and analytics and supporting the marketing team with digital marketing activities.

While there is a greater emphasis on e-commerce and lesser emphasis on people management and leadership when the Retail Store Manager Role is compared with the Store Manager Role in the duties described, the overarching purpose of the roles is broadly similar involving management of people and operations at ‘The Boathouse Home’ venue and supporting the Applicant’s financial goals. Further, it is apparent that leadership and people management would remain a component of the Retail Store Manager Role as one of the role requirements was stated as ‘Strong leadership people management skills – must be able to lead by example’. While it seems possible that the Retail Store Manager Role may have a different reporting line, when the role is considered overall, it is not apparent that there is any diminution in seniority.

The Store Manager and Retail and Store Manager roles are, in my view, substantially similar notwithstanding there may be a different reporting line and that the Retail Store Manager Role appears to contemplate an enhanced focus on e-commerce given the changes occurring in the retail environment.

The stated skills required for the Store Manager Role are limited to the requirement to hold a diver’s licence, which is also a requirement for the Retail Store Manager Role. However it is apparent the stated requirements for the Retail Store Manager Role are requirements that, based on Ms Edmonds’ five years of service in the Store Manager Role, Ms Edmonds should not have experienced any difficulty meeting including, by way of summary, leadership and people management skills, organisational and administrative skills, customer service skills, and communication and interpersonal skills. The role was aligned to Ms Edmonds skills and experience and she had the capacity do the role.

While there was to be a closure of the Casa premises pending renovations, this was temporary, Ms Edmonds had paid leave available to her and there is no evidence that Ms Edmonds would suffer any loss of pay for the period of the renovation, including outside of her leave period.

In weighing up the above factors, in offering Ms Edmonds the role of Retail Store Manager, I find that the Applicant has obtained other acceptable employment for Ms Edmonds in accordance with s.120(1)(b)(i) of the Act.

Section 120(2) – should the amount of Ms Edmonds’ redundancy pay be reduced?

As noted above, based on her tenure, Ms Edmonds’ entitlement to redundancy pay under s.119 of the Act is $12,530.46. The Applicant is seeking that the Commission reduce Ms Edmonds’ redundancy pay to zero and Ms Edmonds is contesting this.

I have earlier found that the Applicant obtained other acceptable employment for Ms Edmonds. The Applicant had contemplated changes in its bricks and mortar retail environment and was contemplating the non-renewal of its lease at the Casa premises and had commenced a process of genuine consultation with Ms Edmonds about this with a view to retaining her as an employee in its business and to mitigate the impact of change upon her. The Applicant sought to engage Ms Edmonds in the process and when she did not offer alternatives for consideration it offered her the Reservations Manager Role.

Ms Edmonds’ Store Manager Role was made redundant when she did not accept the Reservations Manager Role. However this is not where the relevant factual matrix ends and the Applicant’s circumstances changed only three days after Ms Edmonds had been notified of the redundancy when the directors decided to renew the Casa lease. While this was likely a confusing experience for Ms Edmonds, Ms Hemat-Siraky communicated this to Ms Edmonds shortly after the change became apparent to her and Ms Edmonds was ultimately offered a role that if not the same, was very similar the role she held with the Applicant. While the position descriptions for the Store Manager Role and Retail and Store Manager Role are not identical, the clearer focus on retail online management in the Retail and Store Manager Role reflected the realities of the retail and business environment and it was a reasonable and responsible course of action for the Applicant to manage the expectations of the person who would be working in this role by adjusting the role description to call out the retail online management component of the role in more detail.

In the 2004 Redundancy Case,[119] the Full Bench of the Australian Industrial Relations Commission considered the basis for severance pay provisions identified in the Termination, Change and Redundancy No. 1 Case,[120] being ‘compensation for non-transferable credits and the inconvenience and hardship imposed on employees’ and found that the term ‘hardship’ should be given its ordinary meaning which is broad enough to cover areas such as loss of seniority, loss of security of employment and other matters which were identified in the evidence in that case including lower job satisfaction and a reduction in social status.[121]

The offer of other acceptable employment was made before the end of Ms Edmonds’ notice period and a little over three weeks after a consultation process had commenced with Ms Edmonds regarding potential changes .While Ms Edmonds said that the role of Retail and Store Manager was tabled after the consultation period ended and after the process to seek alternative employment outside the Applicant had begun, there is no evidence that Ms Edmonds had accepted another role or was bound by contracts of employment with two employers or had even been offered another job.

Had Ms Edmonds accepted the Retail Store Manager Role, any inconvenience, hardship or other adverse effects associated with the redundancy communicated on 25 March 2024 would have been ameliorated or at the very least significantly diminished, notwithstanding that the dynamic nature of the changes may have given rise to some temporary confusion during communications between 15 March 2024 and April 2024.

While it seems likely Ms Edmonds had a preference to be paid severance pay rather than remain employed by the Applicant, this does not change the fact that the Applicant had obtained other acceptable employment for her and that it was Ms Edmonds who elected not to accept the offer of other acceptable employment. In these circumstances I consider it appropriate to reduce the amount of Ms Edmonds’ redundancy pay.

Taking these matters into account, I determine that Ms Edmonds’ redundancy pay be reduced to zero.

COMMISSIONER

[1] Applicant’s submissions at [1].

[2] Applicant’s submissions at [1].

[3] Applicant’s submissions at [1].

[4] Applicant’s submissions at [4].

[5] Applicant’s submissions at [4].

[6] Applicant’s submissions at [11].

[7] Applicant’s submissions at [12].

[8] Applicant’s submissions at [13].

[9] Applicant’s submissions at [13].

[10] Ms Edmonds’ Submissions, email from Ms Hemat-Siraky to Ms Edmonds dated 15 March 2024.

[11] Ms Edmonds’ Submissions, email from Ms Edmonds to Ms Hemat-Siraky dated 18 March 2024.

[12] Ms Edmonds’ Submissions, email from Ms Hemat-Siraky to Ms Edmonds dated 19 March 2024.

[13] Ms Edmonds’ Submissions, email from Ms Edmonds to Ms Hemat-Siraky dated 19 March 2024.

[14] Ms Edmonds’ Submissions, email from Ms Hemat-Siraky to Ms Edmonds dated 19 March 2024.

[15] Ms Edmonds’ Submissions, email from Ms Hemat-Siraky to Ms Edmonds dated 19 March 2024.

[16] Ms Edmonds’ Submissions, email from Ms Hemat-Siraky to Ms Edmonds dated 19 March 2024.

[17] Ms Edmonds’ Submissions, email from Ms Hemat-Siraky to Ms Edmonds dated 19 March 2024.

[18] Ms Edmonds’ Submissions, emails from Ms Edmonds to Ms Hemat-Siraky dated 19 March 2024.

[19] Ms Edmonds’ Submissions, email from Ms Hemat-Siraky to Ms Edmonds dated 19 March 2024.

[20] Ms Edmonds’ Submissions, email from Ms Hemat-Siraky to Ms Edmonds dated 21 March 2024.

[21] Ms Edmonds’ Submissions, email from Ms Edmonds to Ms Hemat-Siraky dated 24 March 2024.

[22] Ms Edmonds’ Submissions, email from Ms Hemat-Siraky to Ms Edmonds dated 24 March 2024.

[23] Ms Edmonds’ Submissions, email from Ms Edmonds to Ms Hemat-Siraky dated 25 March 2024.

[24] Ms Edmonds’ Submissions, email from Ms Hemat-Siraky to Ms Edmonds dated 25 March 2024.

[25] Ms Edmonds’ Submissions, email from Ms Edmonds to Ms Hemat-Siraky dated 25 March 2024.

[26] Ms Edmonds’ Submissions, email from Ms Hemat-Siraky to Ms Edmonds dated 25 March 2024.

[27] Ms Edmonds’ Submissions, email from Ms Edmonds to Ms Hemat-Siraky dated 27 March 2024.

[28] Ms Edmonds’ Submissions, email from Ms Hemat-Siraky to Ms Edmonds dated 27 March 2024.

[29] Applicant’s Submissions at [28].

[30] Applicant’s ‘Form F45A – Application to vary redundancy pay’, email from Ms Hemat-Siraky to Ms Edmonds dated 28 March 2024.

[31] Applicant’s ‘Form F45A – Application to vary redundancy pay’, email from Ms Hemat-Siraky to Ms Edmonds dated 28 March 2024.

[32] Applicant’s Submissions at [29].

[33] Applicant’s Submissions, email from Ms Edmonds to Ms Hemat-Siraky dated 2 April 2024.

[34] Ms Edmonds’ Submissions, email from Ms Hemat-Siraky to Ms Edmonds dated 3 April 2024.

[35] Ms Edmonds’ Submissions, email from Ms Edmonds to Ms Hemat-Siraky dated 4 April 2024.

[36] Ms Edmonds’ Submissions, email from Ms Hemat-Siraky to Ms Edmonds dated 4 April 2024.

[37] Ms Edmonds’ Submissions, email from Ms Hemat-Siraky to Ms Edmonds dated 17 April 2024.

[38] Ms Edmonds’ Submissions, email from Ms Edmonds to Ms Hemat-Siraky dated 18 April 2024.

[39] Ms Edmonds’ Submissions, email from Ms Hemat-Siraky to Ms Edmonds dated 18 April 2024.

[40] Ms Edmonds’ Submissions, email from Ms Edmonds to Ms Hemat-Siraky dated 18 April 2024.

[41] Ms Edmonds’ Submissions, email from Ms Hemat-Siraky to Ms Edmonds dated 18 April 2024.

[42] Ms Edmonds’ Submissions, email from Ms Edmonds to Ms Hemat-Siraky dated 19 April 2024.

[43] Ms Edmonds’ Submissions, email from Ms Hemat-Siraky to Ms Edmonds dated 19 April 2024.

[44] Ms Edmonds’ Submissions, email from Ms Hemat-Siraky to Ms Edmonds dated 19 April 2024.

[45] Ms Edmonds’ Submissions, email from Ms Edmonds to Ms Hemat-Siraky dated 30 April 2024.

[46] Ms Edmonds’ Submissions, email from Ms Hemat-Siraky to Ms Edmonds dated 30 April 2024.

[47] [1984] FCA 378.

[48] [1963] VicRp 79; (1963) VR 586.

[49] (1976) CAR 884.

[50] [1963] VicRp 79; (1963) VR 586.

[51] (1959) 1 WLR 1046.

[52] (1959) 1 WLR 1046 at 1054,

[53] (1971) 1 WLR 361.

[54] (1971) 1 WLR 361 at 382.

[55] (1973) ICR 454.

[56] [2017] FWCFB 5162 at [33].

[57] [1984] FCA 378.

[58] [1995] IRCA 625, 62 IR 200.

[59] Khayam v Navitas English Pty Ltd t/a Navitas English[2017] FWCFB 5162 at [37 citing Mohoazab v Dick Smith Electronics Pty Ltd 62 IR 200 at 205-6.

[60] Khayam v Navitas English Pty Ltd t/a Navitas English[2017] FWCFB 5162 at [75].

[61] [1995] IRCA 645.

[62] Khayam v Navitas English Pty Ltd t/a Navitas English[2017] FWCFB 5162 at [75].

[63] [1984] FCA 378.

[64] Ms Edmonds’ Submissions, email from Ms Edmonds to Ms Hemat-Siraky dated 18 April 2024; Applicant’s ‘Form F45A – Application to vary redundancy pay’, q. 1.1.

[65] Applicant’s ‘Form F45A – Application to vary redundancy pay’, q. 1.4.

[66] Applicant’s ‘Form F45A – Application to vary redundancy pay’, q. 1.2.

[67] Ms Edmonds’ Submissions, email from Ms Edmonds to Ms Hemat-Siraky dated 24 March 2024.

[68] Ms Edmonds’ submissions at [17].

[69] Applicant’s Submissions in Reply at [6].

[70] Applicant’s Submissions in Reply at [7].

[71] Applicant’s Submissions in Reply at [9].

[72] Applicant’s Submissions in Reply at [10].

[73] Applicant’s Submissions in Reply at [8].

[74] Clothing and Allied Trades Union of Australia v Hot Tuna Pty Ltd (1988) 27 IR 226 at [231].

[75] 140 IR 123 at 128.

[76] [2013] FWC 4484 at [14].

[77] Applicant’s Employment Agreement, cl. 8.1.

[78] Applicant’s Employment Agreement, cl. 8.2.

[79] Applicant’s ‘Form F45A – Application to vary redundancy pay’, q. 2.1.

[80] Applicant’s Employment Agreement, cl. 7.1.

[81] Employment Agreement accompanying Offer of Employment for role of Reservations Manager, cl. 6.1 – 6.2.

[82] Applicant’s Submissions at [34]

[83] Applicant’s ‘Form F45A – Application to vary redundancy pay’, q. 1.2.

[84] Applicant’s ‘Form F45A – Application to vary redundancy pay’, q. 1.4.

[85] Applicant’s ‘Form F45A – Application to vary redundancy pay’, q. 1.4.

[86] Applicant’s Employment Agreement, cl.12.

[87] Applicant’s Employment Agreement, cl.15.

[88] Applicant’s Employment Agreement, Schedule 2.

[89] Applicant’s Employment Agreement, Part 6.

[90] Applicant’s Employment Agreement, cl. 30.

[91] Applicant’s Employment Agreement, cl. 23 and 24.

[92] Applicant’s Employment Agreement, cl. 16.

[93] Applicant’s Employment Agreement, Part 3.

[94] Applicant’s Employment Agreement, cl. 9.

[95] Employment Agreement accompanying Offer of Employment for role of Reservations Manager, cl. 9.

[96] Employment Agreement accompanying Offer of Employment for role of Reservations Manager, cl. 12.

[97] Employment Agreement accompanying Offer of Employment for role of Reservations Manager, cl. 16.

[98] Employment Agreement accompanying Offer of Employment for role of Reservations Manager, cl. 17.

[99] Employment Agreement accompanying Offer of Employment for role of Reservations Manager, cl. 18.

[100] Employment Agreement accompanying Offer of Employment for role of Reservations Manager, cl. 19.

[101] Employment Agreement accompanying Offer of Employment for role of Reservations Manager, cl. 20.

[102] Employment Agreement accompanying Offer of Employment for role of Reservations Manager, cl. 21 and 22.

[103] Employment Agreement accompanying Offer of Employment for role of Reservations Manager, cl. 21 and 22.

[104] Employment Agreement accompanying Offer of Employment for role of Reservations Manager, cl. 24.

[105] Ms Edmonds’ Submissions, letter from Andrew Goldsmith dated 29 October 2021.

[106] Ms Edmonds’ Submissions, email from Ms Edmonds to Ms Patterson dated 8 December 2023.

[107] Ms Edmonds’ Submissions, email from Ms Edmonds to Ms Patterson dated 22 December 2023.

[108] Ms Edmonds’ Submissions, email from Ms Patterson to Ms Edmonds dated 22 December 2023.

[109] Ms Edmonds’ Submissions, email from Ms Edmonds to Ms Patterson dated 28 December 2023.

[110] Ms Edmonds’ Submissions at [5].

[111] Ms Edmonds’ Submissions at [6].

[112] Ms Edmonds’ Submissions at [7].

[113] Von Bibra Robina Autovillage Pty Ltd [2007] AIRC 397.

[114] Von Bibra Robina Autovillage Pty Ltd [2007] AIRC 397 at [26].

[115] Applicant’s Submissions in Response at [1].

[116] Von Bibra Robina Autovillage Pty Ltd [2007] AIRC 397.

[117] Von Bibra Robina Autovillage Pty Ltd [2007] AIRC 397 at [27].

[118] Von Bibra Robina Autovillage Pty Ltd [2007] AIRC 397 at [28].

[119] PR032004 [2004] AIRC 287 at [129].

[120] (1984) 8 IR 34 at [73].

[121] PR032004 [2004] AIRC 287 at [133] – [134], [140].

Printed by authority of the Commonwealth Government Printer