Mantra Hospitality (Admin) Pty Ltd

[2013] FWC 1063

[2013] FWC 1063

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 120 - Application to vary redundancy pay for other employment or incapacity to pay

Mantra Hospitality (Admin) Pty Ltd
(C2012/6288)

DEPUTY PRESIDENT SAMS SYDNEY, 22 FEBRUARY 2013

Application to vary redundancy pay - outsourcing of housekeeping functions - offer of alternative employment - lower rate of pay - whether offer is acceptable alternative employment - offer rejected - employee entitled to full redundancy benefits.

[1] This decision will determine an application, filed on 14 December 2012 by Mantra Hospitality (Admin) Pty Ltd (‘Mantra’ or the ‘applicant’), pursuant to s 120 of the Fair Work Act 2009 (the ‘Act’). Mantra seeks to vary the redundancy payments which would be otherwise payable to Ms Zaklina Miloskovska consequent upon her termination of employment on 10 December 2012, at the Pacific International Hotel, Bankstown (the ‘Hotel’).

[2] Attempts at settling the dispute in respect to the redundancy payments payable to Ms Miloskovska ultimately proved unsuccessful. Directions were issued for the parties to file evidence in the matter and a hearing was conducted on 12 February 2013. Ms Miloskovska was assisted by her sister, Ms Tatiana Vassilev and a Macedonian interpreter. Mantra was represented, with permission, by Mr C Pollard. Ms Miloskovska provided a chronology of events as she recalled them and gave oral evidence with the assistance of the interpreter. Mr Pollard relied on an affidavit of Mr Godwin Ibe Oparah, the General Manager of the Hotel.

Factual background

[3]

a) Ms Miloskovska was employed by Mantra for 6 ½ years under the terms and conditions of the Hospitality Industry (General) Award 2010 [MA000009].

b) Ms Miloskovska was promoted from the position of Housekeeping Attendant to Housekeeping Supervisor in March 2011. Her award rate of pay (as at 14 December 2012) was $21.00 per hour compared to $17.05 an hour for a Housekeeping Attendant.

c) In the second half of 2012, Mantra made a decision to outsource its housekeeping work to a contract cleaning company, Australian Hospitality Services (AHS).

d) All housekeeping staff were offered ongoing employment with AHS, without loss of continuity or entitlements.

e) Existing employees of Mantra were notified, on 13 November 2012, of the new arrangements which were to commence on 11 December 2012.

f) On 13 November 2012, in a letter signed by Mr Oparah, Ms Miloskovska was offered a full time room Attendant Level 2 position, with a recognition by AHS of her continuous service and accrued leave entitlements. No severance payments were to be paid.

g) However, in an unsigned letter of the same day, Mantra now indicated that a partial redundancy was payable if she chose not to accept the alternative position (Mr Oparah said this second letter should have been dated 4 December 2012).

h) The partial redundancy payment was calculated as $1651.10 being the difference between the $21.00 Supervisor rate and the Housekeeping Attendant rate of $17.05, multiplied by eleven weeks (418 hours) for 6.5 years service.

i) Ms Miloskovska ultimately declined to accept the offer of alternative employment.

j) Ms Miloskovska complained, in writing, on 13 December 2012 as to the calculations of her redundancy pay and pro rata long service leave.

k) Ms Miloskovska was advised on 17 December 2012 that an error had been made in her long service leave calculations, which would be corrected. However, the partial redundancy payment of $1651.10 was reaffirmed.

THE EVIDENCE

For the applicant

Mr Godwin Ibe Oparah

[4] In his written statement, Mr Oparah said that from July to November 2012, the Hotel conducted a review of the Housekeeping department. During that period, Ms Miloskovska told him in the course of a conversation that she no longer wanted the position of Housekeeping Supervisor, as she had been having trouble with some of the Housekeeping Attendants. She wanted to return to a Room Attendant role. He acknowledged her position and told her that Mantra may be able to address this in the future.

[5] Mr Oparah deposed that on 12 November 2012, a meeting was held with all of the Housekeeping staff to discuss the transfer of their employment to AHS. Two representatives of AHS and a Mantra HR representative were present at this meeting. There was no discussion as to whether the new work was full time or part time. After this meeting, Mr Oparah said he had a discussion with Ms Miloskovska in which she said that she ‘would be happy to be just a Room Attendant so she could come to work, clean her rooms and go home and not worry about paper work.’ He told her that the offer of employment with AHS would be as a Room Attendant and she agreed that this was what she wanted. He informed the AHS representatives of this conversation. He also spoke to the HR Department to tell them that Ms Miloskovska would be accepting a position with AHS as a Room Attendant. The next day, Ms Miloskovska was handed a letter from Mantra, which set out the transition arrangements and the status of her ongoing entitlements in relation to her transfer of employment to AHS (see para [3]).

[6] Mr Oparah deposed that on 23 November 2012, Ms Miloskovska approached him and told him that she had now changed her mind and she no longer intended to take the position with AHS because she had had a ‘run in’ with an operations person from AHS. He told her that she should think carefully about not accepting the offer as it would be difficult to find new work in the lead up to Christmas. They agreed to have another talk on the following Monday. On 26 November 2012, when Ms Miloskovska met with Mr Oparah, she told him that she would be accepting a position as a Room Attendant with AHS.

[7] On 30 November 2012, Ms Miloskovska met with Mr Oparah again and now told him that she would not be accepting the position with AHS, as she was not willing to work for $17.05 per hour. Mr Oparah explained that this was the correct rate of pay for a Room Attendant. Ms Miloskovska replied: ‘No, that is for juniors.’ Mr Oparah showed Ms Miloskovska her current contract of employment, which stated that a Housekeeping Attendant’s remuneration was $15.2158 an hour. Ms Miloskovska replied, ‘That was then.’

[8] Mr Oparah and Ms Miloskovska again met on 5 December 2012 to discuss her options. She had requested to be shown the amount of her final payout, if she did not accept a position with AHS. A second advice letter was given to her on this day, along with a spreadsheet showing the calculations for her partial redundancy payments. The spreadsheet showed redundancy to be paid out for 11 weeks (418 hours) at a rate of $3.95 per hour. Mr Oparah explained that this calculation was based on the difference between the Room Attendant rate and that of the Supervisor rate under the Award. This was because she had requested to transfer to the Room Attendant position. Mr Oparah met with Ms Miloskovska, her husband and her daughter on 11 December 2012. At this meeting, Ms Miloskovska said that she had expected more (in redundancy payments), but could not quantify how much more. Her husband described the offer as ‘bullshit’.

[9] In oral evidence, Mr Oparah deposed that he could not recall whether the employees were told at the meeting of 12 November 2012 that their employment status was to be changed to part time. He denied telling Ms Miloskovska that she would no longer be working as a Supervisor or that AHS would be bringing in their own supervisors. He also denied discussing the hourly rate of pay with Ms Miloskovska. He said that he could not recall discussing Ms Miloskovska’s rate of pay with her on 5 December 2012 and they had only discussed her position as a Room Attendant. He further denied that Ms Miloskovska complained at this meeting that she was not being offered what was in the letter of 13 November or what was discussed on that day.

[10] Mr Oparah denied ever telling Ms Miloskovska that he believed she would receive redundancy payments of between seven and nine thousand dollars. He denied discussing final payment amounts with her and could not remember any conversation with her on 7 December 2012. He remembered having a conversation with Ms Miloskovska in his office on 10 December 2012, but said that he could only remember that she was upset and crying and that he had told her, ‘Don’t worry, everything will be okay’. He could not remember discussing the possibility of other positions becoming available at the Hotel.

For the respondent

Ms Zalinka Miloskovska

[11] Ms Miloskovska tendered a two page chronology of events headed ‘Short outline of case.’ She adopted this document as her sworn statement. She claimed that in the meeting held on 12 November 2012, the housekeeping staff were advised that there would be a change of employer and the current employees’ employment status would be changing to part time.

[12] At about 3:00pm on the same day, Mr Oparah met with her and gave her a signed letter (see para [3]). He told her that she would no longer be working as a supervisor as AHS were bringing in their own supervisor. She asked him whether her rate of pay of $21.00 would be maintained if she accepted the position. He told her that it would, but her role was changed. He also told her that her leave entitlements would be transferred to AHS. After this time, she asked Mr Oparah on a daily basis for a printout of her leave entitlements, but this was never provided.

[13] Ms Miloskovska said that on 30 November 2012, ‘Debbie’ from AHS came to the Hotel and handed out job application forms. Her job application referred to her position as a Room Attendant, with an hourly rate of $17.05. She went straight to Mr Oparah to ask why her pay had been reduced from $21.00 per hour. She pointed out that the letter of 13 November 2012 referred to her terms and conditions being maintained. Mr Oparah was unable to tell her why this was the case. He said he would make further inquiries with Jane Law in HR.

[14] On 5 December 2012, when Ms Miloskovska spoke to Mr Oparah again about the hourly rate, he told her that she was a Level 2 in their system and would therefore be paid at a rate of $17.05 per hour. When she asked how this could be so, he said that he could not help her. She said that this was not what had been discussed at the meeting of 13 November 2012. She then asked Mr Oparah for redundancy and said she would leave her job. He replied that ‘was fine’. She asked how much she would receive for 6 ½ years service. He said that he would ask Jane Law and get back to her. Two days later, when she inquired again, Mr Oparah said that he had not heard back from Ms Law, but that he thought it would be between $7,000 and $9,000.

[15] Ms Miloskovska said that on 10 December 2012, she spoke again to Mr Oparah, because she had not accepted a position with AHS and that day was to be her last day of work. He told her not to worry, go home and that he would call her at 3:00pm. He did not do so.

[16] On the following day, she phoned Mr Oparah again. He said he still had not heard anything from Ms Law and he would call her back once he had. At 1:30pm he rang to say that he had received her redundancy calculation in the amount of $1,651.10. When she queried this amount Mr Oparah told her to contact Ms Law in HR if she was not happy. She did so on 13 December 2012 (see para [3]).

[17] On Monday 17 December 2012, Ms Law emailed her back as follows:

‘Thank you for your enquiry regarding clarification of redundancy entitlements.

We have reviewed your current contract and conditions. As advised on Monday 12 November 2012, Breakfree Bankstown engaged AHS Hospitality Group to manage the housekeeping department effective as of Tuesday 11 December 2012. An offer of fulltime employment was made to you by the new employer which you subsequently declined.

As outlined in our correspondence to you on 12 November 2012, if you chose not to accept the position with the new employer, any accrued entitlements would be paid out as of your last working day with Mantra Hospitality Admin being Monday 10 December 2012. As outlined in previous correspondence to you, a partial redundancy would apply paid at the rate difference between the rate of $21.00 per hour and the Level 2 rate of $17.05 per hour. Please find a copy of the calculations again.

...

We believe Mantra Group is in adherence with our award and employment legislation obligations and consider this matter resolved.’

[18] In cross examination, Ms Miloskovska denied that she had asked to step down from the Supervisor position in any conversation with Mr Oparah. Ms Miloskovska reaffirmed that Mr Oparah had told her that her redundancy would be between $7,000 and $9,000. She added that she had not found any alternative employment since her redundancy.

SUBMISSIONS

For the applicant

[19] In written submissions, Mr Pollard said that the outsourcing process entered into by Mantra and AHS resulted in a transfer of employment for those employees of Mantra who accepted an offer of employment from AHS.

[20] Mr Pollard put that Ms Miloskovska’s rate of pay of $21.00 per hour was related to her status as a supervisor, rather than her length of service. Her contract of employment disclosed that she was being paid $15.2158 per hour as a Housekeeping Attendant. A later ‘status form’, indicating that she was promoted to Housekeeping Supervisor fortified this conclusion.

[21] Mr Pollard submitted that the position offered by AHS constituted ‘acceptable alternative employment’. Mr Pollard drew my attention to ss 119-122 of the Act and the case law in respect to ‘acceptable employment’; See: Australian Chamber of Manufactures v Derole Nominees Pty Ltd (1990) 140 IR 123; [1990] AIRC 980 (‘Derole Nominees’) and Re: Von Bibra Robina Autovillage Pty Ltd [2007] AIRC 397.

[22] Mr Pollard concluded that the following factors contributed to a finding that the role offered by AHS constituted ‘acceptable employment’:

• the work to be performed for AHS in the role offered was identical to the work she had already performed, without the supervisory obligations;

• there was no change to the location where work was to be performed;

• the pay arrangements for the role with AHS conformed with award requirements;

• Ms Miloskovska requested to be moved to a lower classification; and

• there was no question that Ms Miloskovska was able to perform the work offered to her.

[23] In oral submissions, Mr Pollard said that Mr Oparah stood to gain nothing from the evidence that he gave to the Commission and he had no reason to lie. His evidence demonstrated that Ms Miloskovska had told him that she did not want to transfer to AHS as a Supervisor.

[24] Mr Pollard further submitted that where an employee asks for a job in the course of a transfer of employment, then he or she cannot reject it if it complies with award requirements. From 5 December 2012, Ms Miloskovska was fully informed of what her redundancy entitlements would be if she rejected the alternative role with the incoming company. In these circumstances, the employer would not have been required to comply with the transfer to lower paid duties provisions in the Act and its redundancy obligations would be zero. Nevertheless, Mantra had paid a partial payment in recognition of her service and her value as an employee.

For the respondent

[25] Ms Vassilev made some brief oral statements on behalf of her sister. She said that, to her knowledge, none of what had been said by Mantra’s representatives was true and that Ms Miloskovska had not been treated fairly. In light of her mortgage commitments, a drop from $21 to $17 per hour was a big difference. Her sister had been very upset, stressed and her health had suffered. Ms Vassilev noted that Ms Miloskovska was paid $21 per hour up until her last day of employment.

[26] In terms of the evidence of Mr Oparah, Ms Vassilev noted that it was her sister’s word against his, as they had been alone in the office at the time these meetings took place. She noted that there was no paperwork given to her sister indicating that she would be ‘stepping down’ from her position. If Ms Miloskovska’s pay was to have her hourly rates reduced, someone should have sat down with her and explained this outcome, especially in light of the fact that she does not understand much English. It would have been open for Mantra to find an interpreter to explain what was being offered.

CONSIDERATION

Statutory provisions

[27] The relevant statutory provisions to be applied by the Commission in this case are found at ss 119 - 122 of the Act as follows:

119 Redundancy pay

Entitlement to redundancy pay

(1) An employee is entitled to be paid redundancy pay by the employer if the employee’s employment is terminated:

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

(b) because of the insolvency or bankruptcy of the employer.

Amount of redundancy pay

(2) The amount of the redundancy pay equals the total amount payable to the employee for the redundancy pay period worked out using the following table at the employee’s base rate of pay for his or her ordinary hours of work:

Redundancy pay period
Employee’s period of continuous service with the employer on termination	Redundancy pay period
1	At least 1 year but less than 2 years	4 weeks
2	At least 2 years but less than 2 years	6 weeks
3	At least 3 years but less than 4 years	7 weeks
4	At least 4 years but less than 5 years	8 weeks
5	At least 5 years but less than 6 years	10 weeks
6	At least 6 years but less than 7 years	11 weeks
7	At least 7 years but less than 8 years	13 weeks
8	At least 8 years but less than 9 years	14 weeks
9	At least 9 years but less than 10 years	16 weeks
10	At least 10 years	12 weeks

120 Variation of redundancy pay for other employment or incapacity to pay

(1) This section applies if:

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

(b) the employer:

(i) obtains other acceptable employment for the employee; or

(ii) cannot pay the amount.

(2) On application by the employer, FWA may determine that the amount of redundancy pay is reduced to a specified amount (which may be nil) that FWA considers appropriate.

(3) The amount of redundancy pay to which the employee is entitled under section 119 is the reduced amount specified in the determination.

121 Exclusions from obligation to pay redundancy pay

(1) Section 119 does not apply to the termination of an employee’s employment if, immediately before the time of the termination, or at the time when the person was given notice of the termination as described in subsection 117(1) (whichever happened first):

(a) the employee’s period of continuous service with the employer is less than 12 months; or

(b) the employer is a small business employer.

(2) A modern award may include a term specifying other situations in which section 119 does not apply to the termination of an employee’s employment.

(3) If a modern award that is in operation includes such a term (the award term), an enterprise agreement may:

(a) incorporate the award term by reference (and as in force from time to time) into the enterprise agreement; and

(b) provide that the incorporated term covers some or all of the employees who are also covered by the award term.

122 Transfer of employment situations that affect the obligation to pay redundancy pay

Transfer of employment situation in which employer may decide not to recognise employee’s service with first employer

(1) Subsection 22(5) does not apply (for the purpose of this Subdivision) to a transfer of employment between non-associated entities in relation to an employee if the second employer decides not to recognise the employee’s service with the first employer (for the purpose of this Subdivision).

Employee is not entitled to redundancy pay if service with first employer counts as service with second employer

(2) If subsection 22(5) applies (for the purpose of this Subdivision) to a transfer of employment in relation to an employee, the employee is not entitled to redundancy pay under section 119 in relation to the termination of his or her employment with the first employer.

Employee not entitled to redundancy pay if refuses employment in certain circumstances

(3) An employee is not entitled to redundancy pay under section 119 in relation to the termination of his or her employment with an employer (the first employer) if:

(a) the employee rejects an offer of employment made by another employer (the second employer) that:

(i) is on terms and conditions substantially similar to, and, considered on an overall basis, no less favourable than, the employee’s terms and conditions of employment with the first employer immediately before the termination; and

(ii) recognises the employee’s service with the first employer, for the purpose of this Subdivision; and

(b) had the employee accepted the offer, there would have been a transfer of employment in relation to the employee.

(4) If FWA is satisfied that subsection (3) operates unfairly to the employee, FWA may order the first employer to pay the employee a specified amount of redundancy pay (not exceeding the amount that would be payable but for subsection (3)) that FWA considers appropriate. The first employer must pay the employee that amount of redundancy pay.

The legal question

[28] In my view, it is irrelevant that Ms Miloksovksa may have wanted to relinquish her supervising position and revert to a housekeeping role (my emphasis). The fact is, she never did. Accordingly, it is unnecessary to resolve the evidentiary conflict between Mr Oparah and Ms Miloskovska as to whether there were any conversations to that effect. However, I note there is no evidence of any letter, notation, diary note, contract or agreement that she intended to do so; let alone that her intention had been consummated. Mr Oparah’s evidence is not corroborated by anyone. Even accepting Mr Oparah’s evidence at its highest, he said he told her ‘that this was something we could look at doing in the future.’

[29] The legal question can only be answered by determining what work Ms Miloskovska was actually performing and what she was being paid at the point the offer of alternate employment with the outsourcing company was made. In my judgement, this notion flows naturally from the use of the words in s 119(2), that redundancy payments are to be calculated ‘on the employee’s base rate of pay for his or her ordinary hours of work’. I am fortified to this conclusion by the language of s 122(3)(a)(i) as to whether the terms and conditions were no less favourable than the employee’s terms and conditions ‘immediately before the termination’.

[30] As to the above question, there is absolutely no doubt that at the relevant time (her last pay from Mantra), Ms Miloskovska was a Housekeeping Supervisor and was being paid $21.00 an hour (see her latest payslips). This was the base rate of pay for her ordinary hours of work. I agree with Mr Pollard that her rate of pay reflected her role, not her length of service, but I otherwise do not understand the point he was making. Length of service only becomes relevant to the calculation of redundancy pay and not to whether the entitlement actually arises under the Act. To my mind, this factual context entirely resolves the true legal position of Ms Miloskovska in the redundancy context under ss 120-122 of the Act. When viewed in this light, much of Mantra’s remaining arguments fall away. However, in deference to the well articulated case of Mr Pollard, I will make some further obiter observations and findings as to whether the applicant was offered ‘acceptable employment’ and whether ss 120 and 122 have any work to do in this case.

[31] Let me say from the outset that I have no truck with an employee who is faced with redundancy and is offered comparable alternative employment, but refuses it because he/she would rather take a redundancy payout. In my opinion, that is not the underlying intention or social and industrial purpose of redundancy benefits. Nor do I think it was the intention of the legislature when enacting s 120 of the Act. It goes without saying, that in many cases, the existence of generous redundancy payouts, coupled with voluntary redundancy, actually serves as a disincentive to the preservation of jobs.

[32] On the other hand, the prospect of a forced redundancy is invariably a pernicious one, particularly for an employee of many years of unblemished and hard working service. It is often a time of great distress, uncertainty and confusion. This is even more so in the case of an employee with limited English skills and few re-employment prospects.

[33] Added to these comments is the question I asked Ms Miloskovska during the hearing, to the effect of: Given her personal and family circumstances, surely a job paying $17.00 an hour with the new contractor, without loss of continuity or accrued benefits, was better than no job at all?

Meaning of 'acceptable employment’

[34] In respect to the definition of ‘acceptable employment’ in s 120, this section must be read in conjunction with s 122(3), which defines when an employee is not entitled to redundancy pay from the first employer (Mantra) in circumstances where the employee refuses ‘acceptable employment’ with a second employer (AHS). There is no doubt that the applicant rejected an offer of employment with AHS which recognised her service with Mantra (s 122(3)(a)(ii)), and which would have constituted a transfer of employment. The only question remaining is whether the offer was one which was on terms and conditions no less favourable than the terms and conditions she enjoyed immediately before her termination of employment.

[35] Mr Pollard correctly cited the Full Bench authority in Australian Chamber of Manufactures v Derole Nominees Pty Ltd (1990) 140 IR 123; [1990] AIRC 980 (‘Derole Nominees’)as being applicable to this matter. I observe, in passing, that the term ‘comparable alternative employment’ is often interchanged with ‘acceptable alternative employment’. I view this expression as a difference without a distinction.

[36] In Derole Nominees, the Full Bench of the Australian Industrial Relations Commission (AIRC) found:

‘What constitutes “acceptable alternative employment” is a matter to be determined, as we have said, on an objective basis. Alternative employment accepted by the employee (and its corollary, alternative employment acceptable to the employee) cannot be an appropriate application of the words because that meaning would give an employee an unreasonable and uncontrollable opportunity to reject the new employment in order to receive redundancy pay; the exemption provision would be without practical effect.

Yet, the use of the qualification “acceptable” is a clear indication that it is not any employment which complies but that which meets the relevant standard. In our opinion there are obvious elements of such a standard including the work being of like nature; the location being not unreasonably distant; the pay arrangements complying with award requirements. There will probably be others.’

[37] The principles referred to in Derole Nominees have their origin in the AIRC Full Bench decision in Re: Termination, Change and Redundancy Case (1984) 8 IR 34 where it was said at 75:

‘We do not wish to prevent an employer making an application to be exempted from the general prescription pursuant to this decision in cases where an employer obtains acceptable employment for an employee but we would point out that, in our decision, severance payments are not made for the purpose of assisting employees to find alternative employment. Where such an application was made it would be important to consider whether previous service with the previous employer was recognized as service with the new employer.’

[38] Later, in Clothing & Allied Trades Union of Australia v Hot Tuna Pty Ltd (1988) 27 IR 226 (‘Hot Tuna’), a Full Bench of the Australian Conciliation and Arbitration Commission said at pp 230-231:

‘We do not propose to repeat here the thoroughly detailed argument presented by counsel for the union. A considerable part of that case was devoted to questions of onus and to supporting the proposition that the test of acceptability of the alternative employment is an objective one involving a consideration of such matters as pay levels, hours of work, seniority, fringe benefits, workload and speed, job security and other matters. It was argued that the failure of the employer to adduce evidence of such matters caused the company to fail to make out a case for an exemption. We have no doubt that there is an onus on the employer invoking cl 51(c) and that matters of the kind referred to by the union may be relevant in assessing the position in a particular case. We do not believe it to be necessary to make that examination in every case. Where an employee has accepted alternative employment in circumstances as those here, then in the absence of positive evidence going to the unacceptability of that employment, including unacceptable features of it, then the Commission is entitled to hold the employment as an acceptable alternative and relieve the employer of the obligation under cl 51(c) of the award. In this case, the evidence before the commissioner was that the five employees in question were given notice of the transfer with access to management to raise any difficulties involved and that there was no resort to this access.’

[39] In Von Bibra Robina Autovillage Pty Ltd [2007] AIRC 397, Richards SDP at paras [27]-[27] adopted the principles in Derole Nominees and said:

‘[26] In contrast, the objective test of acceptability appears to be that the alternative work bears a sufficient comparability to the original work and is not unreasonably removed from the employee’s original duties, skills set, qualifications, experience and other terms and conditions of employment. The test is not whether or not the employee is capable of carrying out the new employment as such, it is whether there is sufficient correlation between the relevant indicia of the current work and the alternative employment as proposed.

[27] In the current circumstances, the objective test demonstrates that the alternative employment is too far removed from the former position in terms of remuneration arrangements and key functions and skills to be considered to be acceptable alternative employment in the sense contemplated by the Full Bench in Re:Derole.’

[40] Even if I be wrong about my earlier finding as to Ms Miloskovska’s circumstances ‘immediately before the termination’, I am satisfied that the offer of a Housekeeping Attendant role to a person who had been a supervisor for two continuous years, does not meet the test of ‘acceptable employment’, as contemplated by the relevant authorities and the statutory provisions. I respectfully agree with SDP Richards in supra above, that the test is not whether the employee can carry out the new employment. To the extent Mantra’s submissions relied on Ms Miloskovska being able to perform the work of a Housekeeping Attendant (which undoubtedly she could), they are rejected. There can be no doubt that Ms Miloskovska would suffer a significant cut in salary as a result of accepting the offer. Such an outcome could not be characterised as being ‘acceptable employment’. She was perfectly entitled to reject the offer. She should be paid her full redundancy entitlement of 11 weeks pay (418 hours) at $21.00 an hour, less the amount already paid of $1,651.10, ie: $8,778.00 - $1,651.10 = $7,126.90.

[41] It follows that Mantra’s application must be dismissed and I issue an order to that effect.

DEPUTY PRESIDENT

Appearances:

C Pollard, for the applicant

T Vassilev, for the respondent

Hearing details:

2013

Sydney/Brisbane:

8 January, 12 February.

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