Nando's Australia Pty Ltd v Dylan Dharma

[2021] FWC 6024

[2021] FWC 6024

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.120—Redundancy pay

Nando’s Australia Pty Ltd
v
Dylan Dharma
(C2021/6212)

DEPUTY PRESIDENT COLMAN MELBOURNE, 1 OCTOBER 2021

Variation of redundancy pay

[1] This decision concerns one of three related applications made by Nando’s Australia Pty Ltd (company) under s 120(2) of the Fair Work Act 2009 (FW Act) to have the Commission reduce the redundancy entitlements of employees whose positions have become redundant as a result of the closure of the company’s Heatherton restaurant. I have decided to issue separate decisions in each matter. The three decisions are necessarily very similar.

[2] The company’s application in C2021/6212 concerns the redundancy entitlement of Mr Dylan Dharma. Mr Dharma was employed by the company as a part-time ‘Nandoca’ (food and beverage attendant grade 2) from 11 July 2018 until 26 September 2021, when his position became redundant. Because he had more than 3 but fewer than 4 years of service, Mr Dharma is entitled to 7 weeks’ redundancy pay pursuant to s 119. The company asks the Commission to reduce Mr Dharma’s redundancy entitlement to nil because it offered him an alternative role as a Nandoca in another Nando’s restaurant, which Mr Dharma declined. It says that the offer constituted ‘other acceptable employment’ for the purposes of s 120(1)(b)(i).

[3] At a telephone mention on 16 September 2021, I made directions for the company to file and serve submissions in support of its application by 20 September 2021, and for Mr Dharma to file and serve submissions in opposition to the application by 27 September 2021. The company filed a submission. Mr Dharma did not. I advised the parties that I proposed to determine the application on the papers unless either party advised my chambers by 5.00pm on 30 September 2021 that they wished to be heard. Neither party did so.

[4] Section 120 confers on the Commission a discretion to reduce the amount of redundancy pay to which an employee would otherwise have been entitled under s 119 of the FW Act. Section 120(1) states that the section applies if an employee is entitled to be paid an amount of redundancy pay under s 119, and the employer ‘obtains other acceptable employment’ for the employee. These are the jurisdictional facts that must be established before the Commission may exercise its discretion. Section 120(2) then states that the Commission ‘may determine that the amount of redundancy pay is reduced to a specified amount (which may be nil) that the FWC considers appropriate’. If the Commission makes an order under s 120(2), the amount of redundancy pay to which the employee is entitled is the reduced amount specified in the determination (see s 120(3)). The questions for consideration in the present matter are whether the company obtained ‘other acceptable employment’ for Mr Dharma, and if so whether I should exercise my discretion to reduce the amount of Mr Dharma’s redundancy pay.

[5] The factual background is not contentious. On 28 July 2021 the company’s area manager, Mr James Tolan, emailed Mr Dharma a letter advising him that the company had decided to close its Heatherton restaurant, and that his position at the restaurant was no longer needed. The letter stated that the company’s objective was to redeploy Mr Dharma to another Nando’s restaurant. It requested him to complete a redeployment preference form, which asked employees to indicate their three preferred locations for redeployment from among the 38 Nando’s restaurants in Victoria. The letter also stated that in the event that the company was unable to find suitable alternative employment, Mr Dharma would receive a redundancy payment in accordance with the FW Act.

[6] Mr Tolan scheduled an on-line consultation meeting with Mr Dharma for 3 August 2021. The company’s records showed that Mr Dharma did not attend the meeting, and that Mr Tolan made various follow-up calls in order to reschedule the meeting but without success. It recorded that Mr Tolan was eventually able to reach Mr Dharma, and offer him redeployment to the company’s Parkmore restaurant, but that Mr Dharma stated that he would not be continuing to work for the company.

[7] On 17 August 2021, Mr Tolan emailed Mr Dharma a letter formally offering him redeployment to the position of ‘Nandoca’ based at the Nando’s Parkmore store, reporting to the Parkmore ‘patrao’ (supervisor), commencing on 26 September 2021. The position carried the base hourly rate under the Restaurant Industry Award 2020 (Award) for a grade 2 food and beverage attendant, working an average of 16.5 hours a week. These were the same conditions that applied to Mr Dharma’s position at the Heatherton restaurant.

[8] On 26 August 2021, Mr Tolan sent Mr Dharma an email asking whether he would be accepting the offer of redeployment to Parkmore. Later that day Mr Dharma replied, stated that he would ‘not be continuing with Nando’s’.

[9] The company contended that it obtained other acceptable employment for Mr Dharma within the meaning of s 120 of the FW Act. It said that Mr Dharma was offered a position in the same role (Nandoca), at the same level, for the same money, doing the same work, but at a different restaurant, and that Mr Dharma chose not to accept it. It acknowledged that the restaurant was 11km from the Heatherton restaurant, but contended that this was a reasonable distance. The company submitted that it was reasonable for the redundancy entitlement to be reduced to nil.

[10] Although Mr Dharma did not file any submissions, I proceed on the basis that he is opposed to the company’s application.

[11] It is clear that the company obtained other employment for Mr Dharma. It offered him a position at its Parkmore restaurant that was, save for the location, the same as the role at Heatherton. The question then is whether the alternative employment was ‘acceptable’. The fact that Mr Dharma did not accept the alternative role is not determinative of whether the employment was acceptable for the purposes of s 120. ‘Acceptable’ in the context of s 120 is concerned with the adequacy or suitability of the alternative role. The question of whether other employment is acceptable is to be approached objectively. In assessing whether other employment is acceptable it is relevant to consider the differences in work between the new role and the redundant position, as well as any differences in the applicable conditions, including in particular the remuneration and location.

[12] In the present matter, the only difference between the alternative role and the redundant position was its location. It was 11 kilometres from the Heatherton store. Mr Dharma does not contend that this would have required him to travel an unreasonable additional distance to work. Nor does Mr Dharma contend that the alternative role was unsuitable. Evidently Mr Dharma was not interested in alternative roles. However, the question is whether the other employment offered to Mr Dharma by the company was objectively acceptable. I consider that it was. The company obtained for Mr Dharma ‘acceptable other employment’ for the purposes of s 120(1)(b)(i) of the FW Act.

[13] Having established the jurisdictional facts required by s 120(1), I must now consider whether to exercise my discretion to reduce the amount of Mr Dharma’s redundancy pay. In doing so, it is appropriate to balance the conclusion that the company obtained other acceptable employment for Mr Dharma against any considerations that might tell against the exercise of the discretion in this case. I consider that it is fair and reasonable in the present circumstances to reduce the redundancy entitlement to nil. Acceptable alternative employment was offered to Mr Dharma. I do not consider there to be any significant countervailing considerations telling against the exercise of my discretion. Mr Dharma’s employment did not need to end for reason of redundancy. Although his position at Heatherton was made redundant, the company offered him identical work and pay at Parkmore, which he declined.

[14] I am satisfied that the company obtained other acceptable employment for Mr Dharma, and that in all the circumstances I should exercise my discretion to reduce his redundancy pay to nil. An order will be issued separately reflecting this decision.

DEPUTY PRESIDENT

Determined on the papers

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