Nando's Australia Pty Ltd v Ravneet Sandhu

[2021] FWC 6021

[2021] FWC 6021

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.120—Redundancy pay

Nando’s Australia Pty Ltd
v
Ravneet Sandhu
(C2021/6211)

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 C2021/6211 concerns the redundancy entitlement of Ms Ravneet Sandhu. Ms Sandhu was employed by the company as a part-time ‘Nandoca’ (food and beverage attendant grade 2) from 23 July 2018 until 26 September 2021, when her position became redundant. Because she had more than 3 but fewer than 4 years of service, Ms Sandhu is entitled to 7 weeks’ redundancy pay pursuant to s 119. The company asks the Commission to reduce Ms Sandhu’s redundancy entitlement to nil because it offered her an alternative role as a Nandoca in another Nando’s restaurant, which Ms Sandhu 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 Ms Sandhu to file and serve submissions in opposition to the application by 27 September 2021. Brief submissions were filed. 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 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. The questions for consideration in the present matter are whether the company obtained ‘other acceptable employment’ for Ms Sandhu, and if so whether I should exercise my discretion to reduce the amount of Ms Sandhu’s redundancy pay.

[5] The factual background is not contentious. On 3 August 2021 the company’s area manager, Mr James Tolan, emailed Ms Sandhu a letter advising her that the company had decided to close its Heatherton restaurant, and that her position at the restaurant was no longer needed. The letter stated that the company’s objective was to redeploy Ms Sandhu to another Nando’s restaurant. It requested her 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, Ms Sandhu would receive a redundancy payment in accordance with the FW Act.

[6] The following day, Ms Sandhu participated in an on-line consultation meeting with Mr Tolan and Ms Grace MacKay. The record of that meeting submitted to the Commission by the company states that Ms Sandhu did not provide a redeployment preference form, and that she told Mr Tolan and Ms MacKay that she did not want to be redeployed because she was finishing her studies and moving into the legal field.

[7] On 6 August 2021, Mr Tolan emailed to Ms Sandhu a letter offering her redeployment to the position of ‘Nandoca’ based at the Nando’s Chadstone store, reporting to the Chadstone ‘patrao’ (supervisor), commencing on 1 November 2021. The position carried the base hourly rate under the Restaurant Industry Award 2020 (Award) for a grade 2 food and beverage attendant and entailed an average of 13.75 hours a week. These were the same conditions that applied to Ms Sandhu’s position at the Heatherton restaurant.

[8] On 17 August 2021, Mr Tolan emailed Ms Sandhu a letter advising her that the closure of the Heatherton restaurant had been brought forward to 26 September 2021, and that the redeployment position at Chadstone would commence on 27 September 2021. Later that day, Ms Sandhu replied to Mr Tolan, stating that she would be ‘choosing the pathway of redundancy, and not pursuing the opportunity at Chadstone’.

[9] The company contended that it obtained other acceptable employment for Ms Sandhu because it offered her 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 Ms Sandhu chose not to accept it. The company acknowledged that the restaurant was 8.5km 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] Ms Sandhu submitted that she had refused the relocation option because, despite reassurances that the new team would be welcoming, she did not feel comfortable moving to a different team environment. Ms Sandhu said that she felt pressure to relocate and told the company that she would resign if necessary. She said that when the redundancy date was brought forward, she had less time to seek out other opportunities for work. Ms Sandhu said that she did not want to invest time re-establishing herself at another restaurant and chose instead to progress her career.

[11] It is clear that the company obtained other employment for Ms Sandhu. It offered her a position at its Chadstone store 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 Ms Sandhu 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 8.5 kilometres from the Heatherton store. Ms Sandhu does not contend that this would have required her to travel an unreasonable additional distance to work. Nor does Ms Sandhu contend that the alternative role was unsuitable. I appreciate that Ms Sandhu was not interested in alternative roles. However, the question is whether the other employment offered to Ms Sandhu by the company was objectively acceptable. I consider that it was. The company obtained for Ms Sandhu ‘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 Ms Sandhu’s redundancy pay. In doing so, it is appropriate to balance the conclusion that the company obtained other acceptable employment for Ms Sandhu against any considerations that might tell against the exercise of the discretion. 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 Ms Sandhu. I do not consider there to be any significant countervailing considerations telling against the exercise of my discretion. Ms Sandhu’s employment did not need to end for reason of redundancy. Although her position at Heatherton was made redundant, the company offered her identical work and pay at Chadstone, which she declined.

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

DEPUTY PRESIDENT

Determined on the papers

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