Nortel Pty Ltd
[2019] FWC 1084
•14 MARCH 2019
| [2019] FWC 1084 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.120 - Application to vary redundancy pay for other employment or incapacity to pay
Nortel Pty Ltd
(C2019/13)
COMMISSIONER HAMPTON | ADELAIDE, 14 MARCH 2019 |
Application for variation of redundancy pay – position redundant and employee dismissed on that basis – NES redundancy payments due - whether acceptable alternative employment obtained – employee offered continuing employment with applicant employer in different roles – approach to acceptable employment considered and applied – one of two alternative positions objectively acceptable – discretion exercised to reduce the redundancy payments.
1. Background and case outline
[1] Nortel Pty Ltd (Nortel) has made application pursuant to s.120 of the Fair Work Act 2009 (the FW Act) seeking a reduction in the redundancy pay otherwise due to its employee; Ms Melissa Westover.
[2] Nortel conducts retail outlets on behalf of Telstra from a small administrative head office and at 5 retail outlets in the suburbs of Adelaide.
[3] It is common ground that Ms Westover has now been made redundant 1 and been offered alternative employment in a number of positions with Nortel.
[4] At all relevant times the employment of Ms Westover was covered by the General Retail Award 2010 (the Award). The Award provides that the redundancy entitlements are as established by the National Employment Standards (NES) of the FW Act.
[5] The application therefore relates to the redundancy payments provided by s.119 of the FW Act, which are established in the following terms:
“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.
Note: Sections 121, 122 and 123 describe situations in which the employee does not have this entitlement.”
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 3 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 |
[6] The application has been made under s.120 of the FW Act which provides as follows:
“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, the FWC may determine that the amount of redundancy pay is reduced to a specified amount (which may be nil) that the FWC 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.”
[7] Ms Westover has been employed at Nortel for 7 years (including a period with a previous employer where the business was transferred to Nortel) and during that time has performed different roles. Initially Ms Westover had been engaged in sales roles based in two of Nortel’s retail sales shops; being Munno Para and Elizabeth in the northern suburbs of Adelaide. This included undertaking the role of Assistant Store Manager. In January 2015, Ms Westover transferred into the role of Customer Service Champion (the CS Champion role) but also undertook the additional role of Administration Officer from time to time. The move to the CS Champion role took place in the context of Ms Westover’s concerns about the pressure associated with sales and an offer to her to move to another business. The CS Champion role was undertaken in an administration area of the Munno Para store and also involved some support for the retail sales work during busy period or times of staff shortages, but was not itself a sales role. Immediately prior to commencing annual leave in December 2016, and then taking 12 months unpaid parental leave commencing January 2017, the CS Champion role was relocated to a dedicated (separate) administration office, for a period of approximately one month.
[8] Ms Westover’s parental leave was subsequently extended for a further 12 months by agreement in circumstances outlined below and was due to conclude in January 2019.
[9] In May 2017, Nortel announced a significant workplace change. This change had the effect that Ms Westover’s position at Nortel would be made redundant as part of the outsourcing of Nortel’s administration department. Given Ms Westover’s absence from the workplace at the time, Nortel appropriately advised her of the announcement and discussed the consequences including possible future roles. No alternative role was agreed at that point but it was resolved that Ms Westover would continue to be employed and continue her parental leave. Further, as a result of those discussions and a later exchange, Nortel offered a new role in the form of the following return to work guarantee:
“RETURN TO WORK GUARANTEE
Further to your conversations with Stephen Keens on Tuesday 11 December 2018, we would like to confirm that as per the regulations in the Fair Work Act, we are guaranteeing you a position the same or similar to that which your performed prior to taking leave.
We are expecting you back to work on the 7 January 2018. We would like you to return to a full-time role of Customer Advisor, working from the Elizabeth Store. There will be no change in your remuneration, hours of work, or days of work.
You have previously performed the duties of a Customer Advisor and have been successful in that role for the majority of your active employment with us and have the skills and capabilities to perform the role. We also deem the role to afford the same level or responsibility, and status.
Please confirm to me in writing that you intend to return to work on the 7th January 2019 in the position outlined above by Friday 21 December 2018. If your intentions are to not to return in this position, please let me know by the same date.” 2
[10] Ms Westover declined this proposal on 19 December 2018. On 18 January 2019 a further offer was made by Nortel in the following form:
“ALTERNATIVE EMPLOYMENT – PART TIME POSITION
Further to our conversation held with Commissioner Hampton on Tuesday 14 January, I have spoken to Stephen Keens regarding your concerns in returning to a Full-time Customer Advisor role.
I am pleased to be able to inform you that we are happy to offer you a role as an Effective Floor Manager (EFM) in a part-time capacity. As you are aware, the EFM position is a customer service focused role which would see you greeting customers to our retail stores, assisting with enquiries, identifying opportunities and directing the customer to the relevant Customer Advisor. I have attached the Position Description which further clarifies the position requirements.
This role would require you to work between 25 to 35 hours per week across our Elizabeth and Munno Para stores on a rotating roster. This is to allow for effective rostering across our team.
In this role, you will not have a reduction in your hourly rate and have the opportunities to earn any relevant penalty rates that may be applicable.
Are you available for a phone call on Monday at 10am to discuss the contents of this letter allowing you the weekend to consider the above? If not, please let me know a suitable time that we can schedule a call prior to our teleconference on Tuesday 22 January.” 3
[11] This offer was subsequently rejected by Ms Westover on grounds that I will outline shortly.
[12] There is no dispute that Ms Westover’s former position has been made redundant; that is, it is agreed by the parties that Nortel no longer requires the position of CS Champion to be performed by anyone. There is also no dispute between the parties that Ms Westover is entitled to a redundancy payment as a result of s.119 of the FW Act. It is apparent that the entitlements under s.119 are conditional upon the employee having been terminated at the employer’s initiative on the basis of the redundancy. This has also now occurred.
[13] Nortel contends that it has obtained “other acceptable employment” for Ms Westover within its own business and as a result, it seeks that the Commission exercise its discretion under s.120(1)(b)(i) of the FW Act to reduce the redundancy amount to nil. Nortel does not contend that it cannot pay the redundancy payment and as a result does not seek to rely upon s.120(1)(b)(ii) of the FW Act.
[14] Ms Westover disputes that either of the alternative positions constitute “other acceptable employment” and contends that the roles are not comparable or suitable due to the differences in the nature of the work, their location, and some of the employment arrangements which may apply to the new role.
[15] This matter was the subject to telephone conferences on 15 January 2019 and 22 January 2019 and at the conclusion of the second conference, the parties requested that the Commission determine the matter based upon written submissions and evidence. Neither Nortel nor Ms Westover subsequently put written submissions before the Commission, both instead opted to provide statutory declarations. After reviewing the limited material before me, I considered that a number of issues required that the parties be given an opportunity to make further submissions and to challenge the competing evidence.
[16] A final conference was conducted on 6 March 2019 for that purpose. The parties confirmed at that time that they did not seek to lead further evidence or challenge (by way of cross-examination) the evidence of the other party. Both parties did however make final submissions and respond to questions from the Commission about the issues arising in the matter.
2. The case advanced by Nortel
[17] Nortel relied upon Statutory Declarations from the following:
• Mr Stephen Keens, Director of Nortel 4 – about the nature of the business and the roles offered to Ms Westover and discussions between the two of them in the context of the redundancy and the alternative positions; and
• Ms Gemma Hedges, Store Manager of Nortel’s Elizabeth store and former Manager of Ms Westover 5 – about Ms Westover’s role as the CS Champion, including assistance to the retail floor and Ms Westover’s capacity to undertake sales roles.
[18] Nortel contends that both the New CA position and the EFM position were acceptable alternative positions on the following grounds:
• Ms Westover had previously undertaken sales roles and both positions were similar in nature to the CS Champion role and the previous sales roles;
• For all but a few weeks, the previous roles had been undertaken in a retail environment;
• The New CA position involved the same remuneration and working hours as the CS Champion role with the capacity to earn more remuneration;
• When Ms Westover indicated that she could only return on part-time duties, a part-time EFM role was created that was very similar in nature to the CA Champion position;
• The EFM position could be undertaken without the rotating rosters and would be remunerated at the former level, well beyond that otherwise applicable and has simply been rejected by Ms Westover without exploring the options;
• The retained administrative employee was given a position when she returned from parental leave earlier than Ms Westover and a new reception position was a junior role paid well below Ms Westover’s remuneration; and
• Nortel did not accept that Ms Westover was unable to undertake either position in that they were not aware of any “stress” issue and the EFM role could be undertaken largely from a stool that was now available in each store.
[19] Nortel submits that the redundancy payment should be reduced to nil given the provision of other acceptable employment.
3. The case advanced by Ms Westover
[20] Ms Westover provided a Statutory Declaration 6 in support of her position along with a medical certificate.
[21] Ms Westover contends that the Nortel positions are not acceptable alternate employment for the following reasons:
• There is a fundamental difference between the CS Champion role (and Administration Officer) and the in-store sales positions being proposed. Those differences included working under the pressure of sales targets which were reinforced by disciplinary action if not achieved;
• The sales roles were also a step backwards having previously acted as an Assistant Manager in one of the stores concerned;
• Anxiety issues were associated with her move away from a sales role and she had declined the new roles as she was unwilling to work again in that environment;
• She was not physically able to stand or walk for long periods of time due to medical reasons set out in a medical certificate;
• The full-time nature of the new CA position created difficulties due to her caring responsibilities and she had a right to request part-time work on her return from parental leave;
• The working of any rotating rosters required of the EFM position and the required hours of work were different from her former position and not appropriate as a result of her caring responsibilities; and
• Working between stores was difficult because she did not drive a car and would need to handle drop off at child care.
[22] Ms Westover also contends that other employees in administration roles, with less service, had been offered redundancies without alternative positions and this was unfair and failed to recognise her contribution to the business. Further, the retention of some other administration roles that were also not offered was unreasonable.
[23] Ms Westover seeks the full payment of the statutory redundancy entitlements and, in effect, that the application be dismissed.
4. The circumstances of the parties and the alternative job positions proposed
[24] In order to determine this matter it is appropriate to consider the present circumstances of the parties, the previous roles undertaken by Ms Westover, and the nature of the two roles offered by Nortel.
[25] Nortel outsourced its sales and Telstra systems administrative function and retained only a small internal administration role. This includes one part-time position provided to an employee who returned from parental leave prior to Ms Westover and a newly engaged junior receptionist.
[26] The business is a retail sales operation and the positions that it has available are in that environment. The Munno Para and Elizabeth stores are in relatively close proximity, being located on Main North Road approximately 4.5 kilometres apart. These centres are also relatively close to Ms Westover’s residence and both are likely to be accessible by the same bus route. The location of the stores and being directed to work at one store over the other is unlikely, of itself, to impose an unreasonable travel burden.
[27] The retail stores generally operate on a rotating roster system where employees work on all days of the week, including on weekends.
[28] Ms Westover is the primary carer of her child. As confirmed in the medical certificate Ms Westover also has “difficulty standing on her feet or walking for long periods due to a medical condition which causes anxiety and pain.” 7 There is no detail of that medical condition or the nature of the anxiety referred to in the material before the Commission. Ms Westover has indicated that she sought to leave the in-store sales environment in October 2014, at least partially, on the basis of “stress”.
[29] Ms Westover does not drive but had previously worked at both the Munno Para and Elizabeth stores. On any return to work, some childcare arrangements would need to be made and this is likely to include the need to drop off and collect her child from childcare.
[30] I turn to the previous positions held by Ms Westover.
Customer Advisor (Retail) (CA Retail) and other in- store sales roles
• Performed by Ms Westover for approximately 3 years;
• Customer facing role, liaising with both existing and potential customers;
• Subject to Key Performance Indicators (KPIs), including sales and financial results, customer satisfaction, business processes and teamwork targets;
• Key duties included maintenance of high level customer service, building of consumer and business customer relationships, provision of assistance to consumers and colleagues as required, and follow sales process to meet sales targets.
• Sales targets;
• Full time role working through a rotating roster including weekends;
• Remuneration based upon set hourly rate plus commission-type payments; and
• Reporting to Retail Store Manager.
Customer Service Champion (CS Champion) and Administration Officer
• Performed by Ms Westover for approximately 2 years before commencing parental leave in January 2017;
• Full-time position, originally located as part of the Munno Para store and later at another location;
• Customer service role responsible accountable for managing and maintaining high levels of customer service across all stores;
• Required to regularly report sales discrepancies to Store Manager and Training Manager;
• Responsible for maintaining social media presence and activities for the business;
• Performed Monday to Friday with no weekend work;
• Subject to KPIs, covering case resolution, customer follow-up, customer service, auditing and social media targets;
• Not a sales role but assisted to covers salespersons from time to time during the period when it was located in store;
• Remuneration of $60,000 per annum with no sales targets or commission.
[31] In essence, two alternative positions have been proposed by Nortel and both are relied upon for present purposes. Based upon the evidence, those positions and their general parameters are as follows:
Full-time Customer Advisor (new CA position):
• Offered in December 2018 as part of the return to work guarantee;
• Full-time role based at the Elizabeth Store;
• Sales role dealing directly with customers with sales targets;
• Same working hours and roster arrangements (same hours and days) as the former ACS Champion role;
• Same level of remuneration as the CS Champion role ($60,000 per annum) with the potential to earn additional commission-type payments; and
• Reporting to the Store Manager.
Part-time Effective Floor Manager (EFM position):
• Offered in mid-January 2018 following discussions in the Commission;
• Part-time role (0.6 to 0.8 FTE – 25 to 35 hours per week) based at the Elizabeth and Munno Para stores;
• Customer services role with emphasis upon greeting customers, identifying opportunities for cross-selling of Telstra products and maintaining internal databases;
• No direct sales targets but KPIs associated with customer satisfaction and service;
• Nominally working hours would be undertaken through a rotating roster that would involve weekends and evenings, however Nortel offered to have the position operate Monday to Friday if requested;
• Same level of remuneration as the CS Champion role ($60,000 per annum) with the potential to earn additional payments from penalty rates if the additional hours were worked; and
• Reporting to the Store Manager at each store.
5. Did Nortel obtain acceptable alternative employment for Ms Westover?
[32] In order to determine this question, it is necessary to consider both the appropriate approach to be taken by the Commission to s.120 of the FW Act and the nature of the alternative positions in the context of these parties.
[33] The historical context for the nature of the provisions that are now found in s.120 of the FW Act is summarised by the Full Bench of the Australian Industrial Relations Commission in Australian Chamber of Manufacturers and Derole Nominees Pty Ltd - Clothing Trades Award 19828 (Derole) in the following terms:
“
“Obtains”
This term originates from the first decision in the Termination, Change and Redundancy Case where the Full Bench said:
“Two particular instances, which the employers argued might warrant an application for relief from the obligation to pay the general prescription, which were brought to our attention in the proceedings were when an employer obtains acceptable alternative employment for the employee, and where employees receive the benefit of superannuation schemes on retrenchment.
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 alternative 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.”
The word “obtains” does not appear in its context to mean actually obtain in the fullest sense possible. In circumstances like those occurring at the company one employer is incapable in law of effecting a contract of employment between his employee and another employer whether by assignment or otherwise; the creation of the legal relationship of master and servant depends on a mutuality being arrived at between the individual and the incoming employer. Therefore, the pursuit of alternative employment by the outgoing employer cannot be expected, by reason of itself alone, to produce new employment; there will usually and perhaps always remain the opportunity for the incoming employer, and the employee, to disagree as to matters such as terms of employment, suitability of the job to the employee and vice versa so that alternative employment may not eventuate.
It follows that “obtain” must be given some lesser meaning. The Shorter Oxford Dictionary (third edition, revised) provides as its relevant meaning, the definition of “obtain” as “to procure or gain, as the result of purpose and effort”. It seems to us that meaning is of assistance here; that is, the employer by purpose and effort may establish an opportunity which suits the employee and which crystallises as alternative employment of an acceptable kind.
This approach is supported if the passages quoted above from the Termination, Change and Redundancy Case are read in conjunction with what was said under the heading “assistance in seeking alternative employment”. There the Commission records the ACTU objective of achieving award provisions “designed to ensure that the employer assists the employee to find alternative employment”.
Reliance was placed by the ACTU on a decision of the South Australian Industrial Commission in the Milk Processing and Cheese Etc Manufacturing Case:
“where it was decided that there should be included in any detailed prescription on redundancy an obligation on the employer actively to offer, or to make reasonable endeavours to procure, suitable alternative employment for redundant employees.”
Dealing with the circumstances in which the general prescription the Full Bench was awarding might be departed from, the decision in the Termination, Change and Redundancy Case indicates that particular regard was paid to, inter alia, the S.A. Milk Processing and Cheese Etc. Manufacturing decision. Viewed in this way it will be seen that the intention is not to impose an absolute test on the employer’s ability to “obtain” alternative employment but rather it refers to action which causes acceptable alternative employment to become available to the redundant employee. The employer must be a strong, moving force towards the creation of the available opportunity.” 9
[34] I note that one element of the approach taken in Derole must however now be considered subject to the later decision of the Full Federal Court in FBIS International Protective Services (Aust) Pty Ltd v The Maritime Union of Australia.10 In particular, the Court has qualified that the appropriate reference point to assess the efforts of the applicant employer in obtaining alternative employment does not involve consideration of whether the employer was the strong, moving force towards the creation of the available opportunity.11
[35] There is no doubt in this case that Nortel obtained the alternative employment for Ms Westover. It organised the positions within its own business and made definitive offers which were subsequently rejected by Ms Westover.
[36] The critical issue here is whether the alternative positions were acceptable.
[37] It is well established in this jurisdiction that the concept of acceptable alternative employment is to be determined objectively and that the mere rejection of the alternative does not make it objectively unacceptable. As noted by the Full Bench in Derole:
“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.” 12
[38] The onus of establishing that the alternative employment in question is acceptable rests with the applicant employer13 and it is a serious step for the Commission to make an order to limit or remove an employee’s statutory entitlement to redundancy payments.14 In order to establish whether the alternative employment obtained by the employer is acceptable, it is necessary to have regard to all relevant matters including factors such as pay levels, hours of work, seniority, fringe benefits, workload and speed, job security and other matters including the location of the employment and travelling time.15
[39] It is also clear that acceptable employment does not mean identical employment; however, it has been held by the Commission that:
“…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.”16
[40] As observed by Bissett C,17 this approach is consistent with other authorities.18
[41] Further, employees should not unreasonably refuse offers of alternative employment merely because they wish to access the benefits of redundancy pay.19
[42] If the Commission is satisfied that acceptable alternative employment has been obtained, a discretion arises to reduce all or some of the redundancy pay having regard to all of the relevant circumstances.20
[43] The evident reference point for the assessment of the alternative employment is the redundant position. This is the approach adopted in the authorities and is consistent with the notion that it is the “other employment” that is being considered. The assessment is objective but must also take into account the circumstances of the employee involved. This is also evident from the authorities and the range of considerations generally considered. It has not been suggested in this case that I should ignore the present circumstances of Ms Westover (including that she is returning from extended parental leave and now having caring responsibilities) and it would be unreasonable to do so.
[44] In general terms, both of the new roles provide for the continuation of the same salary (as a minimum), general working conditions, the maintenance of all entitlements and continuous service, and involved work of a nature that Ms Westover has previously undertaken. This forms at least part of the basis for an objectively acceptable alternative position. It is against that proposition that I consider the concerns raised by Ms Westover as part of an assessment as to whether Nortel has satisfied the Commission that either or both alternative positions should objectively be considered to be acceptable (alternative) employment.
[45] Ms Westover concerns fundamentally fall into two categories. Firstly, the nature of the roles, being either sales or direct customer service positions. Secondly, concerns about some of the working arrangements associated with the proposed roles. I deal with each below.
The nature of sales and direct customer service positions
• The New CA position is different from the CS Champion role in that the focus of the positon and the relevant targets and KPIs are fundamentally sales orientated. It is however consistent with the earlier CA position and within the skills and competencies of Ms Westover.
• The EFM position more closely aligned with the CS Champion role, particularly when undertaken at the Munno Para store. However there is far less administration and it is an instore role directly dealing with the customers as part of the sales team, rather than dealing with complaints and follow-ups on the phones.
• There is little objective evidence before the Commission as to the health impact of a customer focused position – other than in relation to the need to stand and walk for long periods, which I will return to. Ms Westover’s own evidence appears to emphasise the consequences of a sales focused position, with related sales targets and associated potential for disciplinary action, and I accept those concerns given her history and her own evidence about those matters.
• The EFM position has no sales targets and the KPIs set out in the position description are consistent with a service, rather than a sales, role.
The working arrangements
• The new CA position was, consistent with the CS Champion role, full-time to be worked Monday to Friday without the need to undertake the rotating shifts otherwise operating at the store. This was reasonable given the nature of the CS Champion role and Ms Westover’s new circumstances.
• Given Ms Westover’s new circumstances, the part-time role offered by the EFM position was perhaps more suitable in objective terms.
• The position description for the EFM position expressly contemplates working rotating rosters; however during the course of proceedings, Nortel indicated that fixed weekday arrangements would be considered. I allow for this indication and the fact that such would not be guaranteed over time.
• As the need to stand and walk as part of the EFM position, there is some medical advice to indicate that standing and walking over long periods is an issue for Ms Westover. No details of the condition or the extent of standing and walking that causes these concerns or distress have been provided to the Commission. I accept that there is some capacity for Ms Westover to be seated in the EFM role but cannot discount that more extensive periods of standing or walking could be involved. I also observe that it would be Nortel’s obligation to provide a safe system of work in light of the actual medical circumstances of Ms Westover.
• The fact of two different work locations for the EFM role is a relevant consideration given that Ms Westover does not drive; however given the circumstances outlined earlier in this decision, this is not a significant militating factor in terms of the acceptability of the EFM role.
[46] I have also considered the other issues raised by Ms Westover arising from her disappointment that she was not simply offered a redundancy like some other employees or alternatively offered a part-time administration role that was provided to another employee during her parental leave. It is evident to me that these views have significantly influenced Ms Westover’s attitude to the alternative positions. They form part of the context, but do little to inform the assessment of whether the positions are objectively acceptable within the meaning of the FW Act. I also note that Nortel was obliged under the FW Act to provide a return to work guarantee, both to Ms Westover and to the employee who had earlier been given the part-time position when that employee’s parental leave had concluded before Ms Westover’s leave was completed.
[47] Having regard to all of the circumstances evident here and the approach required of the Commission under s.120 of the FW Act, I am, on balance, satisfied that Nortel has demonstrated that the EFM position was acceptable alternative employment for present purposes. There are some conflicting considerations, including some of those relied upon by Ms Westover, and these are relevant to the exercise of any discretion. This includes the fact that there was no formal or long-term commitment that Ms Westover would not in the future need to work the rotating shift rosters otherwise applied in the retail stores and her personal circumstances more generally.
6. Is it appropriate for the Commission to make an order to reduce the amount of redundancy pay?
[48] Given that the employer has obtained acceptable alternative employment for Ms Westover, the final issue is whether there should be a reduction (including potentially to nil, as sought by Nortel) in the amount of the redundancy payments. As outlined earlier, this is a matter of discretion to be exercised having regard to all of the relevant circumstances of a particular matter.
[49] Given my findings, I consider that a significant reduction in the amount of redundancy pay is warranted. However, some of the elements relied upon by Ms Westover remain relevant considerations, and given the redundancy and the loss of her employment, some account should be taken of the impact of those factors upon her and the decision to decline the alternative positions.
[50] In these circumstances, I consider that the NES redundancy payments should be varied to 40 % of those provided by s.119 of the FW Act. I note that this does not include or impact upon the notice, or pay in lieu of notice, that is required under s.117 of the FW Act.
7. Conclusions and orders
[51] I have found, on balance, that the EFM position was acceptable alternative employment within the meaning of s.120 of the FW Act. I have also found that it is appropriate to exercise my discretion to significantly vary the extent of redundancy payments otherwise due to Ms Westover.
[52] In all of the circumstances, I have determined that the redundancy payments should be varied to a figure representing 40 % of the payments due under the NES. An order 21 to that end is being issued in conjunction with this decision.
COMMISSIONER
Appearances
T McCarthy, of hussetHR, with permission, 22 on behalf of Nortel Pty Ltd.
M Westover, the Respondent in person.
Conference Details (by telephone):
2019
Adelaide
15 and 22 January, 6 March.
1 Confirmed in writing on 7 March 2019 with the payment of notice in lieu.
2 Letter to Ms Westover dated 19 December 2018 - attached to initiating application.
3 Letter to Ms Westover dated 18 January 2018.
4 Exhibit 1.
5 Exhibit 2.
6 Exhibit 3.
7 Appendix A to Exhibit 3.
8 Australian Chamber of Manufacturers and Derole Nominees Pty Ltd - Clothing Trades Award 1982 (1), (1990) 140 IR 123 per Peterson J, Marsh DP and Oldmeadow C.
9 Ibid at 127 and 128.
10 [2015] FCAFC 90.
11 Ibid at [19] and [20].
12 Derole at 128.
13 Re Target Retail Agreement 2001, PR916204, 4 April 2002, at para 6.
14 Clothing and Allied Trades Union v Hot Tuna (1988) 27 IR 226.
15 Re Clerks Salaried Staffs (Agriculture Award) 1999, Print S1216, 24 November 1999, drawing upon Derole.
16 Von Bibra Robina Autovillage Pty Ltd [2007] AIRC 397 (16 May 2007) at [26].
17 In Vicstaff Pty Ltd T/A Stratco v May and McFerran[2010] FWA 3141 at [28].
18 Clothing and Allied Trades Union v Hot Tuna (1988) 27 IR 226.
19 See also NUW v Tontine Fibres [2007] AIRCFB 1016 and the summary of principles in Spotless Services Australia Limited [2013] FWC 4484 per Sams DP at [14].
20 Re Clerks Salaried Staffs (Agriculture Award) 1999, Print S1216, 24 November 1999, drawing upon Derole.
21 PR705755.
22 Permission was granted pursuant to s.596 of the FW Act during each conference.
Printed by authority of the Commonwealth Government Printer
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