Pacific Biotechnologies Limited T/A Pacific Bio v Henry Kneipp
[2020] FWC 960
•21 FEBRUARY 2020
| [2020] FWC 960 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.120—Redundancy pay
Pacific Biotechnologies Limited T/A Pacific Bio
v
Henry Kneipp
(C2019/7542)
DEPUTY PRESIDENT LAKE | BRISBANE, 21 FEBRUARY 2020 |
Variation of redundancy pay – other employment offered – other employment found to be acceptable – redundancy pay varied – application granted.
[1] Pacific Biotechnologies Limited (Pacific Bio) has applied pursuant to s.120(2) of the Fair Work Act 2009 (the Act) to have the Commission reduce to nil the redundancy entitlement of Mr Henry Kneipp, a current employee of the company who has refused an offer of employment within Pacific Bio following a restructure.
[2] Mr Kneipp commenced employment on 1 December 2016 as a Laboratory Technician and is currently occupying a role responsible for water quality in an algae facility. The company is in the Aquaculture business and water quality is critical to the health of the animals.
[3] The business underwent a restructure and his position became redundant. He was offered a role on 28November 2019 as a water quality technician at Pacific Bio’s Pacific Reef Fisheries (PRF) site.
[4] Mr Kneipp had 3 years and 1 month of service with Pacific Bio at the time of the restructure. With this period of service, he would be entitled to 7 weeks redundancy as set out s.119(2) of the Act.
[5] The application to vary the redundancy pay of Mr Kneipp from 7 weeks to nil was on the basis that the Pacific Bio had provided acceptable alternative employment for him.
[6] The matter was allocated to me on 11 December 2019 and at a telephone mention on 8 January 2020 I issued directions for submissions and the parties agreed to a determination made on the papers.
[7] The matter for determination was: did Pacific Bio provide other acceptable work and if so, should the commission exercise discretion and vary the redundancy? If a variation was granted, the natural corollary is that I must determine to what degree the payout should be varied.
Relevant legislation
[8] Section 119 and 120 of the Act provide:
“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 |
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.”
[9] Section 121 of the Act provides:
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.
[10] 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 Act.
[11] 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)).”
Submissions of Pacific Bio
[12] Pacific Bio contended that they ran a redeployment process in an open and transparent manner with the opportunity for displaced employees to have discussions on options and generate ideas in a way that allowed the employees to make informed choices and decisions.
[13] They further commented that Mr Kneipp did not participate in the process and elected to decline the role offered without exploring the issues and possible options that he now asserts make it difficult for him to accept. The principles during the restructure are summarised and paraphrased by myself as:
● To keep as many of the team employed as possible; and
● To give employees the opportunity to be involved in the redeployment opportunities aiming to meet their preference as closely as possible.
[14] Pacific Bio submitted the following regarding the suitability of their offer of a new role:
“We have never stated that this is a parallel role – we have noted that there are differences in the role however there are also similarities, they also fall within the same industry and require the same qualification as Henry has, with only minimal training required. We believe that the suitability is further evidenced by the employees who have transferred into these roles.
The primary focus for both roles (Henrys Lab role and the Water Quality role) involves microalgae. Henry’s transition would be from a controlled Laboratory environment to a more open, hands on role however a significant component remains the management of microalgae, and the close monitoring of bloom health. The pond environment is manipulated based on data and analysis to provide a healthy environment for prawn health and growth.” 1
[15] On the matter of the roster changes:
“3.1 In relation to weekend work, both rosters have the same amount of weekend days off: Henry’s current 5on/2off/7on/3off/7on/4off roster operates over a 4 week cycle, having 2 full weekends off out of 4 (total of 4 weekend days off) The proposed 4/3 roster (if calculated over the same 4 week cycle) has 1 day off each weekend (total of 4 weekend days off). Our feedback from staff is that the 4/3 roster is easier to manage family weekend commitments as it is the same day off each weekend and therefore sporting activities etc can be more easily scheduled. Based on this I am unsure how to respond to the subsequent comments Henry has made regarding wife’s work commitments and domestic duties. Henry will have x2 full week days off, per week which is more favourable than his former roster. Henry will also be working 16 days per month on his new roster whereas on his former roster he was working 19 days per month.” 2
[16] And on travel time:
“The travel commitments due to the new roster should be significantly reduced by 9 hours per month, leaving just over an extra 2 hours per week for Henry to contribute to home duties and family. Henry’s previous 5on/2off/7on/3off/7on/4off roster requires x19 return trips to site over the 4 week cycle. The 4/3 roster requires x16 return trips to site over a 4 week cycle, therefore reducing travel time by 9 hours over the 4 weeks.”
[17] Further they stated that they were happy to have further discussions in order to understand what flexibility might be needed by Mr Kneipp.
[18] The following table was submitted by Mr Kneipp but has been annotated by the Respondent by way of a response. I have italicised the Respondent’s annotations for clarity. Note on the pay comparison as the new role was a wage based it had the penalties and shift loadings that in the employer’s mind more than equal the salary he previously had:
Position Comparison
Previous Role | Role Offered | |
Position Description | (Senior) Laboratory Technician | Water Quality Technician |
Main Responsibilities | Lab preparation and cleaning | Physical parameter check of product ponds (Use of ATV for transport); |
Roster | 5 ON, 2 OFF, 7 ON, 3 OFF, 7 ON, 4 OFF | Sunday to Wednesday or Wednesday to Saturday (4 ON, 3 OFF) ● The new roster is 16 days versus 19 days per month. |
Shift | Day shift from 6:00am to 2:00pm | Rotating start time ( day and night shift) of either 3am-1pm, 7am-5pm or 5pm-3am ● We have already offered flexibility around day shift only – please refer to detail below |
Hrs per Shift | 8 Hr Day | 10 Hr Day |
Hourly Rate | $30.36 (Salary) | $28.23 (wage) ● Plus applicable penalties and overtime |
Submissions of Kneipp
[19] Mr Kneipp submitted that were significant differences in the role he was offered to that of his original role. The key areas that he highlighted were the role duties, the roster and implications upon travel time and the pay. I extract from his submission the following:
“My previous role was as a Laboratory Technician growing algae for a dietary supplement, Astaxanthin. The offered role was as a Water Quality Technician at a prawn farm. The requirements of the roles are very different and cannot be considered equivalent.” 3
[20] Mr Kneipp further submitted:
“The lab role was highly specialised, utilising technical and analytical equipment for growing freshwater algae. The laboratory role was work inside a lab with little to no work outside of the lab to minimise contamination. This role consisted of
○ culturing algae from smaller vessels to larger vessels.
○ Transferring large lab cultures to outdoors for further up scaling.
○ Making nutrients for indoor cultures and outdoor cultures.
○ Checking the health and growth of both inside and outside cultures with microscopes and vacuum flasks.
○ Running nutrient samples to insure that cultures have enough for growth using a Hach Instrument.
○ I was requested to perform the extraction and analysis for testing the concentration of the Astaxanthin product using an analytical machine, HPLC.
The water quality role is field based position, checking the condition of the water using water quality testing equipment. The new role consisted of
○ Testing the physical parameters with a hand held pH/conductivity meter of every pond(I believe about 100+ ponds), multiple times a day.
○ Using an ATV to travel to each pond, recoding data and entering it in the site database.
○ Checking the health and size of the product (prawns).
○ Checking the results of tests to see if changes are required for ponds and informing supervisor.”
[21] In relation to the new role, Mr Kneipp submitted the following in relation to rostering arrangements:
“Roster
This new roster does not have any full weekends at all having either a Sunday or a Saturday off. This would have a significant impact on my family life. I would only have 1 full day per week that I would see my children and wife. My wife works full-time, and my eldest child starts prep this year. Due to my wife’s work commitments I am required to contribute to domestic home dues for our young family.” 4
[22] Mr Kneipp submitted he had concerns that rosters would not be consistent which could result in him working a mixture of day shifts and early shifts which would impact his family and parental duties and potentially result in personal fatigue. 5
[23] Mr Kneipp also submitted that the new position would result in increased travel time across each shift worked:
“The change to 10 hour days would reduce my time at home due to travel to site. I live in Townsville and my place of employment was Ayr. The travel time is about 1 hour and 15 minutes one way or 2 hours and 30 minutes per day without roadworks. Roadworks expected to finish late 2021 adds about 30mins or more per day. This would mean I went from having 13hours at home to 11hours(8h of sleep means from 5h to 3h of family, work prep and meals).”
[24] Mr Kneipp further submitted that the hourly rate payable as part of the new PRF position would be less than that in his Laboratory Technician role:
“Hourly rate
When I was first employed (December 2016) by the company I was offered a salary of $55,000 p.a. ($27.83 per hour) for a Monday to Friday position only.
Around July 2017 they amended my contract to a roster (I did not receive a copy of this amendment, but did sign it) and changed my salary to $56,000 p.a. ($28.34 per hour)
In March 2019 I received a salary review and increased to $60,000 p.a. ($30.36 per hour)
The new role has changed from salary to a wage and is now $28.23 per hour, only $0.40 per hour more than my initial employment 3 years ago. Both of which are base rates with no penalty rates.” 6
Authorities – “other acceptable employment”
[25] In Spotless Services Australia Limited t/as Alliance Catering [2016] FWC 4505 (‘Spotless’), the venerable Deputy President Sams usefully identified the authorities relevant to “other acceptable employment” and the task to be performed by the Commission:
“[60] The question of what constitutes ‘other acceptable employment’ in the context of a redundancy situation, has been considered by the Commission and its predecessors in many and varied circumstances and industries over a number of years. In Derole Nominees, a Full Bench of the Australian Industrial Relations Commission (AIRC) said at pp 128-129:
‘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.
This approach to the test demonstrates that any alternative employment available to the eighteen former employees of the company cannot be regarded as “acceptable” merely because a number of other former employees took up employment at the new location. The relevant aspects of the job must be examined objectively to determine whether the employment is “acceptable”.
…
The exemption provision imports the notion that an effort of a sufficient kind by an outgoing employer may cause his obligation for redundancy pay to be reduced; a decision by an employee not to co-operate with the employer may well disentitle the employee to all or some of the payment.’ (my emphasis)
[61] In Oscar Oscar Group Services Pty Ltd v Lees[2012] FWC 3901 (‘Oscar Oscar’), Commissioner Asbury (as Her Honour then was), said at paras [18]-[19]:
‘[18] The question of whether alternative employment is acceptable, must be assessed on an objective basis. It is relevant to the assessment that redundancy payments are not made solely for the purpose of assisting employees to find alternative employment. Redundancy payments are intended to tide an employee over during the search for alternative employment, and to compensate the employee for loss of credits for sick leave, long service leave and other entitlements based on length of service. The question of whether previous service with the previous employer is recognised as service with the new employer, will also be relevant.
[19] Other considerations will be whether the alternative employment is of a like nature; a reasonable distance from the previous employment; whether pay and conditions are comparable; hours of work and job security in relation to the new position. The fact that an alternative position does not meet the personal preferences of an employee, may place the right to receive full redundancy pay at risk, where the employee refuses a position that is found to be acceptable on an objective basis.’ (my emphasis)
[62] Senior Deputy President Watson in Feltex said at a para [33] and [89]:
‘[33] The parties accept, as do I, that matters to be considered in assessing whether alternative acceptable employment has been obtained include matters such as pay levels, hours of work, seniority, fringe benefits, workload and speed, job security, the location of work, continuity of service and accruals and the application of probationary periods. The relevant authorities also demonstrate that this listing of matters is not exhaustive and the question of whether an employment is acceptable alternative employment will be decided on the peculiar facts of a matter. Further, the authorities suggest that acceptable employment is not synonymous with identical employment, although the basis of the 2004 variation of the TCR test case provision suggests that, whilst not identical, terms and conditions should be substantially similar and no less favourable, overall, than the terms and conditions applicable to the employee at the time of the redundancy.
…
[89] I accept the proposition advanced by Feltex Australia that acceptable alternative employment is not necessarily identical employment and that the AIRC has previously found alternative employment to be acceptable notwithstanding inconvenience to employees and some detrimental alteration to the terms and conditions of employment.’
[63] In Vicstaff Pty Ltd (t/as Stratco) v May (2010) 204 IR 233 (‘Vicstaff’), Bissett C said at paras [29]-[30]:
‘[29] The determination of whether or not alternative employment is acceptable must be determined objectively and not subjectively from the perspective of the employer or employees. That the alternative employment may be rejected does not objectively make it unacceptable nor does the fact that the employment was offered make it, by virtue of the offer, acceptable. Further, that one of the persons out of a group may have accepted the employment does not make the employment acceptable for the others in the group.The reasons for the acceptance of alternative employment are many and varied and general conclusions should not be drawn from a particular circumstance.
[30] It is therefore incumbent upon the employer (Vicstaff) in this matter to demonstrate that the alternative employment is acceptable taking into account all matters relevant in such a consideration. Had the alternative work been considered acceptable to the individuals one imagines they would have accepted the work offered.’
[64] In DRW Investments t/as Wettenhalls v Timothy Richards & Others[2016] FWC 461, I said at para [183]:
‘[183] Notwithstanding the above general principles, whether the alternative employment is acceptable, will likely include consideration of the following matters:
● rate of pay;
● hours of work;
● work location;
● seniority;
● fringe benefits;
● workload;
● job security;
● continuity of service;
● accrual of benefits;
● probationary periods;
● carer’s responsibilities; and
● family circumstances.
This list is not exhaustive. There may be other relevant factors.’
[65] The above decisions have some common features, including:
● The test of what constitutes ‘acceptable employment’ is an objective one. It does not mean it must be acceptable to the employee.
● ‘Acceptable employment’ is not identical employment, as no two jobs could be exactly the same.
● An employee must meaningfully cooperate with the employer in exploring or considering options for alternative positions.
● An employee’s prima facie entitlement to redundancy pay may be at risk if the employee refuses a role or position, which is found to be objectively ‘acceptable’.
● The acceptance of alternative employment by one or more persons in a group of redundant employees, does not necessarily make the alternative employment ‘acceptable’ for all of them. Each employee’s individual circumstances must be taken into account.
● There are a range of factors of varying weight, according to an employee’s particular circumstances, which may be taken into account to assess the acceptability of alternative employment.”
Meaning of ‘acceptable employment’
[26] The question remains was the offer by Pacific Bio on terms and conditions no less favourable than the terms and conditions that Mr Kneipp experienced prior to the restructure?
[27] The proposed role does not have to be identical and in considering this the Commission must determine the matter objectively weighing up aspects of the role that include duties, conditions, pay level and location to mention some of them.
[28] Relevant to this point in Derole Nominees 7, 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.”
[29] A further explanation on this point was put forward by in Von Bibra Robina Autovillage Pty Ltd [2007] AIRC 397 by Richards SDP, who adopted the principles in Derole Nominees and said at paras [27]-[27]:
“[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.”
Was the substance of the role the same?
[30] Having regard to the above authorities, I consider 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.
[31] While there are difference between the roles, as highlighted by Mr Kneipp and accepted by Pacific Bio, there are still significant similarities between the roles. While not legislated factors for consideration in determining whether a position is substantially similar, applying the factors from Spotless 8provides some clarity in considering whether the positions are similar.
Rate of pay:
[32] As submitted by Mr Kneipp, his hourly rate as a (Senior) Laboratory Technician (calculated from his overall annual salary) is approximately $30.36, while the hourly wage in the non-salaried waged-based Water Quality Technician role was $28.23.
[33] I accept that it is likely given the work patterns identified by Pacific Bio that Mr Kneipp would likely work hours entitling him to penalty rates and overtime which would likely result in a substantially similar hourly rate on average.
Hours of work:
[34] It is accepted that the new PRF position would require Mr Kneipp to work a new roster with different hours to his Lab Technician position. Pacific Bio submitted the following comparison and explanation in relation to the new roster that Mr Kneipp would be required to work:
“Current: 7on/ 3off/ 7on/ 4off/ 5on/ 2off roster (8-hour days, 4-week cycle 2 weekends on/ 2 weekends off – all dayshift).
Proposed role: 4 on 3 off roster (10-hour days, every Saturday or Sunday off - including some night shifts)
The new roster is working to a different pattern however across the business the 4 on 3 off roster is viewed as being much more favorable than the 7/3/7/4/5/2 roster. Throughout the term of Henry’s employment his roster has already been adjusted a number of times, including a previous 4 on 4 off roster.
The notable difference is the inclusion of ‘Night Shift’. We cannot quantify how many shifts Henry would have been working night shift as this is based around a negotiation with the Water Quality Manager and employee. Typically, we try to cater to individuals’ circumstances and in a number of instances we have limited or removed night shift on a case by case basis for Water Quality Technicians.
We would welcome a conversation with Henry regarding the night shift if this is at the center of his concern in an effort to reduce or eliminate it from his roster.” 9
[35] Mr Kneipp submitted the new roster he would be required to work would have a significant impact on his family life:
“This new roster does not have any full weekends at all having either a Sunday or a Saturday off. This would have a significant impact on my family life. I would only have 1 full day per week that I would see my children and wife. My wife works full-time, and my eldest child starts prep this year. Due to my wife’s work commitments I am required to contribute to domestic home dues for our young family.”
[36] In response, Pacific Bio submitted:
“In relation to weekend work, both rosters have the same amount of weekend days off: Henry’s current 5on/2off/7on/3off/7on/4off roster operates over a 4 week cycle, having 2 full weekends off out of 4 (total of 4 weekend days off) The proposed 4/3 roster (if calculated over the same 4 week cycle) has 1 day off each weekend (total of 4 weekend days off). Our feedback from staff is that the 4/3 roster is easier to manage family weekend commitments as it is the same day off each weekend and therefore sporting activities etc can be more easily scheduled. Based on this I am unsure how to respond to the subsequent comments Henry has made regarding wife’s work commitments and domestic duties. Henry will have x2 full week days off, per week which is more favourable than his former roster. Henry will also be working 16 days per month on his new roster whereas on his former roster he was working 19 days per month.”
[37] I observe that under the new roster, Mr Kneipp would result in less days worked overall and more consistent days off on weekends, with at least one weekend day off each week. I have some sympathy for Mr Kneipp in regards to the disruption to his family life, especially given the requirement of the new role to involve some night shifts and an increased span of hours. However, as submitted by Pacific Bio, it was open to Mr Kneipp to engage in consultation and negotiation in regards to night shift and potentially his roster as a whole. Mr Kneipp did not take this opportunity.
[38] I consider it appropriate to regard the hours of work as a neutral factor, as while there are differences between the rosters that should not be overlooked, it appears there is an overall benefit in terms of days off for Mr Kneipp.
Work location:
[39] According to Google Maps, the PRF location is approximately 5 minutes (and 7 kilometres) away from Mr Kneipp’s prior place of employment and is located on the same road. I am satisfied the work locations are substantially similar.
Carer’s responsibilities and family circumstances:
[40] Mr Kneipp’s submissions place considerable emphasis on his family circumstances and responsibilities.
Seniority:
[41] Pacific Bio submitted that the role requires both laboratory and field related testing work, utilizing many of the skills Mr Kneipp used in his previous laboratory technician position, and was also in line with Mr Kneipp’s previous experience. 10 Mr Kneipp did not make any submissions on this specific point.
[42] I consider that the seniority of the role is substantially similar to Mr Kneipp’s Laboratory Technician role.
Continuity of service and accrual of benefits:
[43] There have been no submissions with regards to Mr Kneipp’s job security, continuity of service, accrual of benefits, or probationary periods in the new PRF role.
[44] It is clear Mr Kneipp would still be employed by Pacific Bio in the PRF role. As such, there would presumably be a rollover of Mr Kneipp’s service and benefits including any annual or long service leave.
Job security and probationary periods:
[45] There is no evidence or submissions before the Commission regarding job security. I note Pacific Bio indicated the restructure was because they had discontinued one product line but there is no indication there are any issues in relation to the viability of the business as a whole. There is also no evidence or submissions in regards to probationary periods. As such, I consider that these factors should be treated as neutral.
Conclusion:
[46] On the basis of the above, I consider there are substantial similarities between the roles, notwithstanding the differences in relation to hours of work and rostering.
[47] I am satisfied that on the whole, the alternative PRF position bears a sufficient comparability to the original work and is not unreasonably removed from Mr Kneipp’s original duties, skills set, qualifications, experience and other terms and conditions of employment.
[48] My considered view is that the employment offered by Pacific Bio was ‘acceptable other employment’ for the purpose of s.120(1)(b)(i).
Discretion
[49] Having established the jurisdictional facts required by s.120(1), I must now consider whether to exercise my discretion under s.120(2) to reduce the amount of Mr Kneipp’s redundancy pay. In doing so, it is appropriate to balance the conclusion that provided other acceptable employment for Mr Kneipp against any considerations raised by Mr Kneipp that might tell against the exercise of the discretion in this case.
[50] Pacific Bio underwent a restructuring and attempted to retain as many employees as possible through a process of consultation characterised by open transparent communication. The role offered to Mr Kneipp was a different role that utilised his existing skills and capabilities. However, there were differences in the location of the work, the duties were less lab based and more field based, and the roster had implications for family life.
[51] It is clear to me that Mr Kneipp did not engage in the process in a genuine manner rather he made it clear from the beginning that he did not want the role offered and simply wanted to take a redundancy. This may have suited his ambitions and lifestyle choices. However the organisation identified an opportunity that in my view was acceptable alternative work. By not engaging in the consultative process he limited his options.
[52] The existing role was no longer available, and the employee indicated that he was not resigning. In these circumstances the employer has sought to reduce his redundancy payment from 7 weeks to nil. This is indeed a significant reduction that must be weighed against Mr Kneipp making a judgement early in the process to refuse to consider the proposed role or discuss in detail how the role would work.
[53] It may be because Mr Kneipp saw an opportunity to base himself in a role closer to his home and the redundancy would assist him as a buffer in finding work that might prove to be less disruptive. However, he was offered an alternative that through further negotiation may have identified a suitable outcome for himself. As it is, Mr Kneipp did not engage in this process and this is not the purpose of redundancy.
[54] Taking into account all of the circumstances, I consider that I should exercise my discretion to reduce Mr Lee’s redundancy pay to 4 weeks. An Order [PR716963] will be issued separately reflecting this decision.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR716948>
1 Applicant’s Submissions in Reply dated 29 January 2020 at [2.1]
2 Ibid at [3.1]
3 Respondent’s Submissions dated 19 January 2020 at page 2
4 Ibid
5 Ibid at page 3
6 Ibid
7 (1990) 140 IR 123
8 Spotless Services Australia Limited t/as Alliance Catering [2016] FWC 4505
9 Applicant’s Submissions dated 16 January 2020 at page 2
10 Ibid at page 2
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