Replay Browns Trust Pty Ltd T/A iPlay Pacific Fair

[2019] FWC 7519

[2019] FWC 7519

FAIR WORK COMMISSION

DECISION

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

Replay Browns Trust Pty Ltd T/A iPlay Pacific Fair
(C2019/5477)

COMMISSIONER SIMPSON BRISBANE, 31 OCTOBER 2019

Application to vary redundancy pay for other employment – other employment refused – other employment incurred significant travel time – not acceptable other employment – application dismissed.

[1] On 4 October 2019 Replay Browns Trust Pty Ltd T/A iPlay Pacific Fair (“the Applicant”) made an application under s.120 of the Fair Work Act 2009 to vary the redundancy pay that it said was otherwise due under the Replay Browns Plains Trust Enterprise Agreement AG2009/20837 (the Agreement).

[2] At the conclusion of a hearing on 31 October 2019 I issued a brief oral decision dismissing the application and indicated I would issue more fulsome written reasons to follow. These are those reasons.

[3] The Agreement provided for redundancy pay at clause 25.6 and at clause 25.7 says as follows:

“25.7 The above severance payment will not be made where the Company obtains acceptable alternative employment for the employee.”

[4] The Fair Work Act 2009 at s.120 provides as follows;

“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.”

[5] Given the similarity in language as between the Agreement and the NES nothing turns on whether the test is applied under the Agreement or the NES. The scale of severance entitlements is also the same under the Agreement as it is in the NES.

[6] The Applicant states that the reason why it is seeking to vary the redundancy pay of one of its former employees, Ms Michelle Hook, is that it offered an acceptable transfer of employment to Ms Hook as a manager at one of its other locations at Redbank Plains. At the time of termination Ms Hook was employed by the Applicant at a location in the Pacific Fair shopping centre at Broadbeach on the Gold Coast. In response to the question on the application form “Have you obtained other acceptable employment for the employee? The application form stated “Offered a Venue Managers position at iPlay Redbank, same duties, same work hours, same pay.”

[7] In response to the question on the application “Has the employee accepted the offer of other acceptable employment?” the Applicant’s form stated “too far to travel”.

[8] The application form made clear the Applicant was not arguing incapacity to pay.

[9] Ms Hook resides at Broadbreach on the Gold Coast and commenced employment with the Applicant on 21 August 2017. Her base rate of pay at the date of redundancy was $55,000 per annum. Ms Hook resided in the same suburb as the location of her employment at Pacific Fair Shopping Centre at the time of the termination.

[10] Ms Hook’s redundancy entitlement is 6 weeks. The Applicant is seeking the redundancy entitlement be reduced to zero.

[11] The matter was listed for a directions hearing on 1 October 2019 where both parties represented themselves. Following the directions hearing the matter was listed for hearing on 31 October 2019, with the applicant to file any evidence or submissions by 15 October and the Ms Hook by 29 October.

[12] On 15 October the Applicant filed material including an email from Ms Hook to the Applicant that read as follows:

“Hi Nikki

Unfortunately I will have to decline the offer of Redbank Manager, it is too far for me to get to and I am currently paying the mortgage on my broadbeach unit.

It saddens me deeply to no longer be working for iPlay, I truly love my job and have worked very hard since starting with the company.

As I am not accepting the offer is there a redundancy package or similar that I will be entitled to?

Regards
Michelle”

[13] The Applicant also provided the Commission with a screen shot from the Google Maps website application that indicated estimated travel times from Redbank Plaza to Broadbeach. Google Maps indicated that travelling by car via the M1 would typically take between 1 hour and 1 hour and 20 minutes and would involve travelling a distance of 89.2 kilometres. A trip via State Route 90 would typically be 1 hour 30 minutes to 2 hours and be 105 kilometres. A third option of travelling via a combination of public transport and walking would take 2 hours and 53 minutes.

[14] On 29 October Ms Hook filed a one page response to the Applicant’s material which included the following statement;

“As I don’t have a car I would be required to catch public transport which would be around a 6 hour round trip, in a managers positions [sic] working an 8 hour shift rarely happens and tends to be more like 10-12 hours shifts”.

[15] At the hearing conducted by telephone on 31 October Ms Elphinstone represented the Applicant, and Ms Hook represented herself. At the commencement of the hearing I took both parties to the material filed with the Commission and asked both parties to confirm that the material filed was the totality of the material before the Commission and all of the material on which the parties sought to rely. Both parties confirmed that was the case.

[16] I then asked both parties whether they wished to dispute any of the facts presented by the other party in the other parties’ material, and both parties indicated that there were no factual matters presented by the other side that they wished to challenge. Ms Elphinstone clarified one matter raised by Ms Hook and submitted that the entities operating the stores at Broadbeach and Redbank were related entities.

[17] I proceeded on the basis that it is not in dispute that the other alternative employment offered at Redbank required the performance of the same duties, the same work hours and the same pay.

[18] Ms Elphinstone confirmed to the Commission that it did not dispute Ms Hook’s claim that she did not own a car, and it followed that the Applicant did not contest that Ms Hook would be required to use public transport in order travel from Broadbeach to Redbank and back again in order to accept the other employment offered by the Applicant.

[19] On the basis of the material before the Commission, in order for Ms Hook to accept the alternative employment, her circumstances would change such that instead of residing in the same suburb in which she worked at Broadbeach, she would be required to make a daily commute to and from work at Redbank of 5 hours and 46 minutes.

[20] In a Federal Court Full Court decision in Australian Commercial Catering Pty Ltd v Fair Work Commission [2015] FCAFC 189,the Full Court dealt with circumstances involving an application for an order to reduce redundancy entitlements where a refusal of an offer of alternative employment was connected with additional travel requirements.

[21] The Full Court said the following at paragraph 54;

“54. We accept that ordinarily factors such as these will be relevant to the determination of whether employment is “acceptable”. It is nonetheless true, as the employees submitted, that the determination is not made in a vacuum. Regard is to be had to the evidence of the particular circumstances of the employees. After all, the statute speaks of the employer obtaining acceptable employment “for the employee”. What might be acceptable employment for one employee will not necessarily be acceptable for another. The Full Bench recognised as much in Clothing Trades Award. To take one example, even where all other circumstances are equal, it is unlikely that employment obtained by an employer for an employee with a disability which prevents him or her from climbing stairs will be acceptable employment for that employee if the only access to the lavatories is via two flights of stairs.”

[22] The Full Court went on in the context of the particular facts of the case before it to says as follows about travel;

“56. …ACC accepted (and rightly so) that increases in travel times may be taken into account in determining whether the employment obtained by the employer is “acceptable employment for the employee” within s 120(1)(b)(i). Plainly, these factors are relevant, whether or not an objective test applies. An increase in travel times will often result in a reduction in net wages in that it will usually involve higher fuel costs or increased fares. It may also have higher personal costs in that it will reduce the amount of leisure and family time available to an employee….”

[23] Whilst it was not the subject of specific evidence, it is self-evident that Ms Hook will incur higher travel costs. Ms Hooks claim that the manager’s role at Redbank will regularly involve 10 or 12 hours working days was not challenged. 10 or 12 hour working days would result in a combined work and commute time in the order of approaching 16 or even 18 hours.

[24] On the material before the Commission it would appear if Ms Hook were to have accepted the position, given her reliance on public transport it would have been likely to result in Ms Hook having almost no leisure or family time on work days. I accept the reason that Ms Hook gave for not accepting the other employment, namely “...it is too far for me to get to...” was entirely reasonable. I am not satisfied that the Applicant has obtained other acceptable employment and on that basis the application for variation of redundancy pay is dismissed.

COMMISSIONER

Appearances:

Ms N Elphinstone appearing on behalf of the Applicant

Ms M Hooke appearing on her own behalf

Hearing details:

2019,

Brisbane:

31 October 2019

Printed by authority of the Commonwealth Government Printer

<PR713887>