TAE Aerospace Pty Ltd v Mr David Vanner
[2025] FWC 953
•4 APRIL 2025
| [2025] FWC 953 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.120 - Application to vary redundancy pay for other employment or incapacity to pay
TAE Aerospace Pty Ltd
v
Mr David Vanner
(C2024/8558)
| COMMISSIONER DURHAM | BRISBANE, 4 APRIL 2025 |
Variation of redundancy pay – whether acceptable alternative employment obtained – other employment found to not be acceptable – application dismissed
This decision concerns an application by TAE Aerospace Pty Ltd (TAE) in respect of redundancy payments to Mr David Vanner. This application is made under Section 120(1)(b)(i) of the Fair Work Act 2009. TAE have applied to reduce Mr Vanner’s redundancy entitlements to nil, on the grounds that they found suitable alternative employment for him, that he did not accept. Mr Vanner objects to the application on the grounds that the position offered was not acceptable.
I issued directions to the parties to file and serve submissions and materials on which they sort to rely. The parties were also asked for a timeline of events, a version of which each party provided separately.
Ms Deidre Roos-Korf, Group Chief People, Culture and Safety Officer for the ASDAM Group of Companies (ADSAM Group), Mr Sam Watts, Senior Manager of Maintenance, Repair and Overhaul, Rosebank Engineering Pty Ltd (RBE) and Ms Kellie Morris, Head of Human Resources for ADSAM filed witness statements in support of TAE’s application. Mr Vanner filed two submissions in support of his position — opposing the application.
Having had the opportunity to view the filed material, neither party sought to cross examine any witnesses and the parties advised that they were content for the matter to be dealt with on the papers.
Legislation / Statutory Framework
Section 119 of the Act states as follows:
“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.
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
(3) A reference in this section to continuous service with the employer does not include periods of employment as a casual employee of the employer.”
Section 120 of the Act provides:
“120 Variation of redundancy pay for other employment or incapacity to pay
This section applies if:
(1) an employee is entitled to be paid an amount of redundancy pay by the employer because of section 119; and 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.”
The scope of this decision
The parties agree that Mr Vanner’s position became redundant from 30 November 2024. He is therefore entitled to be paid redundancy entitlements pursuant to section 119. The question for consideration in the matter however is whether TAE obtained other acceptable employment for Mr Vanner and if this is the case, whether I will exercise my discretion to reduce those amounts.
Observations about the submissions
Much of the material filed by both parties focuses on matters that are not instructive when determining whether a variation to Mr Vanner’s redundancy entitlement should be made. Whilst I acknowledge the significance of this material to the parties, particularly with respect to issues relating to the genuineness of the redundancy, much of this material is not traversed in this decision, however the parties can be assured that all material filed has been read and afforded appropriate weight in my considerations.
The timelines provided by the parties largely aligns save for the date of the meeting held on 10 October 2024, which Ms Roos-Korf refers to occurring on 10 November 2024 as well as a meeting that occurred on 12 October 2024. Any discrepancies in the timelines have been identified below.
Background and timeline
TAE and RBE are part of the ASDAM Group, which provides maintenance, repair, and overhaul products and services to the aviation industry.
Mr Vanner was employed at TAE as an Aircraft Maintenance Engineer on 10 November 2014. In or around December 2023, Mr Vanner accepted the role of Business Development Manager - Components (TAE role/existing role)
On 28 March 2024, Mr Vanner was offered and accepted a secondment to RBE in the role of Business Development Manager - Components (RBE role/proposed role) for a six-month term. The secondment commenced on 8 April 2024 and was to conclude on 8 October 2024.
Mr Vanner submits that on 17 September 2024 he attended what he considered to be an “informal in person catch up” with Mr Watts. During the meeting Mr Vanner was advised of TAE’s intention to make his existing position redundant. He was also advised that a role was being created for him at RBE “should he wish to come across”. This meeting is later referred to by both TAE and RBE as the “initial consultation meeting”.
On 1 October 2024, Mr Vanner attended a second meeting with Mr Watts and Mr Aidan Butler-Bonnice, RBE General Manager, in Melbourne. During the meeting, Mr Vanner was provided a letter titled “Redeployment to Rosebank Engineering Pty Ltd”. The letter confirmed that Mr Vanner’s substantive role at TAE Aerospace was redundant, and that a suitable alternative role, of Business Development Manager - Components, with RBE had been “presented”. The letter provided the following relevant information:
“Transfer Details:· New Business Department: Maintenance Repair and Overhaul (MRO)
· Location: Work from home – no change to location
· Business Address: 836 Mountain Highway, Bayswater, VIC, 3153
· Effective Date of Transfer: 9th October 2024
· New Line Manager: Samuel Watts, Senior Manager, MRO
· Job Responsibilities: Your job responsibilities remain largely the same.
Impact on Employment Terms:· Your salary and other terms of employment will remain unchanged.
· The redundancy provision as stipulated in the TAE Agreement will be extended to your new contract.
· A new employment contract will be issued”.
The letter further advised that there would be a final consultation meeting on 4 October 2024 to provide Mr Vanner “the opportunity to provide feedback on the redeployment into this role and discuss the new arrangements”. The letter concluded by confirming that the start date for the new position (proposed by RBE to be 9 October 2024) would be confirmed after the final consultation meeting.
At some point after this meeting, the parties agreed that the secondment would be extended to allow TAE time to prepare the Contract and Position Description and Mr Vanner time to consider them. As I understand it, the extension was until 25 October 2024.
On 10 October 2024 Mr Vanner participated in a phone call with Ms Roos-Korf and Mr Arthur Garas, General Manager TAE Adelaide. TAE describe the purpose of this meeting as being “to discuss any questions”. Mr Vanner recalls that during the meeting, he raised the following issues regarding the proposed RBE role:
The impact of 100% working from home due to his domestic situation
Concerns about travel and the impact on his domestic situation.
Working from Ipswich for a Melbourne-based business unit.
I note that Ms Roos-Korf’s statement appears to refer to this meeting occurring on both 10 November 2024 and 12 October 2024. Neither of these dates are mentioned elsewhere in the material provided. The timelines provided from both parties do not indicate a meeting taking place on either date. It is therefore assumed that both of these references are typographical errors.
It is Ms Roos-Korf’s submission that during the meeting she explained to Mr Vanner that the reference to 100% working from home was based on his current arrangements during his secondment. Ms Roos-Korf says she clarified that the RBE role was a hybrid role which meant that Mr Vanner could decide when to work from home and when to work from the Ipswich office. She further asserts that it was explained to Mr Vanner that the requirement to travel would be infrequent and that they would be happy for him to work around his domestic arrangements.
Following the meeting, Mr Vanner states that he did not receive the relevant documents as discussed. It was not until 21 October 2024, that he received a contract of employment from RBE. The following day, 22 October 2024, he received the proposed position description.
On 25 October 2024, having considered the contract and position description, Mr Vanner sent an email to TAE and RBE advising as follows:
“This is not easy to write after committing 10 years of my life to the business. But after taking some time to evaluate the impact of what a new role with Rosebank might look like and how it will impact both my personal life and my ability to do the job. I do not believe the role with Rosebank will be a suitable alternate to my role made redundant at TAE. I believe to fill the role, be truly effective and contribute to the business, as well as support my own development and mental health, I need to be more directly connected with the team I work with, as I was in my Strategy and Commercial Exec role. Meaning, I would need to spend more time in Melbourne.
With two very young children it required significant co-ordination just to get to Melbourne for the day. This is while my partner is on maternity leave, once Lily returns to work the impact and coordination will be greater.
I spoke with Sam this morning in the US and shared I would be happy to further extend the secondment for a short period as there are a couple of things I am working on currently I would like to see completed or tidied up for handover. But ultimately as my role with TAE has been made redundant and I do not consider there to be a suitable alternative, I accept that this too means I will be made redundant by TAE.”
On 14 November 2024, Mr Vanner attended a meeting with Ms Roos-Korf and Ms Morris. Mr Vanner is of the view that the focus of the meeting was TAE fulfilling their obligations to formally offer him alternative roles, of which there were none. Mr Vanner submits that during the meeting, Ms Morris read the list of current roles TAE was currently recruiting for, all of which were mutually agreed to be unsuitable as they did not fit his skill set, seniority or current salary.
TAE’s submissions concur with this, stating that the meeting was “a consultation meeting with Mr Vanner to consider any proposals as alternatives to retrenchment from TAE”.
That same day, Mr Vanner received a letter from TAE confirming their position. Specifically, TAE advised Mr Vanner that, following a review of the business development structure, they had concluded that Mr Vanner’s position was no longer required, resulting in him becoming redundant effective 30 November 2024. The letter went on to note TAE’s view that Mr Vanner had been offered a “suitable alternative role” but had not accepted it.
He was advised that the “process from here” would be:
“We will work with you to understand your personal circumstances and the impact that this change has on you.
We will continue to look for another suitable position for you to be redeployed into. A suitable position will be based on your skills and experience and salary is commensurate with your current salary. It is important to note as of today no suitable role has been identified within the ASDAM group.
If a suitable redeployment opportunity is not found, this may result in the termination of your employment contract.
The company recommends you seek your own legal advice in terms of the potential impact on your redundancy payments in the case you decline a suitable alternative role.
All information and calculations will be provided to you, once it is confirmed that this is the only applicable option.”
Mr Vanner was asked to provide any further information to TAE by close of business Friday 22 November.
On 21 November 2024, Mr Vanner sent an email to TAE and RBE. The email deals with a range of issues, however, relevant to my consideration, Mr Vanner outlines why he considers the role with RBE to be “not equivalent/comparable or suitable redeployment”. In short summary, Mr Vanner raises his concerns under the following headings:
The Rosebank role/PD is a 100% work from home role
Change to my personal circumstances and subsequent impact on my family with an increased requirement to travel
Remuneration
Reporting line/seniority in the company
Shrinking of responsibilities
The parties have differing views on the exact date, either on 21 or 22 November 2024, Mr Vanner attended a “close-out” meeting via video conference. The meeting was attended by Ms Roos-Korf and Ms Morris. Ms Roos-Korf notes that this was the final consultation meeting with Mr Vanner and he “did not present any additional information for TAE to consider and did not identify any other role(s) in TAE that he wanted to pursue”.
On 29 November 2024, Mr Vanner’s redundancy came into effect, and his final payment was made.
Submissions
The Applicant
TAE submits it ‘obtained other acceptable employment’ with another company in the ASDAM Group for Mr Vanner and that he rejected their offer of ‘other acceptable employment’. TAE says that Mr Vanner's rejection of the ‘other acceptable employment’ offer releases TAE from paying redundancy pay under the Act.
Nature of the work
The last role held by Mr Vanner with TAE was the role of Business Development Manager – Components. The RBE role and the last role Mr Vanner performed at TAE are both commercial, strategy, and business development roles that deal with commercial issues, develop marketing strategies for business developments and sell maintenance components and services to existing and new customers.
TAE submit that Mr Vanner has the appropriate experience, skills and qualifications to perform the RBE role. He performed excellently during his secondment to the RBE role and demonstrated his capacity to perform the role, where he was seconded for nearly nine months. The permanent role would not have differed regarding the workload, or the speed required to perform the work.
Location, pay and conditions
RBE has its main office in Bayswater, Melbourne, with external sites in Airport West,
Ipswich and Adelaide. Several other RBE employees work at Ipswich. TAE submit that:
The RBE role is on the same salary and conditions of employment as Mr Vanner’s previous role at TAE.
The working hours are the same as the previous TAE role.
The RBE role is on the same seniority level as Mr Vanner’s previous role at TAE.
As such Mr Vanner would have transferred on his TAE (the same) employment conditions.
Working from home
TAE submit both roles provided for a hybrid work-from-home work environment and contend that Mr Vanner’s concern about the impact of working from home might have on his domestic situation was addressed by them offering him an office at the Ipswich site. They further argue that Mr Vanner’s ability, for example, to ask for workplace flexibility was not impacted by the offer of employment from RBE.
TAE suggest that Mr Vanner is not the only RBE employee who works remotely from Ipswich. Several other RBE employees, including a Senior Business Development Manager and operational and maintenance employees, also work from the Ipswich site. Further, they suggest that Mr Vanner was advised that any travel, anticipated to be once a quarter, would consider his domestic situation, noting his role with TAE also required intermittent travel.
TAE submit that Mr Vanner previously worked with RBE under these same arrangements (i.e., basically exclusively from home). They suggest this working arrangement was of his own choice as other RBE employees work out of the Ipswich office. TAE further note that Mr Vanner had not previously expressed any concerns with the working from home arrangement.
Further, Mr Vanner did not provide any medical evidence that he is/may be vulnerable to any impact on his mental health in circumstances where he would essentially be working in the same circumstances and performing the same duties as what he had performed for the
last nine months of his employment with TAE when seconded to RBE. With respect to concerns regarding his future development, TAE submits that someone’s performance and ability, not the site where they work, impacts an employee’s development.
It is further submitted that Mr Vanner’s subjective views about the process and the lead-up to the title change of his last role with TAE, the redundancy of that role and RBE's offer of employment play no role (save for the fact that TAE obtained the RBE role) in considering whether the RBE role is ‘acceptable alternative employment’. Similarly, TAE submit the organisational change activities that led to a change in the job title of Mr Vanner’s role, and the redundancy of his TAE role were reasonable management actions because of organisational changes and were done reasonably. Mr Vanner’s view and/or frustration about how TAE may have dealt with the redundancy of his TAE role cannot be justified as a reason why he refuses the offer of the RBE role. In the circumstances, TAE submits it obtained ‘other acceptable employment’ for Mr Vanner.
Consequentially, TAE submit that Mr Vanner’s rejection of the offer of employment for the RBE role placed his redundancy payments under the Act at risk. It is further submitted the RBE role offered to Mr Vanner objectively satisfies all the criteria developed by the Commission to determine whether ‘acceptable other employment’ was obtained by an employer.
TAE submit that the redundancy pay should be reduced to nil because Mr Vanner rejected an “acceptable other employment’ role like his commercial, strategy and business
development roles at TAE and when seconded to RBE.
Mr Vanner’s submissions
Mr Vanner’s submissions focus in large part on the history of his role prior to his secondment and on what he considered to be failings in TAE’s consultation process. I accept that the parties disagree on the precise nature of his role prior to accepting the secondment but for reasons explored further below, this is not particularly instructive when determining the question at hand. Whilst I appreciate the importance of these matters to Mr Vanner, and the levels of frustrations the process caused him, these submissions are not instructive when considering the question of whether Mr Vanner was offered acceptable alternate employment. Whilst all of Mr Vanner’s submissions in this regard have not been specifically addressed in this decision they can be taken as read and have been afforded appropriate weight where relevant to my considerations.
Mr Vanner submits that his 25 October 2024 email outlined his initial reasoning as to why he did not consider the offer suitable redeployment, highlighting the impact the redeployment would have on his family and personal circumstance. In short summary, Mr Vanner advised TAE of the following concerns:
The Rosebank Role/PD is a 100% Work from home role and Mr Vanner found this arrangement to be inefficient and this did not create a positive family or work environment.
That his personal circumstances had changed such that an increase in the requirement to travel would not align with his family and caring arrangements.
That whilst the level of Remuneration would remain the same, he had been advised by Mr Watts that he would not be eligible for annual salary review until his rate aligned with the RBE rates
That he would no longer be eligible to participate in the TAE Bonus/incentive scheme.
That the proposed role represented a reduction in seniority and a “shrinking of responsibilities.
Mr Vanner further submits:
That TAE, in their application, have been selective in their recollection of his reasoning for not accepting the offered alternative employment, thus diminishing Mr Vanner’s claim for redundancy payment.
Mr Vanner questions the legitimacy of the Melbourne role offer and whether there is a real business demand, suggesting that the offer was simply a decision to carry cost instead of paying redundancy.
Working arrangements
Mr Vanner disagrees with TAE’s suggestion that he “elected to work 100% from home”. Mr Vanner states that this is untrue as he worked a hybrid model. Until the recent restructure Mr Vanner held an office at the Ipswich facility; despite losing his office to another department through the restructure. He still maintained the hybrid model working onsite from ‘hot desks’ to maintain relationships with peers and co-workers and attend internal and external meetings as required. Under Secondment, due to working for a Melbourne based business, it again was not elected, there was no other option than 100% WFH. Mr Vanner states this presented its own challenges and proving that the RBE role offered was significantly different to the one he held with TAE, which he says cannot be done effectively by working 100% from home.
Consideration
There are two elements to section 120(1)(b)(i). The first is that I must be satisfied that the position in question was obtained by the Applicant.
If satisfied of the first element, the second element to be determined is whether the position obtained was acceptable. If the position is found to be obtained and acceptable, I must then consider whether to reduce the amount owing to the Respondent.[1]
Was the position “Obtained” by TAE?
In this case, I am satisfied that by offering Mr Vanner the position of RBE Business Development Manager Components, they did obtain alternative employment for him.
Was the position acceptable?
The Act does not set out any basis for determining what is and is not acceptable however it is well established that this is an objective question, that will necessarily turn on consideration of all the facts and circumstances.
As noted by the Full Bench in Australian Chamber of Manufacturers v Derole Nominees Pty Ltd at 124:[2]
“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 provisions 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 elections 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.”
The meaning of the words “other acceptable employment” in the context of s.120(1)(b)(i) was further considered by Deputy President Sams in DRW Investments Pty Ltd t/a Wettenhalls v Timothy Richards & Others:[3]
“[178] … The underlying principle as to what is ‘acceptable employment’ does not mean it must be acceptable to the employee. … The test is an objective one. …
…
[182] … 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. …
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.’
[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.
[184] It is also necessary to take account of whether the employee is cooperative and
willing to meaningfully engage with the employer in discussions on any offers of alternative employment. An unreasonable refusal to accept the alternative employment or a failure to meaningfully engage with the employer about objectively reasonable offers, may result in orders to reduce the redundancy pay entitlement to nil. As the authorities make plain, these are factors which may influence the Commission’s exercise of discretion under s 120 of the Act.”
The case law outlines the factors to be considered in relation to section 120(b)(i) of the Act. I considered these factors, where relevant to this matter, below.[4]
The Nature of the Work
TAE are of the view that the proposed role with RBE was a suitable alternative. Importantly, they have not suggested that the roles are identical, simply that they believe that the alternative role they offered was essentially the same role Mr Vanner had been performing during secondment and was similar to his existing TAE role. TAE therefore submit that Mr Vanner had the skills and abilities to perform the role.
Mr Vanner makes various submissions focussed on demonstrating that the proposed role was not substantially the same as his existing role, including disputing which role with TAE should be used as the comparator. Such arguments do not advance his case very far.
The notion that any role offered was required to be substantially the same as the role being made redundant is difficult to maintain, because the organisation has decided that the role, as it was, is no longer required. What is relevant to this consideration though is whether Mr Vanner has the skills and experience required to perform the proposed role. In this regard, whilst the role may well be inherently different to his past role, I have not been convinced that the nature of the work is outside of Mr Vanner’s skill or experience. These factors weigh in favour of finding that the RBE role was acceptable employment.
Rate of Pay
Mr Vanner does not dispute that he had been offered the proposed role at the same remuneration as the TAE role however he does take issue with the impact of the change to his ongoing salary. Mr Vanner states that at his initial consultation meeting with RBE, he had been advised whilst his remuneration would remain the same, the rate was higher than they had expected and as such, he would not receive any annual review increase for some time, to allow his rate to align with the RBE salary scale. Similarly, Mr Vanner suggests that a major factor in his decisions was his understanding that he would no longer be eligible to participate in the TAE bonus and incentive scheme.
Mr Watts disputes this and suggests that no such statement was made. I also note that Ms Roos-Korf’s statement suggests that since the restructure, the bonus scheme is no longer available to employees at Mr Vanner’s level at either TAE or RBE.
It is relevant however that Mr Vanner was clear with TAE that these two issues were significant factors in his forming the view that the RBE role was not acceptable. This was clearly articulated in his 21 November 2024 email to Ms Roos-Korf and Ms Morris. I accept that this was his understanding of the position when making the decision about the acceptability of the proposed role.
That TAE have made the above submission in support of this application does not mean these concerns were addressed to Mr Vanner’s satisfaction prior to his making the decision that the position was not acceptable. If TAE felt that Mr Vanner had misunderstood their offer, it would be reasonable to presume that they would have clarified this by reply email, or by issuing a new contract of employment that addressed these concerns. It is also relevant that the final consultation meeting appears to have been solely occupied by ticking off the list of other unsuitable roles, rather than reassuring Mr Vanner that his concerns were unfounded. Viewed objectively, in the circumstances, it was reasonable that Mr Vanner had formed the view that the proposed position provided less remuneration that he would have expected to receive had he stayed in the TAE role. This is a significant negative factor that weighs against finding that the RBE role is other acceptable employment.
Work location
TAE assert that there has been no change to Mr Vanner’s location of work however Mr Vanner states that his TAE role was based in both Adelaide and Ipswich as reflected in his position description. Mr Vanner states that prior to his secondment he had a physical office in the Ipswich location (although it is noted that after the restructure, this moved to a “hot desk” arrangement).
The proposed role was based in Melbourne. As Mr Vanner lives in Brisbane, the result of this was that he would have been required to work remotely.
It is curious that TAE assert that there has been no change in location. I can only presume they say this because during Mr Vanner’s secondment to RBE his role had been based in Melbourne, which required him to work remotely from home. The difficulty I have with this position is that the position that was made redundant, is the TAE role. The TAE role was Mr Vanner’s substantive position, and I have not been convinced that Mr Vanner held any intention other than to return to this role at the conclusion of the secondment to RBE which is evident from the initial end date of 8 October 2024. It is therefore, the TAE’s position from which any comparison of location must be drawn.
It is therefore relevant that Mr Vanner maintains that he had never, in his TAE role worked exclusively 100% from home. In fact, Mr Vanner’s submissions indicate that he found this part of the RBE role quite challenging, particularly with a newborn, his partner and two four-year-olds in the home. I note TAE’s submission that the RBE role was originally offered as 100% working from home because that was what Mr Vanner was doing during his secondment, however, as with the question of remuneration discussed above, Mr Vanner was very clear at all stages that this was essentially a deal breaker for him. If it was genuinely TAE’s intention that the proposed role was a hybrid role, and Mr Vanner could choose to work any mix of in person and from home, surely this would have been addressed and resolved.
That Mr Vanner was still clearly stating this to be his primary concern with the proposed role as late as 21 November 2024 is demonstrative that his concerns had not been resolved. Viewed objectively, I find it reasonable that Mr Vanner had formed the view that the change in location, from his TAE role, which was based in Ipswich and Adelaide, to the proposed RBE role, based in Melbourne, and therefore 100% remote, was not acceptable to him. This weighs against finding that the RBE role is other acceptable employment.
Seniority
TAE assert that the RBE role was equivalent in seniority to the TAE role. Mr Vanner, however, argues that his previous role with TAE was considered an “Executive” role. He argues that he had reported directly to the CCO however the RBE role was proposed to report to the Senior Manager through to the now equivalent level of CCO, the GM as a BD manager. In his words the RBE role was “one level down”. Again, I have not been convinced that, despite continuing to raise his concerns in this regard, this concern was addressed. I accept that it was reasonable for Mr Vanner to have formed the view that this resulted in a reduction of his seniority. This weighs against finding that the RBE position is other acceptable employment.
Carer’s responsibilities and Family circumstances.
Mr Vanner notes that occasional travel had always been required as part of his TAE role, however it was clear to him that shifting to a role based in Melbourne would result in more travel. Mr Vanner had experienced this during his secondment and found it challenging.
Mr Vanner notes the logistics required to allow him to travel are considerable and would have been further complicated when his partner returned to full time work in the new year. I accept that Mr Vanner made this arrangement work, while on secondment, however, I also accept that he did this in the knowledge that this was a short-term arrangement, and with the understanding that he would be returning to the usual location and travel patterns that came with the TAE role once the secondment concluded. I again note that whilst TAE have made submissions regarding their level of travel required, it was clear that this was one of the reasons Mr Vanner found the RBE role unacceptable and I have not been convinced that they took any steps to resolve this question. Viewed objectively, I find it was reasonable in the circumstances, that Mr Vanner formed the view that the increased travel requirement that came with the RBE role would impact his ability to accommodate his family responsibilities and as such, it was reasonable that he formed the view that the RBE role was not suitable. This is a significant negative factor that weighs against finding that the RBE role is other acceptable employment.
Conclusion
Determining whether the role offered to Mr Vanner was acceptable requires an objective assessment of the suitability of the role to Mr Vanner, in the context of his personal circumstances, at the time he was required to make his decision.
Having considered all the submissions and circumstances of this matter, I find that, having meaningfully engaged in discussions regarding the proposed position, it was reasonable for Mr Vanner to have reached the conclusion that he was unable to accept the offer of redeployment to the RBE role.
Consequently, I find that TAE did not obtain acceptable alternative employment for Mr Vanner within the meaning of section 120(1)(b)(i) of the Act.
As the requirements of section 120(1) have not been met, it is not open to me to consider any reduction in Mr Vanner’s redundancy entitlement. The application is therefore dismissed
COMMISSIONER
[1] Kelly Group (Administration) Pty Ltd [2023] FWC 2650.
[2] (1990) 140 IR 123.
[3] [2016] FWC 461, [178]-[184].
[4] [2019] FWC 756, [24]; [2016] FWC 2880, [11].
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