The Commissioners of the Presbyterian Church in WA T/A Braemar Presbyterian Care

[2016] FWC 3138

[2016] FWC 3138

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.120—Redundancy pay

The Commissioners of the Presbyterian Church in WA T/A Braemar Presbyterian Care
(C2016/3485 to C2016/3497)

COMMISSIONER WILLIAMS PERTH, 30 MAY 2016

Variation of redundancy.

[1] This decision concerns 13 applications by the Commissioners of the Presbyterian Church in WA T/A Braemar Presbyterian Care (Braemar or the applicant) to vary the redundancy pay to which one of their previous employees would be entitled. The application is made under section 120 of the Fair Work Act 2009 (the Act).

Background

[2] Braemar operates a number of aged care facilities.

[3] Braemar has outsourced the catering services it provides to the residents in its aged care facilities.

[4] As the end consequence of this decision the positions of 13 employees who had been employed by Braemar were made redundant. Each of these employees were offered employment with the incoming contractor Cater Care.

[5] Braemar by these applications is seeking to reduce the redundancy pay that would otherwise be payable to the employees on the ground that they have obtained other acceptable employment for each of the employees.

[6] Of the 13 employees subject to these applications four have opposed their respective applications to which they are respondent.

[7] Notwithstanding nine of the employees subject to these applications have not opposed Braemar’s application the Commission is still obliged to determine Braemar’s application.

The evidence

[8] At the hearing of this matter evidence was given by Bremer’s Chief Executive Officer Mr Glenn Muskett. His evidence was that Braemar decided to contract out the catering services to an external provider Cater Care. Steps were taken to minimise any adverse impact of the change on Braemar’s staff. It was his intention that all employees affected would be given employment with Cater Care or alternatively in any other suitable role within Braemar. He saw redundancy as a last resort and only after other options in relation to on-going employment had been exhausted.

[9] Evidence was also given by Ms Cherie Atchison (Ms Atchison) Braemar’s Executive Manager Corporate Services. Ms Atchison was involved in the contract negotiation process with Cater Care. As part of those negotiations Braemar secured an agreement with Cater Care that they would employ all affected employees of Braemar if those employees chose to transfer to the job offered by Cater Care. This involved some additional cost to Braemar in the final contract struck between Braemar and Cater Care.

[10] It was also a term of the agreement between Braemar and Cater Care that they would honour the affected employees date of commencement with respect to their long service leave and the employees who transferred to Cater Care would continue to be covered by the Braemar Presbyterian Care Employees Agreement 2013 (the Agreement) [AE413633].

[11] Evidence was also given by Ms Renae Reid (Ms Reid) Braemar’s Manager of Human Resources. Her evidence was that a meeting was held on 1 February 2016 where employees were informed of the changes whereby the catering services would no longer be undertaken by Braemar but would be outsourced to Cater Care.

[12] She says that from 1 February 2016 affected employees were informed that Braemar would be working in partnership with Cater Care to ensure that all staff who wish to continue working on Braemar aged care facilities by transferring their employment to Cater Care would be given the opportunity to do so.

[13] Between 4 February 2016 and 18 February 2016 six meetings were held with the affected employees, all of which were attended by human resource staff. The majority of these meetings were to assist affected employees complete applications for Cater Care.

[14] Employees who were on annual leave were contacted to discuss the change and their options.

[15] Ms Reid also assisted the affected employees by where necessary negotiating with Cater Care to increase the hours or improve the shift arrangements Cater Care offered to individuals.

[16] Employees who were offered positions with Cater Care but not at the same level they had held previously with Braemar were advised that Braemar intended to apply to the Commission for their redundancy to pay to be reduced. Each employee subject to such an application was asked by Braemar to sign a letter if they agreed to the reduced redundancy pay figures Braemar were proposing. Some employees did not sign such letters and their decision was respected.

[17] Three employees gave evidence at the hearing, Ms Cheryl-Ann Smith (Ms Smith), Ms Nada Samarin (Ms Samarin) and Ms Jane Miller (Ms Miller).

[18] Ms Smith was on annual leave when she was contacted about the changes. Her evidence was that she has been in employment with Braemar since November 1995. She was disappointed to learn that catering was to be outsourced. She was encouraged to apply for a position with Cater Care. After having an interview with Cater Care she was offered 30 hours per week which meant she would be losing 10.5 hours per fortnight. She would also be unable to salary sacrifice with Cater Care.

[19] Of the shifts she was offered by Cater Care two had a three hour break in between.

[20] As a consequence of the loss of hours she declined the offer of employment from Cater Care.

[21] She did not consider that Braemar got her the position with Cater Care as she had to go through the interview process. She does not consider that Braemar’s proposed redundancy payment of $1984.56 is a reasonable redundancy payment for 20 years of loyal service. She says she had accumulated sick leave and she did not believe the Cater Care were prepared to take over her years of service for future redundancy.

[22] The application made by Braemar with respect to Ms Smith indicates she was paid an hourly rate of $23.63. She worked a total of 35.25 hours per week. This was made up of 30 hours per week on average as a Senior Support Worker and 5.25 hours per week on average as a Support Worker.

[23] A letter from Cater Care to Braemar dated 22 March 2016 states that they had offered employment to Ms Smith as a Catering Assistant working 30 hours per week at the same hourly rates. The letter states that her start date with Braemar will be recognised by Cater Care. There is no evidence before the Commission as to the days of the week she will be rostered to work.

[24] Ms Smith declined this offer of employment.

[25] Braemar’s application is that based on Ms Smith’s length of service entitling her to a full redundancy pay of 16 weeks they seek the Commission reduce this to the amount of $1985 which is a proportional amount based on the loss of hours of 5.25 per week if she had of accepted employment with Cater Care.

[26] Ms Samarin gave evidence that on her behalf Mr Williams Miller (Mr Miller) had sent a number of letters to Braemar complaining about the situation.

[27] Ms Samarin has been employed since 1995. At the time of her position being made redundant she worked both as a Cook–unqualified and as a Support Worker.

[28] In the Cook–unqualified position she worked an average of 14 hours per week and as a Support Worker she worked another 14 hours per week 28 hours per week in total. Her hourly rate was $22.47 as a Cook–unqualified and 21.46 as a Support Worker.

[29] Cater Care offered Ms Samarin employment as a Catering Assistant working 26 hours per week at the hourly rate of $22.47; the higher of the two rates of pay she was receiving from Braemar. The offer of employment states that her start date with Braemar would be recognised by Cater Care. The evidence is not clear as to what days of the week she will be required to work.

[30] Ms Samarin did accept the employment with Cater Care.

[31] Her evidence was that the offer from Cater Care involved some reduction in responsibility because she would no longer be doing any cooking duties. She understood Cater Care’s position was that some increase in hours might be possible in the future but it could not be guaranteed. She complains that so far she has been just washing dishes.

[32] Braemar’s application is that based on Ms Samarin’s length of service entitling her to a full redundancy pay of 16 weeks they seek the Commission reduce this to the amount of $719 which is a proportional amount based on the loss of hours of 2 hours per week she has experienced accepting employment with Cater Care and calculated using the higher of the two rates of pay she was receiving from Braemar.

[33] Ms Miller gave evidence that on her behalf Mr Miller had sent a number of letters to Braemar complaining about the situation.

[34] Braemar’s application indicates that Ms Miller was employed in February 2012 and so has a little over four years’ service. She was employed as a Support Worker on an hourly rate of $21.46.

[35] Ms Miller averaged 19 hours per week. She worked only Saturdays and Sundays working 9.5 hours on Saturday and 9.5 hours on Sunday.

[36] Cater Care offered her a position as a Catering Assistant working 10.5 hours per week on the same hourly rate. The letter of offer indicated that they would recognise her original start date with Braemar.

[37] Ms Miller declined to accept the offer of employment from Cater Care.

[38] Ms Miller’s evidence was that the Cater Care offer of employment was inadequate and not suitable due to the reduction in hours and the loss of penalty payments and having to work Saturday and Sunday and now Monday, three days a week, rather than two as she had at Braemar.

[39] Cater Care were offering 3.5 hours on each of those three days which meant a significant pay reduction when the penalties for Saturday and Sunday were considered.

[40] Ms Tessa Widlake (Ms Widlake) did not attend the hearing however she has provided a statement. Ms Widlake raises some concerns about payments generally which however are not relevant to this application. Her statement complains that she has lost her title of Support Worker and views the title of Catering Assistant as a demotion which may lead to a lower rate of pay in the future. Ms Widlake explains that the process altogether has been very stressful and upsetting for her.

[41] Ms Widlake was not present to be cross-examined by the applicant.

[42] Braemar’s application with respect to Ms Widlake indicates that she was employed in January 2012 and has just over four years’ service. She is employed in the position of Support Worker with a hourly rate of $21.46. Her average weekly hours with Braemar were 12.

[43] Cater Care have offered and Ms Widlake has accepted a position as a Catering Assistant working 20 hours per week at the same hourly rate. The letter indicates that Cater Care will recognise her start date with Braemar.

[44] I am satisfied that the Agreement applied to the employment of the affected employees whilst employed by Braemar and continues to apply to those employees’ employment where they have accepted employment with Cater Care.

Consideration

[45] Clause 32−Introduction of Change and Redundancy of the Agreement provides for redundancy pay at 32.4 and at 32.4 (e) that:

“Where suitable alternative employment has been offered to an employee and that employee has declined the position, redundancy payment shall not be made.”

[46] The relevant sections of Act are set out below.

“Subdivision B—Redundancy pay

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.”

[47] A Full Bench of the Commission in The Maritime Union of Australia v FBIS International Protective Services (Aust) Pty Ltd 1 considered whether there is an entitlement of the relevant employees to be paid an amount of redundancy pay by the employer because of section 119 of the Act when an agreement that applies to the employee also includes a provision providing for redundancy pay. The Full Bench found:

“[24] Section 55(6) of the Act relevantly provides that if an enterprise agreement includes terms permitted by ss.55(4) or (5) then if such terms give an employee an entitlement that is the same as an entitlement under the NES, the enterprise agreement terms operate in parallel with the employee's NES entitlement, but not so as to give the employee a double benefit, and the provisions of the NES “relating to the NES entitlement apply, as a minimum standard” to the enterprise agreement entitlement.

[25] Clause 2.5.2.1 of the FBIS Agreement contains a term that gives an employee an entitlement to redundancy pay that is the same as the NES entitlement, although it is not clear whether the precondition that an employee "is made redundant by the Company" under the FBIS Agreement has the same meaning as the preconditions to the entitlement in s.119(1) of the Act. Nonetheless to the extent that the FBIS Agreement provides the same entitlement to redundancy pay as the NES entitlement, the entitlement to redundancy pay may be sourced both in the FBIS Agreement and in the NES because they "operate in parallel". The entitlement may be enforced under either source but not both sources so as not "to give a double benefit". This is the effect of s.55(6). This construction is clear in the words of s.55(6) but lest there be doubt, the construction is also consistent with the explanation of the provision in the Supplementary Explanatory Memorandum to the Fair Work Bill 2008, which provides:

“24. The amendments make clear that an enterprise agreement can include terms that are the same (or substantially the same) as an NES entitlement. These could be terms which simply replicate the NES or terms that make ancillary or supplementary provision in relation to the NES and subsume the NES entitlement. This means that an employer can make a comprehensive enterprise agreement with the employer's employees.

25. Such terms operate in parallel with the NES entitlement, and do not confer a double entitlement. The same applies to terms of modern awards that are ancillary or supplementary to a NES entitlement. This means that a NES entitlement can be sourced both in the NES and in an enterprise agreement or modern award and can be enforced as an entitlement under either. Also, the mechanisms contained in the agreement are available to resolve any dispute about the entitlement.” [Our emphasis added]

[26] However the entitlement to redundancy pay under the FBIS Agreement does not operate writ large. Whilst it is possible for an enterprise agreement to provide for a term which requires a redundancy entitlement to be paid unencumbered by s.120 of the Act, the FBIS Agreement does not so provide. Clause 2.5.5 of the FBIS Agreement contains exclusions, clause 2.5.5.1(c) of which provides that the redundancy clause shall not apply:

“…in a particular redundancy case if the Company arranges suitable alternative employment for the Employee; or the Employee unreasonably refuses to accept such employment”

[27] It is immediately apparent that the effect of this exclusion is that redundancy entitlements under the FBIS Agreement are not payable at all in the circumstances contemplated by the exclusion. For present purposes it is not necessary to decide whether there is any material difference between the phrase "obtains other acceptable employment" in s.120 of the Act and "arranges suitable alternative employment" in clause 2.5.5.1(c). Under clause 2.5.5, unlike s.120, there is no requirement for an application to be made to the Commission before the exclusions may be invoked and there is no possibility in the circumstances contemplated by the exclusions for a reduction of the entitlement rather than a complete loss of the entitlement. It cannot therefore be said that the clause is ancillary or incidental to, or supplements the NES within the meaning of s.55(4) of the Act because to the extent identified above, it is detrimental to an employee. Nor can it be said that the exclusions term in clause 2.5.5 has the same or substantially the same effect as any provision of the NES. Even if it were such a term it cannot displace s.120 by reason of s.61(1) of the Act.

[28] Moreover, to the extent that it was submitted that s.120 was excluded by operation of clause 2.5 of the FBIS Agreement, the submissions, in the circumstances of the exclusions in clause 2.5.5, flies in the face of s.55(1) and if it so operated it has no effect by reason of s.56 of the Act.

[29] To the extent that the redundancy pay entitlement in clause 2.5.2 provides an entitlement that is the same as the NES entitlement in s.119 within the meaning of s.55(5) then as s.55(6)(b) makes clear the provisions of the NES relating to the NES entitlement apply as a minimum standard to the enterprise agreement entitlement that is the same as the NES entitlement.

[30] It seems clear to us that s.120 of the Act is a provision of the NES relating to the NES redundancy pay entitlement in s.119. For reasons already given, it is not as suggested by the Appellant, excluded by the express terms of the FBIS Agreement. Rather it continues to apply as a minimum standard to the redundancy pay entitlement under the FBIS Agreement that is the same as the NES entitlement. In our view, this construction is consistent with the statutory note found at the end of s.55(6) of the Act which provides:

“Note: For example, if the award or agreement entitlement is to 6 weeks of paid annual leave per year, the provisions of the National Employment Standards relating to the accrual and taking of paid annual leave will apply, as a minimum standard, to 4 weeks of that leave.”

[31] It is also consistent with the explanation of this provision in the Supplementary Explanatory Memorandum to the Fair Work Bill 2008, which provides:

“28. The amendments made by this item also make clear that where:

• an enterprise agreement contains terms that are the same or substantially the same as a NES entitlement, or terms that are ancillary or incidental to, or which supplement, a NES entitlement; or

• a modern award contains terms that are ancillary or incidental to, or which supplement, a NES entitlement,

the provisions in the NES that relate to that entitlement (e.g., in relation to rate of accrual of leave, or what notice must be given to access an entitlement) apply to the entitlement in the award or agreement (as a minimum standard) to the extent that the award or agreement entitlement is the same as the NES guaranteed entitlement.” [Our emphasis added]

[32] The construction we prefer also gives full effect to s.61 of the Act. The construction argued for by the Appellant would displace the NES redundancy entitlement in s.119 and the NES standard relating to that entitlement found in s.120. The NES entitlement would not operate in parallel with the enterprise agreement entitlement, while the NES standard related to the NES entitlement it would not apply as a minimum standard to the enterprise agreement entitlement, and the exclusion of the entitlement would be subject to a less stringent test. As we have indicated above, an enterprise agreement may expressly or by necessary implication allow the NES redundancy entitlement to operate without the strictures in s.120 of the Act. That is, it might allow an employee an entitlement even if an employer obtained acceptable alternative employment for the employee. This would be a term that fell within s.55(4) of the Act. Clause 2.5.5.1(c) is not a term that has that effect, to the contrary it is detrimental to the employee.

[33] It follows that the Commissioner had power to reduce the amount of redundancy pay under s.120 of the Act that would otherwise have been payable to the employees under s.119 of the Act as the employees were entitled to be paid an amount of redundancy pay because of that section. No appellable error has therefore been disclosed.” (References omitted)

[48] Similarly in this case I am satisfied that the Commission does have the power to reduce the amount of redundancy pay under section 120 of the Act that would otherwise have been payable to the affected employees under section 119 of the Act.

[49] With respect to the question of whether in this case the employer has “obtained” other acceptable employment for the employees the evidence is clear that Braemar in engaging Cater Care required it is a term of the contract between them to offer employment to the affected employees wherever possible and required that Cater Care would adopt the employees start date with Braemar as the start date recognised by Cater Care. Braemar also directly assisted the employees to complete applications for the positions with Cater Care.

[50] I am satisfied that Braemar was a strong, moving force towards the creation of the available opportunity and caused the alternative employment to become available to the affected employees. I am satisfied that Braemar in each case did obtain the other employment for the employees with Cater Care.

[51] The question then is whether the alternative employment obtained by Braemar was other acceptable employment.

[52] What the Commission is required to consider when determining whether the other employment obtained by the employer is “other acceptable employment” was also considered in the Full Bench decision mentioned above. The Full Bench explained as follows with reference to the decision then under appeal:

““Acceptable employment”

[59] Commissioner Gregory noted that the tests to be applied in determining what is “acceptable alternative employment” are to be applied objectively. He noted that the decision in Derole Nominees indicated that the work being of a like nature, the location, pay arrangements, hours of work, seniority, fringe benefits, workload and job security are all relevant considerations in this context and found that there was no requirement that the new employment be identical, or broadly comparable. Relying on authorities cited by him, the Commissioner found that “the existence of some detrimental alteration to employment conditions does not mean that acceptable alternative employment has not been obtained”.

[60] The Commissioner gave consideration to the loss of non-transferable credits in respect of accrued service, such as personal or long service leave entitlements, accepting it to be a factor to be taken into account in determining whether that employer had obtained adequate acceptable employment for the employees. The Commissioner concluded that the weight of evidence was that there had been little or no change between what existed when the employees were employed by the Respondent and by ACG.

[61] The Commissioner found that “the overwhelming majority of the employees have been engaged by the new contractor on terms and conditions of employment that are essentially the same as those that applied when they were employed by FBIS”. Read in context, the reference to the overwhelming majority of employees is a reference to employees other than Ms Pickering.

[62] Having regard to the authorities cited by Commissioner Gregory and the evidence before him, we are satisfied that his finding that the employment with ACG was acceptable employment was reasonably open to him, notwithstanding the detriment occasioned to some employees through the loss of accrued service with the Respondent.” (References omitted)

[53] In this case the evidence is that the alternative employment obtained by Braemar with Cater Care for the affected employees involves them effectively continuing to work in the same workplace, under the same pay arrangements as previously applied specifically in that they will continue to be employed under the same Agreement which prescribes all their respective rights and entitlements. The evidence is also that Cater Care has recognised their start dates with Braemar. In general terms there is no detrimental alteration to the employment conditions.

[54] For some employees there has been an alteration to the positions they will be working in or to the hours they work. Some employees have accepted positions with Cater Care which involve a few less or sometimes more hours than they had been working previously with Braemar.

[55] The situation here can be contrasted starkly with what is sometimes the case that the employees are offered alternative employment with a different employer in a totally different location to where they had previously worked and sometimes in quite a different industry. Even in such circumstances, subject to a comparison of the other relevant issues, that alternative employment may be judged to be other acceptable employment and as a result the employees have no entitlement to redundancy payments.

[56] Other than for Ms Smith, Ms Samarin, Ms Miller and Ms Widlake I am satisfied that the other employment Braemar obtained for the affected employees with Cater Care is other acceptable employment. Consequently for these employees, having considered the particular circumstances of each employee in terms of the difference in hours of work of the redundant position to the new position and in some instances the difference in classification I am satisfied it would be appropriate for the amount of redundancy pay to which they would be individually entitled to be reduced to the specified amount as set out below.

Employee	Redundancy amount
Ms Simone Reeves	Nil
Ms Ridiah Arnott	Nil
Ms Tina McClennan	Nil
Ms Lei Hong	Nil
Ms Premdeep Sharma	Nil
Ms Jackie Botica	$257.49
Ms Susan Dunn	$1287.45
Ms Carol Acosta	$3504.75
Ms Celerina Nidoy	$708.10

[57] Turning then to consider the applications concerning Ms Smith, Ms Samarin, Ms Miller and Ms Widlake.

[58] The detriment identified by Ms Smith in the alternative employment offered with Cater Care is the loss of 5.25 hours of work per week and no longer doing any work as a Senior Support Worker.

[59] Clause 8−Definitions of the Agreement includes the following definitions:

““Support Worker”- means an employee who is required to operate in only one position, for example, cleaner, kitchen/food services assistant, laundress.

…

“Senior Support Worker” means an employee who is primarily engaged to perform cleaning and/or laundry and/or kitchen duties where the employee will be primarily employed in one of the above functions, and oversees the work of other employees in one or all of the above functions. A Senior Support Worker position will be available by appointment only.”

[60] I accept there is some detriment to Ms Smith in these changes however the position of Senior Support Worker as defined is by appointment only and there could never have been a guarantee that this position would have always continued to be available to her while she remained at Braemar. If she had accepted the position at Cater Care given her experience and length of service it is likely that in future if similar Senior Support Worker position became available that she would be positively considered for that.

[61] In the circumstances I am satisfied that the other employment Braemar obtained for Ms Smith with Cater Care was other acceptable employment. Consequently I am satisfied it would be appropriate for the amount of redundancy pay to which Ms Smith would have been entitled be reduced to $1985.

[62] Ms Samarin was earning 14 hours x $22.46 + 14 hours x $21.46 making a total of $614.88 per week. Cater Care are paying her for 26 hours x $22.46 making a total of $583.96. This amounts to a reduction in working hours of 7% but of pay reduction of only 5%. Whilst the loss of the opportunity to work half her hours in a cooking role I accept is of some significance to Ms Samarin there could never have been a guarantee that this role would have always continued to be available whilst employed by Braemar and conversely it cannot be ruled out that in future Cater Care did not offer her a cooking role if one becomes available.

[63] In the circumstances I am satisfied that the other employment Braemar obtained for Ms Samarin with Cater Care was other acceptable employment. Consequently I am satisfied it would be appropriate for the amount of redundancy pay to which Ms Samarin would have been entitled be reduced to $719.

[64] Ms Miller was employed with Braemar each week 9.5 hours on Saturday and 9.5 hours on Sunday. Cater Care offered her 3.5 hours on Saturday, 3.5 hours on Sunday and 3.5 hours on Monday.

[65] Relevantly clause 20−SHIFT AND WEEKEND PENALTIES states:

“20.4 All work performed during ordinary hours on a Saturday shall be paid at the rate of time and one half and on a Sunday at the rate of time and three quarters.”

[66] Whilst working with Braemar the calculation of her pay would have been as follows:

Saturday 9.5 x (21.46 x 1.5) = $305.80
Sunday 9.5 x (21.46 x 1.75) = $356.77
Total $662.57

[67] If she had accepted employment with Cater Care then the calculation of her pay would have been as follows:

Saturday 3.5 x 21.46 = $75.11
Sunday 3.5 x 21.46 = $75.11
Monday 3.5 x 21.46 = $75.11
Total $225.33

[68] If Ms Miller had accepted the offer of employment with Cater Care this would have seen her weekly pay reduced by 66%.

[69] A reduction in earnings between a redundant position and a new position will not automatically mean the new position is not acceptable alternate employment, however the reduction in earning in Ms Miller’s case is very substantial. As a consequence of this large reduction in weekly pay I am not satisfied that the job for Ms Miller with Cater Care was other acceptable employment.

[70] As a consequence of this finding there will be no reduction in the amount of redundancy pay owed to Ms Miller by Braemar under section 119 of the Act.

[71] With respect to Ms Widlake it is not apparent that she has suffered any detriment in accepting the offer of employment with Cater Care. Whilst she is working additional hours she is being paid the same hourly rate she was previously for those additional hours.

[72] In the circumstances I am satisfied that the other employment Braemar obtained for Ms Widlake with Cater Care was other acceptable employment. Consequently I am satisfied it would be appropriate for the amount of redundancy pay to which Ms Widlake would have been entitled be reduced to nil.

[73] An order to this effect will be issued in conjunction with this decision.

COMMISSIONER

Appearances:

S Farrell of the Chamber of Commerce & Industry of Western Australia for the applicant.

C Smith on her own behalf.

W Miller on behalf of Ms Samarin and Ms Miller.

Hearing details:

2016.

Perth:

May 16.

 1   [2014] FWCFB 6737.

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