The ORS Group Pty Ltd T/A The ORS Group

[2018] FWC 4820

[2018] FWC 4820

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.120—Redundancy pay

The ORS Group Pty Ltd T/A The ORS Group
(C2018/3457)

COMMISSIONER WILLIAMS PERTH, 16 AUGUST 2018

Variation of redundancy pay.

[1] This decision concerns an application by The ORS Group Pty Ltd (the Applicant or ORS) to reduce the amount of redundancy pay to which an employee, Ms Jessveen Kaur (Ms Kaur), is entitled under section 119 of the Fair Work Act 2009 (the Act).

[2] The parties were directed to provide submissions and witness statements regarding this matter.

Factual findings

[3] ORS is involved in workplace rehabilitation, injury prevention, disability, psychological and training services. ORS offers a range of services to injured workers, people with disability, employers and insurance agents.

[4] Ms Kaur has been employed with ORS since 2012.

[5] Ms Kaur was most recently employed as a Site Manager. She was employed part-time, nine days per fortnight. Her annual salary was $64,260. She worked at Gosnells in Western Australia.

[6] By email dated 1 May 2018 to all employees Mr Peter Scott the ORS Managing Director explained the situation which was impacting ORS employees generally and that it could result in some redundancies.

[7] However he explained that a separate business Serendipity (WA) Pty Ltd T/A Advanced Personnel Management (APM), had agreed to employ a significant number of ORS staff but not all.

[8] In May 2018 Ms Kaur was advised that her position as a Site Manager was to be made redundant.

[9] She has subsequently advised that ORS had obtained other employment for her at APM as an Employment Consultant.

[10] On 22 May 2018 she was sent a letter of offer. This letter stated she was being offered employment with APM. The letter detailed the terms and conditions and included the position description of the other employment. The position was as an ES DES Employment Consultant.

[11] The letter of offer relevantly detailed that she would be located at Gosnells and work part-time, nine days per fortnight. Her salary would continue to be $64,260.

[12] The letter of offer detailed that APM would recognise, for the purposes of length of service and associated employee in entitlements, her service with ORS with a commencement date of 8 October 2012. It also stated that her transferring employee entitlement balances with ORS, if any, for personal, annual and long service leave will be honoured by APM.

[13] Ms Kaur did not accept the offer of other employment at APM.

[14] Relevant extracts from the Job/Position Description of the redundant Site Manager position and of the Employment Consultant position are reproduced below:

The redundant position at ORS

Position: Site Manager

Role Type: Manager Level 1 Grade: Manager Grade 1

Purpose/Objective: Strategic and high quality leadership of a Disability Employment Services site to achieve a positive 3 and above star rating by assisting Participants to overcome barriers to employment, maximising 13, 26 and 52 week milestones and providing quality post placement and ongoing support, in a manner reflecting The ORS Group’s mission and values.

Directly Reports To: Area Manager

Key Result Areas

Service Delivery

Training and staff development:

•  Review all staff KPIs for the prior month and set up KPI discussion schedule (to be completed weekly for those not meeting KPI and those in Performance Management).

•  Complete KPI Discussions for all staff monthly.

•  Completion of induction checklists for all new staff members, ensuring this is completed to a high level

•  Provide one-on-one structured training weekly with staff as a result of suggestions from KPI discussions, performance reviews, induction checklists or performance management requirements. This training should include, but is not limited to:

○  Conducting action focused and effective appointments;

○  How to conduct labour market research/reverse marketing/job development;

○  How to complete effective post placement support;

○  How to complete effective Ongoing Support including correct Documentary Evidence.

All training must be entered into ConnX and marked off on induction checklists as required.

•  Run quality Morning Meetings daily and include:

○  All important emails sent from day prior or weekly bulletins;

○  Any other relevant information to the site/staff;

○  Heads up and PPS boards (see below structure);

○  Any serious Participant incidents that staff need to be aware of for safety reasons;

○  Daily compliance reminders e.g. payslip evidence, program reviews/summaries, minimum contacts, JSCIs etc;

○  EAM attendance and update on marketing and jobs etc.

•  Sit in on appointments with staff to verify that they are following ORS processes (e.g. writing file notes and completing compliance actions), to provide training and ensure that Participants have strong strategies in place

•  Site Managers should sit in with EC client appointments wherever possible to provide training and address any compliance/performance issues. Where Site Managers have a small or zero caseload they should aim to sit in on one appointment per day

Claims:

•  Review the Potential Payments tracker in full weekly to ensure that all information is completely up to date and no claims missed / marked incorrectly. All applicable comments must be entered. ECs must be present whilst this is completed so that they are receiving training and understand where all claims are up to.

•  Review all claims becoming available within the next 2 weeks with each EC weekly and ensure that they understand what claims evidence will be required and first date this can be printed (these reviews must include a check for any breaks that need to be entered before the claimable date).

•  Check and upload all received claims evidence daily including providing immediate training to staff where any issues have been identified and gathering new evidence asap.

•  Assist with chasing any outstanding claims evidence including Outcomes, Job Placement Fees and Payslips.

Post Placement Support (PPS)/Ongoing Support (OS):

•  Conduct full review of all PPS per EC in IIGNITE weekly to ensure that this is being conducted as per internal procedures and regularly enough based on the Participant’s needs.

•  Complete the PPS for any staff on annual leave or PPS allocated due to staff leaving.

•  Review all Participants in OS at the site each week and ensure that all will meet minimum contacts requirements and that the notes are sufficient and entered in IIGNITE.

•  Review OS Audits completed by Performance Specialist (OS) with the EC making sure the plan is appropriate and all actions are being carried out if appropriate.

Performance:

•  Conduct full review of the site’s performance each week, and month to date, including:

○  Placements

○  Outcomes

○  Ongoing Support (percentage in OS and claims made etc)

○  52 week indicator

○  Tolerance

○  Pending lists

○  Site KPIs and individual staff KPIs

All of the above must be considered when scheduling the tasks required for the following week and the KPI discussions that will occur. Any additional resources, support or advice should be obtained immediately based on this review.

•  Complete Partial/Nil, last declared earnings and non-declaring actions as scheduled during the monthly review.

•  Completion of site PPS for any Participants whose EC is no longer working for ORS, as allocated by Area Manager or Assistance General Manager (AGM).

•  Complete full review and schedule in meeting times/actions based on the information provided in the Partial/Nil, last declared earnings and non-declaring reports each month.

•  Assist with the marketing and re-placement of all 52 week priority Participants.

•  Review 52 week indicator Job Fall Out Assessments (52weeks) completed by Performance Specialist with the EC making sure the plan is appropriate and all actions are being carried out.

General:

•  Ensure SM is following the Site Manager Checklist to ensure all actions are carried out as required.

•  Complete review of all outstanding/upcoming compliance or performance requirements by reviewing the Compliance Dashboard report weekly and scheduling in time to sit with each EC and action required tasks.

•  Check the diary and ensure that all appointments have been marked correctly by COB each day (e.g. all have a result, not using DNAV etc.)

•  Call all suspended Participants weekly to ensure that any who are working are engaged or those wanting to participate have a volunteer period applied and future appointment scheduled (calling Participants who have previously advised that they do not wish to participate is not required weekly).

•  Review all transfer requests – in and out of the site weekly.

•  Review case load numbers weekly to ensure the site is sufficiently resourced, and escalate any issues to the Area Manager. Where possible ensuring caseloads are split into separate contracts per EC, unless previous approved by AGM or where specified language requirements are needed

•  Allocate newly referred Participants to appropriate ECs daily (ensure all have a future appointment booked to attend within 3 days).

•  Check Caseload report in ESS Web daily and ensure all Participants have a future appointment (except those with pending NARs) – action immediately with the ECs where this is not the case.

•  Ensure sufficient open timeslots are available in the ESS Web diary weekly (for upcoming weeks).

•  Review IIGNITE for any outstanding PPS or Purchase Order (PO) notifications/approvals daily.

•  Review outstanding noticeboard activities and any emails from Compliance/Performance teams and ensure all are actioned by COB each day e.g. OS Assessments (OSA), out of time (OOT) claims, OS instances requiring action, future appointments required, activities that are Expected to Start and Nearing Completion etc.)

•  Assess all requests to spend funds on Participants and ensure it is in line with the Participant Expenses procedure.

•  Ensure the ORS office is tidy, safe and well presented

•  Monitor the use of Petty Cash, Vouchers and Other Tickets, and ensure that the internal procedures are followed for all areas

•  Prioritise all responses and actions regarding DSS site visits or compliance exercises

•  Handle all incidents and complaints as per internal policies and procedures

•  Collate and encourage site compliments

•  Send weekly schedule to Area Manager by COB every Friday

•  Attend all meetings and/or training sessions as required

•  Attend regular PAGES meetings and any other meetings relevant to site performance and/or growth.

Management

•  Recruit: Follow The ORS Group’s Recruitment and Selection Process to recruit high quality applicants including new hires, promotions and transfers

•  Induct: Orientate new employees including those that have been transferred or promoted using relevant company and service area induction material

•  Train: Manage training and development requests for direct reports through the ConnX system in consultation with HR, and provide direct reports with on-the-job training in all aspects of their role as needed

•  Performance Management: Undertake effective performance management of all direct reports including the completion of regular performance reviews

Qualifications

•  Cert IV in employment services, disability or similar preferred but not essential

•  Cert IV in Frontline Management or similar preferred but not essential

The other employment at APM

Position title: Employment Services - Employment Consultant

Reports to: Business Manager

Position purpose: As an Employment Consultant your role will be to assess the needs of the Participant, identify barriers to employment and provide a solution focused approach to assist the Participant in achieving ongoing employment. This role will include job searching activities that may include job clubs or one on marketing.

Key responsibilities:

Strategy development:

•  Positively work towards APM’s strategic goals

Marketing and sales:

•  Establish and maintain strong community and employer connections. Building awareness of who APM are, what we do and establishing confidence to ensure we are the service provider of choice will help with referrals of jobseekers and employers

•  Develop a network of employers and community organisations to ensure you are moving your jobseekers towards suitable, sustainable employment outcomes

•  Ensure you are actively marketing your jobseekers to achieve personal and team KPIs

Service delivery:

•  Adhere to relevant departmental and APM guidelines, policies and performance standards

•  Build strong relationships with local referring organisations to support business growth

•  Build and maintain relationships with Participants as per contractual requirements

•  Provide pre-employment assistance through the identification of Participants skills and abilities

•  Identify strategies to increase Participant capacity for sustainable employment, through vocational counselling, training and job search skills

•  Build and maintain relationships with community employers and businesses.

•  Reverse market Participants to community employers and businesses in order to source suitable, sustainable employment

•  Develop and maintain up to date individual jobseeker plans in conjunction with the Participant

•  DES specific:

•  Ensure jobseekers have a flexible servicing environment that suits their individual needs to successfully attain employment

Customer service:

•  Consistently demonstrate high level communication skills when liaising with participants, external and internal stakeholders

•  Conduct all participant, employer and network interactions with professionalism and a high level of customer service

•  Consistently demonstrate flexibility and a willingness to meet and adjust to changing management and operational needs

•  Positively contribute to the team dynamic

•  Participate and positively contribute to staff meetings, internal and external training

IT:

•  Adhere to all APM’ policies around communication and IT systems

•  Maintain accurate file notes on each participant contact and undertake required system administration

•  Ensure all documentation is accurate, up to date and submitted within set timeframes

External relationship management:

•  Maintain positive and productive relations with local government, quasi-government bodies and industry groups

•  Maintain relationships with local employers and community organisations

Knowledge management / continuous improvement:

•  Work with the management team to ensure you maintain current knowledge of your role and use the one on ones and team meetings to table continuous improvement ideas.

[15] It is apparent from the above that the purpose and key responsibilities of the two positions are very different. This is reinforced by the fact that the KPIs for the two positions are also very different.

[16] The redundant position of Site Manager was a managerial and leadership role. The other employment at APM, as an Employment Consultant, was a role dealing directly with participants.

[17] Both positions are covered by the Labour Market Assistance Industry Award 2010 [MA000099] (the Award).

[18] The other employment, as an Employment Consultant, was classified under the Award as a Training and Placement Officer Grade 2 whereas the redundant Site Manager position was classified under the Award as a Manager Grade 1 1. The other employment was two classifications below the relevant Award classification of the redundant position.

[19] Schedule B- Classification Definitions of the Award includes the following,

“B.4.1 Training and Placement Officer Grade 2 means a multifunction employee who is engaged to provide direct services to participants and training courses, placement or support services and other programs and activities provided by the employer.”

and

“B.6.1 Manager grade 1 means a person engaged to manage the operations of a small to medium size service with a total weekly staffing of the service is less than 285 hours.”

[20] ORS submit that whilst Ms Kaur was the Site Manager she had no direct nor indirect reports. In this submission they did confirm that, consistent with the ORS job description, her duties included training and staff development, claims, PPS, monitor performance and general site duties.

[21] Ms Kaur has been a Site Manager for over two years.

[22] The qualifications specified for the Site Manager position were that a Cert IV in employment services, disability or similar were preferred but not essential and that a Cert IV in Frontline Management or similar was also preferred but not essential.

[23] There are no qualifications specified for the Employment Consultant position as being essential or preferred.

[24] Ms Kaur has a Bachelor of Arts Degree majoring in Psychology.

[25] Considering all of the above I find that the Employment Consultant position was a significantly less senior role than the Site Manager position.

The legislation

[26] Sections 119 and 120 of the Act are relevant for the purposes of this decision and 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.”

The issue - Other acceptable employment

[27] Considering these facts above the issue to be determined by the Commission is whether ORS obtained “other acceptable employment” for Ms Kaur. Only if it has obtained other acceptable employment must the Commission then consider whether to exercise its discretion to reduce the amount of redundancy pay payable and if so by what amount.

[28] As noted by the Full Bench in Australian Chamber of Manufacturers v Derole Nominees Pty Ltd 2 at 124:

“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.”

[29] As was explained by Watson SDP in Feltex Australia Pty Ltd v Textile, Clothing and Footwear Union of Australia 3 at [89]:

“...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.”

[30] In Clothing and Allied Trade Union of Australia v Hot Tuna Pty Ltd 4 a Full Bench of the Commission found that the determination of whether alternative employment is acceptable will involve a consideration of such matters as pay levels, hours of work, seniority, fringe benefits, workload and speed, job security and other matters including the location of the employment and travelling time.

[31] In National Union of Workers v Linfox Australia Pty Ltd 5 Watson VP considered the following criteria to be relevant when determining whether alternative employment is acceptable:

(a) the employee’s skills, experience and physical capacity;

(b) the rates of pay, hours of work, duties and conditions of employment associated with the proposed job;

(c) whether or not continuity of employment is provided to the employee;

(d) the extent of any additional travel distances from home to the new place of work and whether the employee has to substantially alter their method of travelling to and from work in order to attend to duty; and

(e) the level of any compensation.

[32] In my view the term “acceptable alternative employment” considered in this case law should be taken to have the same meaning as the term “other acceptable employment” which is used in section 120 of the Act and hence the case law is directly applicable in this matter.

Consideration

[33] In this case ORS submit that Ms Kaur was offered a role as an Employment Consultant with APM and this should be determined by the Commission to have been other acceptable employment.

[34] Firstly in this case I am satisfied that ORS had obtained for Ms Kaur this other employment as an Employment Consultant with APM.

[35] Ms Kaur was offered the employment as an Employment Consultant. The location where she would work was the same. The annual salary she would be paid was the same. Both positions were part-time, for nine days per fortnight. There would be no loss of leave accruals, these would be carried over to APM and honoured by her new employer. Her length of service with ORS was also to be honoured by APM.

[36] The question is whether the position obtained for Ms Kaur at APM was other acceptable employment. The fact that Ms Kaur’s redundant position and the other employment obtained for her at APM are not identical does not prevent the other employment from being other acceptable employment. It is also not Ms Kaur’s preference or personal opinion that is determinative. It is for the Commission to consider the question objectively.

[37] In this case some of the employment terms of the two positions are the same or very similar. These include the annual income, the hours of work and the location of the job. In addition there would be no loss of accrued leave entitlements and Ms Kaur’s service with ORS would be recognised for the future at APM. These are all matters that lend weight to concluding that the other employment at APM is objectively other acceptable employment.

[38] There are however in this case important differences between the two positions that weigh against concluding that the other employment at APM was other acceptable employment.

[39] There is no doubt that the nature of work to be undertaken in the Employment Consultant position is quite different from that Ms Kaur was doing in the redundant Site Manager position. The role and purpose of each position is different and the key responsibilities and duties to be undertaken are different. This is reinforced by the different KPIs for both positions. This weighs against concluding the other employment was acceptable.

[40] In addition the Employment Consultant position is a significantly lesser position in terms of seniority than was the Site Manager position. I agree with Ms Kaur that for her to move to the lesser position of Employment Consultant is the equivalent of a demotion. This would be a backward step for her. This also lends weight to concluding it was not other acceptable employment.

[41] Considering all of these matters my decision is that the other employment obtained by ORS as an Employment Consultant at APM is not in the particular circumstances of this case other acceptable employment for Ms Kaur.

[42] Consequently this application to reduce the redundancy payments that would otherwise be payable to Ms Kaur will be dismissed.

[43] There will be no reduction in the redundancy payments to which Ms Kaur is entitled.

[44] An order [PR609999] to that effect will now be issued.

COMMISSIONER

Final written submissions:

Applicant, 10 July 2018.

Respondent, 11 July 2018.

Printed by authority of the Commonwealth Government Printer

<PR609998>

 1   See clause 14-Minimum weekly wages of the Labour Market Assistance Industry Award 2010 [MA000099].

 2 (1990) 140 IR 123.

 3   PR974699.

 4 (1988) 27 IR 226.

 5   [2008] AIRC 647.