Viva Energy Australia Pty Ltd v Dan Amann

[2021] FWC 898

[2021] FWC 898

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.120—Redundancy pay

Viva Energy Australia Pty Ltd
v
Dan Amann
(C2020/7227)

COMMISSIONER MCKINNON MELBOURNE, 18 FEBRUARY 2021

Application to vary redundancy pay obligation – offer of suitable alternative employment.

[1] Viva Energy Australia Pty Ltd was the operator of a Joint Hydrant User Installation (JUHI), which is responsible for the bulk storage and distribution of jet fuel at Sydney Airport. It employed Dan Amann as a JUHI Supervisor/Operator. In this role, Mr Amann was responsible for operating the JUHI as part of a broader joint venture arrangement.

[2] On 30 September 2020, Viva Energy ceased to operate the JUHI following the appointment of a new entity, Skytanking Australia Pty Ltd, to the operator role.

[3] One consequence of the change of operator was that Mr Amann’s role became redundant. Viva Energy notified Mr Amann of the redundancy on 25 August 2020 and six days later, advised that it had secured Mr Amann another role within its business. On 2 September 2020, following a period of consultation, Mr Amann was offered alternative employment with Viva Energy as Shift Team Lead.

[4] Mr Amann did not accept the role and his employment terminated by reason of redundancy on 30 September 2020. Mr Amann commenced employment with Skytanking Australia on 1 October 2020.

[5] Viva Energy has applied to reduce Mr Amann’s redundancy pay to nil on the basis that it obtained other acceptable employment for Mr Amann. The question is whether the redundancy pay obligation should be reduced, and if so, to what extent.

The redundancy pay obligation

[6] Mr Amann’s total period of continuous service with Viva Energy was 12 years, comprising two years directly employed by Viva Energy and ten years with its associated entity, Zip Airport Services Pty Ltd after ten years’ service. He is entitled to 12 weeks’ redundancy pay under the National Employment Standards. There is no contention from Viva Energy that it cannot pay the amount.

The offer of alternative employment

[7] The offer of employment made by Viva Energy to Mr Amann was for the role of Shift Team Lead. There is no dispute that the offer was obtained by Viva Energy for Mr Amann. It was an offer by Viva Energy, for employment within Viva Energy’s business.

[8] Was it an offer of “other acceptable employment”?

[9] The terms and conditions of employment offered to Mr Amann in relation to the role of Shift Team Lead were generally equivalent to those applicable to his full-time role of JUHI Supervisor/Operator. The role was comparable in terms of status and seniority within the business, with each having equivalent reporting lines upwards and no direct reports. The level of remuneration was also the same except although the shift claim rate was lower. Proposed hours of work for the Shift Team Lead role represented a marginal improvement in that Mr Amann would no longer be required to work between the hours of midnight and 4.00am. Continuity of service, accrual of entitlements and job security were expressly preserved.

[10] Self-evidently, the role title was different. So too was the nature of the role. I prefer the evidence of Mr Amann in this respect. For Mr Amann, it meant moving from taking care of assets and product to managing people – with responsibility for shift coverage, flight coverage and aircraft delays. While aspects of the remuneration were lower, Mr Amann’s main concern was that he did not have the experience or desire to perform the role.

[11] From Viva Energy’s perspective, Mr Amann had the skills, experience, and physical capacity to perform the role of Shift Team Lead. He had worked in a number of similar functions within the business over the previous twelve years and had undertaken most of the training required to perform both that role and the role of JUHI Supervisor/Operator. The only substantive difference was that Mr Amann would be required to undertake specific ‘into-plane’ training, which was both within his capacity and something Viva Energy was proposing to provide.

[12] While the new role meant taking on a different kind of responsibility – managing people rather than assets – I accept the submission of Viva Energy that Mr Amann had the relevant skills, experience, and capacity to perform the role. By all accounts, he was a valued employee and would have risen to the challenge.

[13] I do not accept that taking on the role would have limited Mr Amann’s opportunities for career progression. The management of people and logistics is a skillset with application to an almost unlimited range of industries and environments. That said, I accept that Mr Amann was comfortable in the environment in which he worked and was not interested in the kind of transition proposed by Viva Energy. That was a reasonable position for Mr Amann to adopt and a choice available to him, but it does not render the offer made by Viva Energy unacceptable in an objective sense.

[14] The offer of employment made by Viva Energy would have largely mitigated the potential for loss to be incurred by Mr Amann as a result of the redundancy. On balance, I am satisfied that the offer of Shift Team Lead was an offer of “other acceptable employment”.

Should the redundancy pay obligation be varied?

[15] Viva Energy has met the conditions for a variation to the redundancy pay obligation. The question remains as to whether the obligation should be varied. In my view, it is appropriate that the amount of redundancy be reduced (but not to nil) in recognition of all the circumstances, including Mr Amann’s length of service, the offer made by Viva Energy to mitigate Mr Amann’s loss and Mr Amann’s commencement of employment with Skytanking Australia immediately upon his departure from Viva Energy.

[16] In the circumstances, the amount of redundancy pay to which Mr Amann is entitled under section 119 of the Fair Work Act 2009 will be reduced to four week’s pay.

[17] A determination to this effect will issue separately.

COMMISSIONER

Appearances:

M Fedeli of Herbert Smith Freehills for the Applicant.

D Amann on his own behalf.

Hearing details:

2021.

Melbourne (video hearing):

February 4.

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