Westpac Banking Corporation T/A Westpac
[2024] FWC 3113
•12 NOVEMBER 2024
| [2024] FWC 3113 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.120—Redundancy pay
Westpac Banking Corporation T/A Westpac
(C2024/5149)
| COMMISSIONER HUNT | BRISBANE, 12 NOVEMBER 2024 |
Variation of redundancy pay
Westpac Banking Corporation (Westpac) has made an application to the Fair Work Commission (the Commission) for a variation to the redundancy pay to be paid to Ms Samantha Dibden.
The application is made pursuant to s.120(b)(i) of the Fair Work Act 2009 (the Act) on the basis that Westpac asserts that it obtained other acceptable employment for Ms Dibden and this employment was refused by her.
Ms Dibden commenced employment with Westpac on 3 September 2018, most recently employed part-time as a Senior Customer Service Specialist based at the St George Cairns Branch. St George forms part of the Westpac Group portfolio of financial services brands and businesses.
On 31 March 2023, the St George Cairns Branch was permanently closed and the role performed by Ms Dibden was made redundant. Ms Dibden was on parental leave at the time and elected to delay redeployment opportunities until after she returned from parental leave, which was due to occur on 21 June 2024. After various discussions, on 25 July 2024, Ms Dibden confirmed to Westpac that she was declining the appointment of her to the role of Personal Banking Specialist at the Westpac Cairns Central Branch. On 29 July 2024, Westpac informed Ms Dibden that her employment was terminated because her substantive role of Senior Customer Service Specialist was redundant, and she had declined a directly comparable role.
Ms Dibden’s employment was covered by the Westpac Group Enterprise Agreement 2023 (the Agreement). Under the Agreement, Westpac has an obligation to make all reasonable efforts to redeploy an employee whose role has been made redundant into a directly comparable role. The Agreement provides a relevant definition of what is a directly comparable role.
The Agreement provides that if an employee does not accept a directly comparable role, they will not be entitled to the severance entitlements provided in the Agreement, although will still be entitled to notice and may be entitled to severance payments under the Act.
This decision does not determine if Ms Dibden is entitled to severance payments provided in the Agreement; this decision determines if Westpac obtained other acceptable employment for Ms Dibden and if so, whether the redundancy entitlement to be paid to Ms Dibden pursuant to s.119 of the Act should be reduced to an amount the Commission considers appropriate.
Legislation
As noted above, the application is made pursuant to s.120 of the Act which provides the following:
“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.”
Ms Dibden is entitled to seven weeks’ severance pay under the Act, being an amount of $11,244.89. Westpac seeks that Ms Dibden’s redundancy pay be varied to nil for the reason that it obtained other acceptable employment for her.
Conference
On 12 August 2024, I convened a telephone conference of the parties. Following the conference, I issued directions for the filing of material to advance this application to hearing. The parties later informed the Commission that they were content for the application to be determined on the papers. There being no factual contest between the parties, I was satisfied that the application could be determined on the papers without the requirement for a hearing.
Evidence of Mr William Richards
Mr William Richards is the State Operations Manager for Westpac and St George Retail, QLD. He has worked at Westpac for 13 years.
In October 2022, Westpac determined to permanently close a number of its branches, including the St George Cairns Branch where Ms Dibden worked. Ms Dibden was on parental leave, but during this time, participated in an employee consultation briefing via Microsoft Teams. Ms Dibden was supplied with written material in October 2022, detailing the branch closure.
Westpac provides employees on parental leave the option to commence redeployment immediately when their role becomes redundant or once they return from leave. Ms Dibden elected to commence redeployment when she returned from leave.
Ms Debbie English, Regional General Manager contacted Ms Dibden on 9 May 2024 to inform her that Westpac had identified a directly comparable role of Personal Banking Specialist at the Westpac Cairns Central Branch. On 20 May 2024, Ms Dibden informed Ms English that she was not interested in a branch-based role and would prefer a Lending Assistant role.
Ms Dibden was informed that she could apply for other roles within the Westpac Group, however if there were no other roles available and she did not return to the Personal Banking Specialist role at Westpac Cairns Central, she would no longer be employed. Ms English told Ms Dibden that she would make enquiries to see if any Lending Assistant roles were available.
On 22 May 2024, Ms English had a telephone call with Ms Dibden and informed her there were currently no Lending Assistant roles available in Queensland. Ms Dibden was asked to confirm her position in relation to the Personal Banking Specialist role by the following week.
On 24 May 2024, Mr Thomas Spratt, Senior Career Transition Consultant spoke with Ms Dibden to answer any questions she had regarding the redeployment process. She stated that she felt the Personal Banking Specialist role was different to her original role of Senior Customer Service Specialist. On 28 May 2024, Mr Spratt telephoned Ms Dibden and informed her that the roles are directly comparable, and she would be appointed to the role.
On 6 June 2024, Mr Richards telephoned Ms Dibden. Ms Dibden stated that she believed she could opt for retrenchment; Mr Richards informed her that Westpac does not offer voluntary redundancy, and a directly comparable role had been identified. A further conversation took place on 13 June 2024.
On 17 June 2024, Mr Richards telephoned Ms Dibden and informed her that she would be appointed to the Personal Banking Specialist role and as she was on parental leave, she could have a further two weeks to consider. A further conversation took place on 24 June 2024.
On 27 June 2024, Westpac was informed by the Commission that Ms Dibden had notified a s.739 dispute, alleging that Westpac had failed to comply with its consultation obligations under the Agreement. On 28 June 2024, Mr Richards sent Ms Dibden an appointment letter for the Personal Banking Specialist role at Westpac Cairns Central Branch commencing 8 July 2024. The letter stated that her existing salary would continue to apply and all other terms and conditions of her employment would remain the same.
Westpac participated in a s.739 conference before the Commission where Ms Dibden confirmed she was rejecting the appointment to the Personal Banking Specialist role. Ms Dibden learned on 16 July 2024 that Westpac would make the present s.120 application. Ms Dibden requested further time to consider whether she would reject the role. Ms Dibden requested Mr Richards enquire if an Adelaide-based role could be performed remotely.
On 17 July 2024, Mr Richards informed Ms Dibden that the Adelaide-based role could not be performed remotely. On 19 July 2024, Ms Dibden informed Mr Richards that she wanted to escalate a dispute under the Agreement as she felt like she had “nothing to lose”.
On 22 July 2024, Mr Richards sent an email to Ms Dibden requesting she advise her position regarding the Personal Banking Specialist role by 25 July 2024. On 25 July 2024, Ms Dibden advised she would be declining the role and would not pursue a dispute under the Agreement in the Commission.
On 29 July 2024, Ms Dibden was informed that her employment had been terminated on account of her rejection of the Personal Banking Specialist role.
Comparability of Personal Banking Specialist role
Mr Richards stated that while Ms Dibden’s earlier role was with St George, and the Personal Banking Specialist role is with Westpac, the duties and responsibilities are the same and the roles share a position description.
The two roles have the same fixed pay and other benefits. The Westpac role is at a location approximately 450 metres from where the St George role was performed. Mr Richards stated the duties are reasonable having regard to Ms Dibden’s skills and abilities. Mr Richards noted the Westpac and St George roles are equal in respect of Hay points. Both roles are branch-based customer service positions and unable to be performed remotely.
Mr Richards noted that the legal employer would be the same and all other terms and conditions Ms Dibden enjoyed would have applied to her in the Westpac role.
Evidence of Ms Samantha Dibden
Ms Dibden stated that she enjoyed and valued working for St George Bank and she was looking forward to returning to work after having children. She stated that she was looking forward to working alongside her colleagues. She was disappointed the St George Bank branch in Cairns closed in the period she was on parental leave.
Ms Dibden considers that it was not until May 2024 that she was advised by Ms English that she was not able to complete redeployment. She did not complete redeployment at the time the branch was closed, when her co-workers did. She was under the impression she could access redeployment or redundancy when her parental leave ended. She considered if she had been told earlier, she could have accessed redeployment opportunities at the time the branch closed.
Ms Dibden considers that working in a Westpac branch has a different culture and working environment than a St George Bank branch. She considers, and believes Mr Richards agrees with her, that working in a St George Bank branch has a family feel to it with how the staff interact with each other and customers. Working in a St George Bank branch is of high importance to Ms Dibden.
Ms Dibden considers that she was informed that she could not access Westpac’s redeployment, which provides a Redeployment team member to work on her behalf to assist her to be redeployed, because she had already been assigned the Personal Banking Specialist role.
She agrees that she was informed that Westpac was considering making a s.120 application on account of having appointed her into the Westpac role. Ms Dibden felt like Westpac made the application on account of her having lodged a s.739 dispute. She considers that she was informed she was entitled to seven weeks’ severance pay.
Reply evidence of Mr Richards
Mr Richards agrees that Ms Dibden did request to partake in redeployment to look for alternative roles after the role of Personal Banking Specialist with Westpac was identified. He stated that Ms Dibden was not eligible to partake in the redeployment process because the directly comparable role was identified for her. He informed her that if she did accept the role, she could still apply for other roles within the Westpac Group.
Mr Richards confirms that he did inform Ms Dibden that she was entitled, under the Act, to seven weeks’ severance pay. She was later informed that Westpac could make this present application to the Commission to reduce the entitlement to zero. Mr Richard denies that the decision to file this application was made because she had filed a s.739 dispute.
Mr Richards confirms that Ms Dibden expressed that she was seeking a remote role due to health issues, however he understood she ideally wanted to work from home but did not have any illness or injury affecting her ability to attend the workplace. Mr Richards understood that Ms Dibden was willing to perform work in a St George Bank branch but was unwilling to work in a Westpac branch.
Authorities
Westpac requests the Commission reduce Ms Dibden’s redundancy payment to nil on account of it having obtained other acceptable employment for her.
Prior to the term in s.120 of the Act stating that the Commission can make an order relevant to whether the employer obtains other acceptable employment, provisions in awards made pursuant to the Workplace Relations Act 1996 referenced the term ‘acceptable alternative employment’. I consider it suitable to have regard to precedents where the consideration was, at that time, whether the employer obtained acceptable alternative employment.
In Spotless Services Australia Limited t/as Alliance Catering,[1] Deputy President Sams usefully identified the authorities relevant to “other acceptable employment” and the task to be performed by the Commission where he stated:
“[60] The question of what constitutes ‘other acceptable employment’ in the context of a redundancy situation, has been considered by the Commission and its predecessors in many and varied circumstances and industries over a number of years. In Derole Nominees, a Full Bench of the Australian Industrial Relations Commission (AIRC) said at pp 128-129:
‘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 provision 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 elements 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.
This approach to the test demonstrates that any alternative employment available to the eighteen former employees of the company cannot be regarded as “acceptable” merely because a number of other former employees took up employment at the new location. The relevant aspects of the job must be examined objectively to determine whether the employment is “acceptable”.
…
The exemption provision imports the notion that an effort of a sufficient kind by an outgoing employer may cause his obligation for redundancy pay to be reduced; a decision by an employee not to co-operate with the employer may well disentitle the employee to all or some of the payment.’ (my emphasis)
…………
…………
[62] Senior Deputy President Watson in Feltex said at a para [33] and [89]:
‘[33] The parties accept, as do I, that matters to be considered in assessing whether alternative acceptable employment has been obtained include matters such as pay levels, hours of work, seniority, fringe benefits, workload and speed, job security, the location of work, continuity of service and accruals and the application of probationary periods. The relevant authorities also demonstrate that this listing of matters is not exhaustive and the question of whether an employment is acceptable alternative employment will be decided on the peculiar facts of a matter. Further, the authorities suggest that acceptable employment is not synonymous with identical employment, although the basis of the 2004 variation of the TCR test case provision suggests that, whilst not identical, terms and conditions should be substantially similar and no less favourable, overall, than the terms and conditions applicable to the employee at the time of the redundancy.
…
[89] I accept the proposition advanced by Feltex Australia that 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.’
[63] 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. Further, that one of the persons out of a group may have accepted the employment does not make the employment acceptable for the others in the group.The reasons for the acceptance of alternative employment are many and varied and general conclusions should not be drawn from a particular circumstance.
[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.’
[64] In DRW Investments t/as Wettenhalls v Timothy Richards & Others[2016] FWC 461, I said at para [183]:
‘[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.’
[65] The above decisions have some common features, including:
• The test of what constitutes ‘acceptable employment’ is an objective one. It does not mean it must be acceptable to the employee.
• ‘Acceptable employment’ is not identical employment, as no two jobs could be exactly the same.
• An employee must meaningfully cooperate with the employer in exploring or considering options for alternative positions.
• An employee’s prima facie entitlement to redundancy pay may be at risk if the employee refuses a role or position, which is found to be objectively ‘acceptable’.
• The acceptance of alternative employment by one or more persons in a group of redundant employees, does not necessarily make the alternative employment ‘acceptable’ for all of them. Each employee’s individual circumstances must be taken into account.
• There are a range of factors of varying weight, according to an employee’s particular circumstances, which may be taken into account to assess the acceptability of alternative employment.”
In deciding the present matter, I adopt the approach set out by the Deputy President and the authorities referred to by him.
Consideration
Was Ms Dibden “entitled to be paid an amount of redundancy” (s.120(1)(a))?
I am satisfied that Ms Dibden is entitled to be paid an amount of redundancy pay by Westpac because of s.119 of the Act. Section 120(1)(a) of the Act has been established. The amount is 7 weeks’ pay, totalling $11,244.89.
Did Westpac “obtain” other employment for Ms Dibden (s.120(1)(b)(i))?
The other employment is within the same employer. I am satisfied that part of s.120(1)(b) of the Act has been established.
Was the employment “acceptable” (s.120(1)(b)(i))?
While Ms Dibden weighed up the variables between her earlier role and the alternative employment offered, and declined to accept the alternative employment, that is not the relevant test before the Commission in determining this application. An objective test must be applied.
It is not necessary that the redundant role and the role(s) offered be identical in order for the latter role to be acceptable.
I am satisfied that the conditions and entitlements are identical. The location of the Westpac role is extremely close to where the St George Bank role was performed. The job description and pay grades are the same.
The largest contention Ms Dibden has is that working for St George Bank feels different than working for Westpac. She contends working for St George Bank has a greater family feel. Ms Dibden has not worked in a Westpac branch, and she would not know how it feels. I do not consider that objectively, working in a Westpac branch is less worthy or is more disappointing than working in a St George Bank branch.
Ms Dibden has not produced any medical evidence to suggest she is unable to work in a Westpac branch and perform the Personal Banking Specialist role. Ms Dibden’s preference is to either work in a St George Bank branch or work remotely. Neither of those opportunities are available to her.
In all of the circumstances, I consider that the role obtained for Ms Dibden was other acceptable employment.
Should the amount of redundancy pay be reduced (s.120(2))?
Section 120(2) of the Act vests the Commission with discretion to reduce the amount of redundancy pay by a specified amount. It does not automatically follow that a finding that the other employment obtained by Westpac for Ms Dibden was acceptable will result in the redundancy pay being reduced to nil.
I have had regard to the period of two months in which Westpac discussed the Personal Banking Specialist role with Ms Dibden. I do not consider it to have been a rushed period for Ms Dibden to have informed herself of the availability of Westpac to make this application in the event she declined the role. It was also a matter of discussion during the s.739 conference before me and the further conference in this application. Ms Dibden was aware that Westpac’s position was that she was not entitled to the more generous provisions of the Agreement, but was entitled to the NES provisions, and this application would need to be made and then determined by the Commission.
I consider Westpac acted appropriately by informing Ms Dibden that if she accepted the Personal Banking Specialist role, it did not limit her ability at any time to explore alternate roles across the organisation through Westpac’s normal internal recruitment processes.
I consider Westpac’s communication to Ms Dibden that she would not be entitled to one-on-one career counselling with a Redeployment team member on account of Westpac having found her other acceptable employment to be a reasonable position for Westpac to have taken. I consider it appropriate for Westpac to take the position that the Cairns-based Westpac branch role is suitable, and it ought not have to be put to the task of trying to find other roles Ms Dibden considers to be more suitable than the one that she had been appointed into.
I do not consider it appropriate to provide any part of the redundancy payment to Ms Dibden simply on account of her preference to work in a St George Bank branch as opposed to a Westpac branch. St George Bank became a part of the Westpac Group in 2008, approximately one decade before Ms Dibden commenced work for Westpac at a St George Bank branch. I do not consider that at any time in her employment, Ms Dibden has been protected such that she could have reasonably contemplated never being asked or required to work in a Westpac branch.
I have had regard to the fact that Westpac sent the following communication to Ms Dibden prior to her making her decision not to accept the Personal Banking Specialist role:
“Should the directly comparable role not be accepted, your employment will be retrenched with 4 weeks’ payment in lieu of notice, in line with your employment contract. As previously advised, Westpac intends to make an application to the Fair Work Commission to reduce your statutory National Employment Standards redundancy payment to nil on the basis that we have found other acceptable employment for you.”
I have decided to exercise my discretion to reduce the redundancy payment owed to Ms Dibden to nil. An order to that effect will be issued with this decision.
COMMISSIONER
[1] [2016] FWC 4505.
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