Williams-Sonoma Australia Pty Ltd v Rowena Botrous

[2016] FWC 8533

[2016] FWC 8533

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.120—Redundancy pay

Williams-Sonoma Australia Pty Ltd
v
Rowena Botrous
(C2016/6199)

DEPUTY PRESIDENT DEAN SYDNEY, 30 NOVEMBER 2016

Variation of redundancy pay.

[1] The following decision, now edited, was delivered ex tempore at the conclusion of the proceedings on 29 November 2016:

[2] On 18 October 2016 Williams-Sonoma Australia Pty Ltd (the Applicant) made an application pursuant to s.120 of the Fair Work Act 2009 (the Act) for an order to vary the redundancy pay entitlement with respect to its former employee, Ms Rowena Botrous. Ms Botrous was employed as an Assistant Store Manager – Visual at the Applicant’s Chadstone store. The Applicant seeks to reduce the amount of redundancy pay Ms Botrous is otherwise entitled to be paid to nil. The application is made on the basis that Ms Botrous was offered ‘other acceptable employment’ with the Applicant for the purposes of s.120(1)(b)(i). This offer, however, was rejected by Ms Botrous.

Background

[3] The Applicant is a US based company and currently operates 19 stores in Australia under four different brands. In around mid 2016 the Applicant decided to restructure its retail store management. This restructure resulted in a reduction of the number of Assistant Store Manager positions that were required and changes were made to the job descriptions of those roles. The Applicant also decided to make all of the current Assistant Store Managers redundant by way of compulsory redundancy, and commence a merit based selection process for those who were interested in being considered for the newly create Assistant Store Manager positions.

[4] On 28 September 2016, Ms Drese, the Senior Human Resources Manager for the Applicant, attended the Chadstone store and had a meeting with the Assistant Store Managers. Ms Botrous was amongst the managers who attended the meeting. At that meeting, all Assistant Store Managers were advised that their positions would be made redundant with effect from 24 October 2016. The applicant subsequently participated in an interview selection process for the new roles, and was subsequently offered an assistant store manager position at Chadstone on 7 October 2016, which she declined on the basis that she wanted to accept a redundancy that had been discussed with her previously.

Relevant Legislation

[5] Section 119 of the Act relevantly provides 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.

[6] Section 119 goes on to provide the amount of redundancy pay by reference to the employee’s period of continuous service with the employer.

[7] Section 120 of the Act provides:

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, FWA may determine that the amount of redundancy pay is reduced to a specified amount (which may be nil) that FWA 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.

Consideration

[8] The determination of whether the position offered was acceptable alternate employment must be determined objectively and not subjectively from the perspective of the employer or the employee.  As was explained in another case by Watson SDP, in Feltex Australia Pty Ltd v Textile, Clothing and Footwear Union of Australia 1:

Acceptable alternate employment is not necessarily identical employment and the AIRC has previously found alternate employment to be acceptable, notwithstanding inconvenience to employees and some detrimental alteration to the terms and conditions of employment. 

[9] That the alternate employment may be rejected by the employee does not objectively make it unacceptable.

[10] In Clothing and Allied Trade Union of Australia v Hot Tuna Pty Ltd 2 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.

[11] I apply the approach arising from these cases in determining the matter before me.

[12] The position offered to Ms Botrous involved a position which, in my view, is substantially similar.  It was an Assistant Store Manager position which was located physically at the same location as her previous role, requiring no additional transport or relocation, it provided the same remuneration as her previous role, it had similar duties although I note not entirely the same duties, some responsibilities that she previously performed.  The position was at the same classification, being level 6 of the General Retail Industry Award 2010.  The position was a permanent full time position and required the same number of hours as her previous role. The position was an equal hierarchical level to her previous role and came with the same employment benefits as her previous role.

[13] I accept the submissions of the applicant that while there were previously three assistant manager roles which were converted to two, they were supported in the new structure by a number of other positions, including key holder visual and key holder design.  In my view the offer of employment was acceptable employment in an objective sense.  I find that the employer obtained other acceptable employment for Ms Botrous.

Conclusions

[14] In the light of the conclusion I have reached that the Applicant obtained other acceptable employment for Ms Boutros, I determine that the amount of redundancy pay payable under s.119 of the Act be reduced to nil. An order giving effect to this decision is published with this decision.

DEPUTY PRESIDENT

Appearances:

V Drese for the Applicant.

R Botrous on her own behalf.

Hearing details:

2016.

Melbourne and Sydney (video hearing):

November 29.

 1   PR974699.

 2 (1988) 27 IR 226.

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