1
Fair Work Act
2009
s.120—Redundancy pay
Cleandomain Pty Ltd
v
Christine Flavell
(C2014/256)
Cleaning services
COMMISSIONER GREGORY MELBOURNE, 8 OCTOBER 2014
Variation of redundancy pay.
[1] Ms Christine Flavell has worked with Cleandomain Pty Ltd (“Cleandomain”) since
November 2006. She worked most recently as a permanent part-time cleaner at the Fountain
Gate shopping centre. However, in June 2013 she was dismissed after Cleandomain lost the
cleaning contract at the shopping centre. She was subsequently notified in writing that she
was not entitled to redundancy pay because she had “refused to cooperate in any part of the
selection process with the incoming contractor” and Cleandomain was unable to find a
“suitable alternative position” for her.
[2] At the time of her dismissal Ms Flavell had only just returned to work after being off
work for approximately 3 months because of an injury she sustained earlier this year.
[3] Ms Flavell’s length of service with Cleandomain would entitle her to an amount of
redundancy pay equivalent to 11 weeks pay. However, Cleandomain has now made
application claiming it obtained “other acceptable employment” for Ms Flavell and the
Commission should accordingly determine any redundancy entitlement be reduced to nil.
[4] United Voice appeared on behalf of Ms Flavell. It rejects the submission that
Cleandomain obtained other acceptable employment for her and submits she is entitled to a
redundancy payment equivalent to 11 weeks pay.
[5] Section 120 of the Fair Work Act 2009 (Cth) (“the Act”) enables an application to be
made to the Commission to have that redundancy obligation varied. It states:
“Variation of redundancy pay for other employment or incapacity to pay
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DECISION
AUSTRALIA FairWork Commission
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(1) This section applies if:
(a) an employee is entitled to 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.”i
[6] There is no real issue between the parties about whether the work with the incoming
contractor was “other acceptable employment.” The issue instead concerns whether
Cleandomain obtained that other employment for Ms. Flavell and whether she has been
deliberately uncooperative in not taking up that opportunity.
The Issue to be Determined
[7] The following issues are required to be determined in this matter.
1. Has Cleandomain obtained “other acceptable employment” for Ms Flavell as defined
in s.120 of the Act?
2. If so, is it appropriate for the Commission to exercise its discretion to reduce the
amount of the redundancy pay entitlement otherwise due to Ms Flavell?
The evidence and submissions
[8] Cleandomain submits Ms Flavell was employed under the Cleaning Services Award
2010 (“the Award”).ii It referred at the outset to clause 14.5 of the Award which deals with
“Change of contract” and applies when a cleaning contract changes from one contractor to
another.iii The sub clause provides, in part, that the redundancy entitlements contained as part
of the National Employment Standards in s.119 of the Act do not apply to an employee of
outgoing contractor where:
“(i) the employee of the outgoing contractor agrees to other acceptable employment
with the incoming contractor, and
(ii) the outgoing contractor has paid to the employee all of the employees accrued
statutory and award entitlements on termination of the employee’s employment.”iv
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[9] It continues to indicate:
“(c) To avoid doubt, section 119 of the Act does apply to an employee of an outgoing
contractor where the employee is not offered acceptable employment with either the
outgoing contractor or the incoming contractor.”v
[10] Cleandomain submits that previous decisions of the Commission have determined that
in circumstances where clause 14.5(b)(i) and (ii) of the Award applies, the employee has no
entitlement to redundancy payments under s.119, and an application under s.120 is therefore
unnecessary.vi However, those circumstances do not exist in the present matter because Ms
Flavell has not agreed to take on employment with the incoming contractor.vii
[11] Cleandomain’s submissions referred at the outset to various decisions of the
Commission dealing with similar applications.viii It submits they have established that the test
to be applied in determining whether “other acceptable employment” has been obtained is an
objective one, having regard to the circumstances of the case, including the impact on the
particular employee.ix It referred, in particular, to the decision in Derole Nominees Pty Ltd v
the Australian Chamber of Manufacturesx (“Derole Nominees”) in support of this submission.
[12] It also submits the requirement to “obtain other acceptable employment for the
employee” in an application under s.120 does not actually require a contract of employment to
be concluded between the employee and the incoming contractor. This outcome is ultimately
beyond its control but, as the decision in Derole Nominees indicates, “the employer must be a
strong, moving force towards the creation of the available opportunity.”xi
[13] Cleandomain submits, in all circumstances, it did what was required to satisfy the test
of obtaining “other acceptable employment,” including arranging for Ms Flavell to be offered
employment by the incoming contractor. This required her to participate in the process in the
same way as other employees. However, it submits that despite being informed on more than
one occasion about the process, and what was required, Ms Flavell refused to participate.xii It
also submits its application is supported by the fact all employees who did participate were
successful in obtaining employment with the incoming contractor.xiii
[14] It also submits Ms Flavell could have continued in employment with Cleandomain at
other locations but declined those roles because of the travel involved.xiv Cleandomain also
submits those positions met the tests established about “acceptability” in that the work offered
bears the sufficient comparability to the original work.xv
[15] Cleandomain concluded its submissions by indicating:
“The position that would have been offered to the respondent by the incoming
contractor, Millennium, did constitute acceptable alternative employment as it was the
same employment as the respondent previously had with the applicant. All of the
employees of the applicant who transferred to Millennium were paid out all of their
accrued annual leave. They were not paid out their accrued LSL as it had not vested.
As the employees had not accrued long service leave the date of termination, the
transmission of business provisions contained in the Long Service Leave Act 1992
(Vic) applied. Furthermore the respondent was offered employment of an objectively
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similar nature at the Alfred Hospital and RMIT. She rejected these offers because she
sought to be paid severance pay rather than be redeployed. This subjective reason for
not accepting the employment is not relevant nor was her refusal to travel an
additional thirty minute.”xvi
[16] Mr Carl Clotworthy is employed as the Operations Manager at Cleandomain.xvii He
said he was informed at the end of May that Cleandomain had been unsuccessful in its tender
to continue to provide cleaning services at the Fountain Gate site.xviii He was also aware the
Site Manager was then successful in having the incoming contractor agree to interview all
employees who wanted to obtain ongoing employment at the site. He said he was aware that
the incoming contractor conducted interviews with Cleandomain’s employees on 7 and 8
June, and all employees who participated in that process were employed by the new
contractor.xix
[17] He said he was also advised by the Site Managers that Ms Flavell had “been
uncooperative in participating in the redeployment process with Millennium and as a
consequence she was not offered employment with them.”xx He said he was also told she was
seeking a redundancy payment.xxi
[18] He said he was then contacted by Ms Flavell on 14 June 2013.xxii She indicated she
was now interested in a role with the incoming contractor, or an ongoing position with
Cleandomain. He told her the roles with the incoming contractor had been filled at that point,
but identified various other roles Cleandomain had which could be suitable for her.xxiii He said
Ms Flavell indicated she was seeking part-time work and was only prepared to travel certain
distances. He then tried to target positions at sites within what he understood to be suitable
locations. He met with her on 27 June and discussed a range of other potential vacancies, but
Ms Flavell was not prepared to travel more than 30 minutes from the Fountain Gate site, and
was not prepared to consider those roles.xxiv He also said that in that discussion he may have
said she could be entitled to a redundancy payment, but ultimately that was something he
would need to clarify with the Human Resources Department.xxv
[19] Mr Jason Cowan is an Assistant Manager with Millennium at the Fountain Gate
site.xxvi He said he was employed by Cleandomain at the site until 30 June 2013, with
responsibility for supervising staff and organising the rosters.xxvii However, when
Cleandomain’s contract at the site expired he commenced employment with the incoming
contractor, Millennium, at the same location.
[20] He said he first became aware that Cleandomain had been unsuccessful in its tender to
provide ongoing services at the site in late May, and letters were then given to all staff to
advise of the loss of contract and the process to be followed in obtaining ongoing
employment.xxviii
[21] He said Ms Flavell’s husband attended the site on 5 June to give him a medical
certificate on her behalf and he gave him the letter provided to all employees, together with a
list of all existing vacancies Cleandomain and its parent company currently had.xxix He said he
also told Mr Flavell about the forthcoming interviews the incoming contractor would be
holding with the employees to enable them to gain ongoing employment.xxx
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[22] He said he subsequently arranged for the incoming contractor to hold interviews with
existing Cleandomain employees on two separate days to ensure all employees would be able
to attend.xxxi However, he was aware Ms Flavell did not attend these interviews and he again
made contact with her to enquire as to why she did not attend.xxxii He said he then had a
further discussion with her and told her there was one last opportunity to meet with the
incoming contractor if she wanted to continue working at the site.xxxiii He said Ms Flavell told
him she would “think about it,” but again did not take up this opportunity.xxxiv
[23] He said Ms Flavell then returned to work on 13 June and he had a further discussion
with her about her intentions.xxxv He said she indicated she wanted a redundancy payment and
was not interested in continuing to work for Cleandomain or the incoming contractor. xxxvi
[24] Mr Nalindra Wijetunge was the Venue Manager at Fountain Gate until Cleandomain
lost the contract.xxxvii He was responsible for managing the contract, drawing up rosters,
employing new staff and undertaking training.xxxviii He said at the time Cleandomain lost the
contract he was aware Ms Flavell had been absent from work for some time and, therefore, on
3 June he telephoned her on both her landline and mobile phone to advise about the loss of
contract,xxxix and the process for obtaining work with the incoming contractor. He said he then
telephoned Mr Flavell and left a message telling him that unless his wife was redeployed her
employment would be terminated.xl He also informed him about the letter to be collected
detailing the process for participating in the forthcoming interviews with the incoming
contractor.xli
[25] Cleandomain submits, in conclusion, that the evidence demonstrates it was a strong
moving force towards the creation of ongoing work opportunities with the incoming
contractor.xlii It submits Ms Flavell was contacted and told about the loss of contract.xliii She
was advised about the redeployment process, and about the interviews to be held on two
separate days, but declined to cooperate in that process.xliv It also submits the evidence
indicates she was seeking a payout, rather than ongoing employment, and she should not be
rewarded with an entitlement to severance pay when she made no attempt to cooperate with
the redeployment processes.xlv It also refutes the suggestion the reason for her failure to
cooperate was her medical condition, and submits she was capable of getting involved in the
processes with the incoming contractor to enable her to remain in ongoing employment.xlvi
[26] United Voice states Ms Flavell was notified in writing in a letter dated 16 July 2013
that her employment with Cleandomain had been terminated, and she was not entitled to a
redundancy payment because she had “refused to cooperate in any part of the selection
process with the incoming contractor.” It also indicated Cleandomain was unable to find “a
suitable alternative position” for her.xlvii
[27] United Voice rejects the submission by Cleandomain that it obtained “other acceptable
employment” for Ms Flavell.xlviii It referred to clause 14.5 of the Award and sub clause
14.5(c), in particular, which states:
“Section 119 of the Act does apply to an employee of an ongoing contractor where the
employee is not offered acceptable alternative employment with either the outgoing
contractor or the incoming contractor.”xlix
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[28] It also made reference to the extracts relied upon by Cleandomain from the decision in
Derole Nominees.l It also referred to the decision in Allman v Teletech International Pty Ltdli
and submits it is authority for the proposition that where an employer has obtained or
arranged alternative employment for an employee, any such arrangement must be
communicated by the employer to the employee so “the employee would understand the
employer on each occasion to be saying that it has found another job for the employee.”lii
[29] In terms of whether “other acceptable employment” was obtained for Ms Flavell
United Voice submits that in February 2013 she was injured and then unable to work from 15
March until 10 June 2013.liii It also acknowledges that on or around 5 June she received the
letter from Mr Clotworthy advising Cleandomain had lost the contract and would be looking
to find other employment for the employees.liv
[30] However, it submits she was unable to attend the interviews with the incoming
contractor on 7 and 8 June because of her injury, and cannot be said to have unreasonably
refused to participate in the interview process.lv It relied on the decision in Lawrie v Coles
Supermarkets Australia Pty Ltdlvi in support of this submission.
[31] On 13 June 2013 Ms Flavell returned to work at the Fountain Gate site and contacted
Mr Clotworthy the next day to enquire about future work opportunities with either
Cleandomain or the incoming contractor.lvii United Voice submits Mr Clotworthy told Ms
Flavell all vacancies with the incoming contractor had been filled, however, he would look to
identify other possible vacancies within its business.lviii It submits she then spoke to him again
on at least two occasions in the next fortnight indicating she was prepared to work on any day
and able to travel a reasonable distance to a new work location .lix It submits she met with him
again on 20 June and he advised he had been unable to locate any other acceptable
employment. It submits he also flagged the possibility she would be terminated as a result of
redundancy.lx
[32] United Voice relies on the Full Bench decision in National Union of Workers v
Tontine Fibreslxi in support of its submission Cleandomain failed to obtain acceptable
alternative employment for Ms Flavell. It also submits the onus is upon the Applicant to
substantiate its application to vary the amount of redundancy pay otherwise due to the
employee, as found in Target Australia Pty v Shop, Distributive and Allied Employees
Association.lxii It also submits Cleandomain has failed to provide sufficient evidence to
establish it offered her “other acceptable employment,” having regard to the factors referred
to in the decision in Clothing and Allied Trades Union Australia v Hot Tuna Pty Ltd.lxiii
[33] Ms Flavell said she has worked with Cleandomain since November 2006.lxiv She
initially worked at the Southland site but was transferred to the Fountain Gate site in October
2012 when Cleandomain was taken over by Spotless Services.lxv She then suffered broken
ribs and a punctured lung in February 2013 and was off work from March until June 2013.lxvi
She said she arranged for her husband to deliver medical certificates to Cleandomain during
that time confirming she continued to be unfit for work.lxvii
[34] She acknowledged that she received two missed calls from Mr Cowman on her mobile
phone on 3 June, but did not return the calls because she was unwell.lxviii She said her husband
then delivered a further medical certificate to the Fountain Gate site on 5 June and, at the
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same time, Mr Cowman gave him the letter indicating Cleandomain had lost the contract at
the site.lxix She also said the Site Manager left a message on her husband’s mobile phone on 7
June stating he should come into the office “to pick up an application form to apply for a
position with the new company”.lxx However, she said she did not have a good relationship
with Mr Wijetunge and chose not to answer or return his calls when he rang.lxxi She said she
then sent a message to Mr Cowman on the same day asking for a form to be given to her
husband when he attended with her medical certificate.lxxii
[35] Mr Cowman then called her and said she would have to attend an interview with the
incoming contractor on either 7 or 8 June.lxxiii However, she told him she was not feeling well
and could not attend those interviews. She did, however, acknowledge in cross-examination
she received the letter on 5 June and was aware interviews with the incoming contractor were
to be held on 7 and 8 June.lxxiv She also said she did not attend those interviews because she
was employed by Cleandomain and wished to continue in employment with the Company .lxxv
She again stated in cross-examination she was on sick leave at the time and couldn’t be
compelled to attend an interview.lxxvi However, she also acknowledged she returned to work
on 13 June, five days after the interviews were held.lxxvii On her return she told Cleandomain
she wanted to keep working for the Company. She then confirmed she had a series of
discussion with Mr Clotworthy about other possible work opportunities, and met with him
again on 27 June when he indicated he would continue to look for other positions.lxxviii
[36] However, on 16 July 2013 she received the termination letter from her employer. It
stated, in part:
“You refused to cooperate in any part of the selection process with the incoming
contractor. If you had cooperated it is fully expected that you would have been
successful in obtaining acceptable alternative employment, which was the case with all
other employees who did cooperate. York lack of cooperation has the consequence
that you declined offers of acceptable alternative employment with the incoming
contractor Millennium Cleaning and the absence of a suitable alternative position
being available at another Spotless Site, your employment with Spotless was
terminated due to retrenchment.lxxix
[37] It continued to indicate:
“In accordance with the terms of employment agreement you will be paid for accrued
and underpaid annual leave. However as you declined to offers to meet with the
incoming contractor and continue your employment at Westfield Fountain Gate,
you’re entitlements do not include a redundancy payment.”lxxx
[38] Mr Mark Flavell said he delivered a medical certificate on behalf of his wife to Mr
Jason Cowman at the Fountain Gate site on 5 June and was given the letter indicating
Cleandomain had lost the cleaning contract at the site.lxxxi He said he gave the letter to his
wife and two days later received a voicemail from the Site Manager indicating the incoming
contractor was on site that day and holding interviews with staff. He said he relayed the
contents of that message to his wife.lxxxii
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[39] United Voice submits in conclusion that Ms Flavell did ask for an application form to
apply for a position with the incoming contractor, and this demonstrates her interest in
obtaining alternative employment, and the fact she had taken reasonable steps to gain that
employment.lxxxiii It also submits it is clear her medical condition meant she was unable to
physically attend an interview.lxxxiv It submits she should not be penalised in circumstances
where she was unable to attend the interviews, and it is only Mr Cowman’s evidence that
suggest she was seeking a redundancy payment, rather than ongoing employment.lxxxv It also
submits there is no evidence that Cleandomain actually offered her another position when it
was clear ongoing employment with the incoming contractor was no longer an option.
Consideration
[40] The circumstances in this matter are different from most applications made under
s.120 of the Act. They are typically concerned with whether “other acceptable employment”
has been obtained, given the location, hours of work, terms and conditions of employment,
and other relevant factors. However, in the present matter there is no issue between the parties
about whether the roles offered by the incoming contractor constitute “other acceptable
employment.” It is, instead, agreed they were offered on the same basis as the work being
performed when the employees were employed by Cleandomain.
[41] The issue instead in this case is whether Cleandomain can be said to have “obtained”
that employment for Ms Flavell. Cleandomain submits it did, but Ms Flavell then refused to
cooperate in the selection process with the incoming contractor to enable that opportunity to
be crystallised. Ms Flavell submits, on the other hand, that her absence from the workplace at
the time because of injury meant she couldn’t participate in those processes, and it can’t be
said Cleandomain had obtained “other acceptable employment” for her.
[42] However, before dealing with this issue I also note that Cleandomain made reference
in its opening submissions to clause 14.5 of the Cleaning Services Award 2010, and a
decision of Commissioner Spencer in ISS Facility Services Australia Ltd.lxxxvi It submits that
in circumstances where clause 14.5 of the Award applies there is no requirement for an
application to be made under s.120 because the employee has no entitlement to redundancy
payments in the first place.
[43] I am satisfied, in response, it is not necessary to deal with this submission in the
circumstances of this matter. Clause 14.5(b) of the Award indicates, at the outset, that it
applies in cases of a change of cleaning contract from one cleaning contractor to another.
However, it continues to state in sub paragraph (b):
“(b) Section 119 of the Act does not apply to an employee of the outgoing contractor
where:
(i) the employee of the outgoing contractor agrees to other acceptable
employment with the incoming contractor, and
(ii) the outgoing contractor has paid to the employee all of the employee’s
accrued statutory and award entitlements on termination of the employee’s
employment.”lxxxvii
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[44] In the present matter Ms Flavell has clearly not agreed to “other acceptable
employment with the incoming contractor.” Therefore, I am satisfied one of the preconditions
in clause 14.5(b) has not been satisfied, and therefore the sub clause has no application.
[45] The requirements associated with the provisions now contained in the s.120 of the Act
have been considered in a number of previous decisions of the Tribunal. Both parties made
reference to the decision of a Full Bench of the then Australian Industrial Relations
Commission in the matter of Derole Nominees, lxxxviii which considered what the meaning of
“obtains” requires in the context of an outgoing contractor obtaining acceptable employment
for an employee. The Full Bench held, firstly, that it cannot mean obtain “in the fullest sense
possible” because one employer is incapable of affecting a contract of employment with its
employees and another employer. Therefore, it must be given “some lesser meaning.” The
Full Bench concluded:
“Viewed in this way it will be seen that the intention is not to impose an absolute test
on the employer’s ability to “obtain” alternative employment but rather it refers to
action which causes acceptable alternative employment to become available to the
redundant employee. The employer must be a strong, moving force towards the
creation of the available opportunity.”lxxxix
[46] In Datacom Systems Vic Pty Ltd v Rasiq Khan; Siddharth Desaixc (“Datacom”), Vice
President Lawler also expressed the view that the word “obtains” in the context of s.120
should be given a very broad interpretation. It is also clear from the authorities that it is a test
to be applied on an objective basis, and not to be applied simply on the basis of whether the
employee wishes to take on the role that is being offered or not. I have had regard to these
authorities in coming to a decision in this matter.
[47] Ms Flavell had been absent from the workplace because of her injuries for
approximately 3 months when Cleandomain was first informed it had been unsuccessful in its
tender to continue providing cleaning services at the Fountain Gate site. During that time her
husband delivered medical certificates to the site on her behalf. On 3 June 2013 Cleandomain
forwarded a letter to its employees at the site advising about the loss of contract and
indicating it would be speaking with the new contractor about possible ongoing employment
opportunities. The letter also contained a list of all current vacancies within Cleandomain’s
operations, and that of its parent company. Mr Cowan, the Assistant Manager, gave a copy of
the letter to Mr Flavell two days later when he visited the site with his wife’s latest medical
certificate. He also said he told him about the interviews arranged with the incoming
contractor. He said he had arranged for the interviews to be held on two separate days to
ensure all employees would be able to attend. However, when he became aware Ms Flavell
did not attend either of these interviews he contacted her again and told her there was a final
opportunity to meet with the incoming contractor if she wanted to continue working at the
site. Ms Flavell told him she would “think about it,” but again did not attend or make any
contact with the new contractor.
[48] Mr Wijetunge was the Venue Manager for Cleandomain at Fountain Gate. He said he
telephoned Ms Flavell on 3 June on both her landline and mobile phone to let her know about
the loss of the contract at the site. He said he also left a message with her husband to tell him
about the forthcoming interview processes with the incoming contractor.
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[49] Mr Clotworthy said he was contacted by Ms Flavell on 14 June 2013 and told she was
interested in a role with either the incoming contractor or an ongoing position with
Cleandomain. He said he told her the jobs with the incoming contractor had been filled and
sought to identify other roles within Cleandomain that might be suitable. He said she
indicated she was only seeking part-time work, and was only prepared to travel a certain
distance to work.
[50] Ms Flavell rejects the suggestion she refused to cooperate in the process of obtaining
work with the incoming contractor. She submits she was unable to attend interviews because
of her injury. She also said she did not return phone calls left with her, either because she was
unwell, or because she did not have a good relationship with Mr Wijetunge, and chose not to
answer or return his calls when he rang. She did, however, acknowledge in cross-examination
that she received the letter dated 5 June 2013 and was aware that interviews were to be held
with the incoming contractor. She also said she did not unreasonably refuse to consider other
alternatives within Cleandomain by imposing unrealistic limitations on the hours she would
work, or the distance she would travel.
[51] Ms Flavell also relies on the decision in Lawrie v Coles Supermarkets Pty Ltdxci in
support of the view that an employee is not being uncooperative because they are unable to
apply for other employment because of their absence from work due to injury. In that matter
the employer was instead found to be at fault for not fully investigating the situation.
[52] In that matter the employee’s position was made redundant and she was offered
another role. However, she could not perform that role because of a pre-existing leg injury.
She then went on a period of extended leave before resigning. The Industrial Magistrate
subsequently found in her favour. He determined that an offer of other employment was made
to the employee. However, when the employer became aware of the medical condition
impacting on her ability to take on that role it made no further effort to follow up that
situation. It also failed to pass on that information to the relevant HR representative, and
failed to follow its own policies that were to be applied in circumstances where an employee
is absent from work for more than three months. The Magistrate accordingly concluded, “I do
not accept that there was no cooperation on the part of the applicant,”xcii and concluded the
employer had erred “when it failed to follow through in any meaningful way to ascertain the
extent of the Applicant’s problems.”xciii
[53] Those circumstances are different from those in the present matter. Cleandomain was
not ignorant of the circumstances involving Ms Flavell and was being provided with regular
medical certificates in regard to her injury. The evidence also indicates that attempts were
made to contact both Ms Flavell and her husband on several occasions because she was not at
work, to inform her about the loss of the contract at the site and the process of obtaining
ongoing employment with the incoming contractor.
[54] Ms Flavell also relied on the decision in Allman v Teletech International Pty Ltdxciv
(‘Teletech”) in support of the submission that where an employer claims to have obtained
other acceptable employment that information must be communicated in a way so that the
employee understands what is being conveyed. That matter concerned a provision in a former
Australian Workplace Agreement (“Agreement”) which removed any entitlement to
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redundancy payments in circumstances where the employer “is able to arrange alternative
employment with another employer that is comparable in wages, terms and conditions of
current employment. “xcv
[55] In his decision Marshall J found that the exemption from the obligation to make
redundancy payments in the Agreement did not apply because the employer was not actually
able to arrange alternative employment in the sense of bringing about that employment,
should the employee choose to accept it. He concluded, “the employee may not choose to take
up the job, but it must be one that is there for the taking if the employee chooses to take it.”xcvi
He therefore found that the exemption provided for in the Agreement could not be relied upon
by the employer.
[56] Again, the circumstances in that matter can be distinguished from this matter. The
decision was, firstly, dealing with the particular provisions contained in the Agreement.
Marshall J also found the employer was not “a strong moving force towards the creation of
the available opportunity,” and the ongoing opportunities only existed because the incoming
contractor had vacancies it required to fill.xcvii The new employer was also not proposing to
give preferential treatment to the employees of the outgoing contractor; those employees were
simply able to make application for ongoing work on a shared basis with its own employees.
Marshall J found this factor, in particular, meant the relevant test in the AWA had not been
met and consequently the exemption in the Agreement was not available to the employer.
[57] The fact that Ms Flavell was off work at the time Cleandomain lost the contract at
Fountain Gate is a significant factor that needs to be taken into account in determining this
matter. Clearly, an employee who is off work due to illness or injury might be prevented, or
be unable to attend interviews, or participate in the processes to do with obtaining “other
acceptable employment” with an incoming contractor. The extent to which this is the case will
depend in large part on the nature of the illness or injury afflicting the employee. For
example, an employee might not be able to carry out their normal job functions, particularly if
demanding physical work is involved, however, their illness or injury might not prevent them
from attending or participating in interview processes to do with a future job opportunity,
[58] Clearly an employee who is temporarily absent from the workplace may need to be
treated or dealt with differently in terms of how they are communicated with, or kept up dated
about developments that might be happening in the workplace that impact on or are relevant
to them. However, it does not follow that an employee in these circumstances necessarily has
any greater rights or entitlements than other employees.
Conclusion
[59] The evidence in this matter indicates that two Cleandomain Managers made various
attempts to contact Ms Flavell after it became known Cleandomain had lost the contract at
Fountain Gate. Their intention was to inform her about that situation and to let her know what
was required to obtain ongoing employment at the site with the incoming contractor. A
further discussion was then had with her husband about these matters when he attended the
work site two days later. He was also given a copy of the letter that had previously been
provided to the other employees at the site. Ms Flavell was then contacted again by telephone
to encourage her to arrange an interview or discussion with the incoming contractor.
[2014] FWC 5243
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However, Ms Flavell did not make any attempt to respond to these efforts to make contact
with her, nor did she make any attempt to get in contact with the new contractor.
[60] It is acknowledged that Ms Flavell had been off work for several months at this point.
However, she was able to return to work with a medical clearance on 13 June, just four days
after the interviews with the incoming contractor had taken place. This suggests that her
recovery from her injury was almost complete at this time. In any case I am not satisfied that
her absence from work provides an excuse for her complete lack of response and inaction
concerning Cleandomain’s loss of the contract at the site, and the process put in place to
obtain ongoing employment with the incoming contractor.
[61] On her return to work Ms Flavell then participated in further discussions about the
possibility of ongoing work with Cleandomain, or its parent company, but because of the
hours she wanted to work, and her travel restrictions, nothing could be found. It is
acknowledged that Ms Flavell was not actually offered an ongoing position with
Cleandomain, however, as indicated it also appears any possible options that might have been
open to her were limited by the hours she was prepared to work, and the distance she was
prepared to travel.
[62] It is accepted that Ms Flavell’s preference was to continue to work with Cleandomain
at the Fountain Gate site. However, when Cleandomain lost the contract to provide services at
Fountain Gate that option was no longer available, at least not with Cleandomain. However,
this did not entitle her to simply do nothing, and instead rely on Cleandomain to find other
employment for her, or provide her with redundancy payments, in circumstances where it had
obtained “other acceptable employment” for its employees at the site.
[63] Clearly, the situation might have been different if Cleandomain had ignored Ms
Flavell, or not attempted to contact her about the loss of contract at the site, and the
opportunity to obtain ongoing employment with the incoming contractor. It might also have
been different if she had participated in the processes with the incoming contractor, but been
unsuccessful in obtaining ongoing employment because of her absence from work at the time.
[64] I am therefore satisfied that, in all the circumstances, Cleandomain can be said to have
obtained “other acceptable employment” for Ms Flavell, because it was “a strong, moving
force” towards the creation of ongoing work opportunities at the site. It made several attempts
to contact Ms Flavell. It discussed the situation with her husband. It arranged for additional
interviews with the incoming contractor to ensure all employees could attend. Its proactive
role in this process can be demonstrated by the evidence which indicates all employees who
wished to continue in employment at the site were able to do so with the new contractor. It
was not appropriate, in this situation, for Ms Flavell to simply ignore or elect not to
participate in these processes.
[65] I am accordingly satisfied Ms Flavell was provided with a reasonable opportunity to
participate in the processes associated with obtaining work with the incoming contractor. I am
also satisfied she was not prevented by her injury from participating in those processes and, at
the very least, could have been expected to make contact with the incoming contractor by
telephone to indicate her intentions. I am therefore satisfied, based on the relevant authorities,
that Cleandomain did what was required to obtain “other acceptable employment” for Ms
[2014] FWC 5243
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Flavell, and it is only because of her inaction in response that she is no longer in ongoing
work at the site. Having come to this decision I am also satisfied that it is appropriate in the
circumstances to reduce the amount of redundancy pay to which she is otherwise entitled to
nil. An order to this effect will be issued in conjunction with this decision.
COMMISSIONER
Appearances:
Mr. J Douglas appeared on behalf of the Applicant
Mr A Pung of United Voice appeared on behalf of the Respondent.
Hearing details:
2014
Melbourne
30 July.
Final written submissions:
Applicant filed submissions on 14 March 2014.
Respondent filed submissions on 7 March 2014.
Printed by authority of the Commonwealth Government Printer
Price code C, PR553846
i Fair Work Act 2009 (Cth) at s.120.
ii Outline of Submissions from Cleandomain Pty Ltd dated 14 March 2014 at para 5.
iii Ibid at para 6.
iv Ibid.
v Ibid.
vi Ibid at para 8 to 9.
vii Ibid at para 11.
viii Ibid at para 8 to 16.
ix Ibid at para 9.
x C037CRA Dec 1029/90 S Print J4414
xi Outline of Submissions from Cleandomain Pty Ltd dated 14 March at para 9.
xii Ibid at para 11.
COMMISSION WORD THE SEAL 1
[2014] FWC 5243
14
xiii Ibid.
xiv Ibid at para 13.
xv Ibid at para 15 to 16.
xvi Ibid at para 16.
xvii Exhibit C4, Statement by Carol Clotworthy dated Friday, 14 March 2014 at para 1.
xviii Ibid at para 4.
xix Ibid at para 6.
xx Ibid at para 7.
xxi Ibid.
xxii Ibid at para 8.
xxiii Ibid.
xxiv Ibid at para 10.
xxv Transcript at PN 92.
xxvi Exhibit C3, Statement by Jason Cowan dated Friday, 14 March 2014 at para 1.
xxvii Ibid at para 2.
xxviii Ibid at para 4.
xxix Ibid at para 6.
xxx Ibid.
xxxi Ibid at para 7.
xxxii Ibid at para 8.
xxxiii Ibid.
xxxiv Ibid.
xxxv Ibid at para 9.
xxxvi Ibid.
xxxvii Exhibit C1, Statement by Nalindra Wijuetunge dated Friday, 14 March 2014 at para 1.
xxxviii Ibid at para 3.
xxxix Ibid at para 6.
xl Ibid.
xli Ibid.
xlii Transcript at PN370.
xliii Transcript at PN371.
xliv Ibid
xlv Ibid.
xlvi Ibid.
xlvii Outline of Submissions from United Voice dated Tuesday, 11 March 2014 at para 6.
xlviii Ibid at para 12.
xlix Ibid at para 15.
l C037CRA Dec 1029/90 S Print J4414
li [2008] FCA 1820
lii Outline of Submissions from United Voice dated Tuesday, 11 March 2014 at para 18.
liii Ibid at para 19 to 20.
liv Ibid at para 21.
lv Ibid at para 30.
lvi [2008] SAIRC 54
lvii Outline of Submissions from United Voice dated Tuesday, 11 March 2014 at para 25.
[2014] FWC 5243
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lviii Ibid at para 27.
lix Ibid at para 31.
lx Ibid at para 32.
lxi [2007] AIRCFB 1016
lxii [2002] AIRC 1465
lxiii [1988] 27 IR 226
lxiv Exhibit UV1, Witness Statement of Christine Flavell dated 7 March 2014 at para 2.
lxv Ibid at para 3.
lxvi Ibid at para 5.
lxvii Ibid at para 6.
lxviii Ibid at para 7.
lxix Ibid at para 9.
lxx Ibid at para 12.
lxxi Transcript at PN206 to PN207.
lxxii Exhibit UV1, Witness Statement of Christine Flavell dated 7 March 2014 at para 13.
lxxiii Ibid at para 14.
lxxiv Transcript at PN233 to PN234.
lxxv Ibid at PN235.
lxxvi Ibid at PN256 to PN259.
lxxvii Ibid at PN314.
lxxviii Exhibit UV1, Witness Statement of Christine Flavell dated 7 March 2014 at para 22 to 31.
lxxix Letter of Termination from Spotless to Christine Flavell dated 16 July 2013.
lxxx Ibid.
lxxxi Exhibit UV2, Witness Statement of Mark Flavell dated on 7 March 2014 at para 5.
lxxxii Ibid at para 6 to7.
lxxxiii Transcript at PN407.
lxxxiv Ibid.
lxxxv Ibid at PN416.
lxxxvi [2013] FWC 1327.
lxxxvii Cleaning Services Award 2010 at cl.14.5.
lxxxviii C037CRA Dec 1029/90 S Print J4414.
lxxxix Ibid at para 4.
xc [2013] FWC 1327
xci [2008] SAIRC 54
xcii Ibid at para 102.
xciii Ibid.
xciv [2008] FCA 1820.
xcv Ibid at para 12 to 14.
xcvi Ibid at para 14.
xcvii[2008] FCA 1820 at para 18.
