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Fair Work Act 2009
s.120 - Application to vary redundancy pay for other employment or incapacity to pay
Australian Commercial Catering Pty Ltd
v
Mrs Maria Togia
(C2014/3632)
COMMISSIONER ROE MELBOURNE, 10 APRIL 2014
Application to vary redundancy pay.
[1] Australian Commercial Catering Pty Ltd (the Applicant) lost the catering contract at
Robert Bosch effective from 25 October 2013 and advised employees of that fact on 16
August 2013. Ms Togia had been employed as a full time employee by the Applicant working
on the Robert Bosch contract for nine years and eight months. Ms Togia was advised on that
date that she could seek to continue her employment with the new provider to Robert Bosch
(Alliance Catering) in which case she would be paid her entitlements by the Applicant or she
may be offered an alternative position with the Applicant or if there is no other position
available with the Applicant and if she was unsuccessful in continuing with the new
contractor she would be made redundant.
[2] As at 23 October 2013 no alternative position with the Applicant had been found and
discussions with Alliance about employment with them were continuing. On 23 October 2013
the Applicant wrote to Ms Togia and advised that they were now able to “offer you a position
with us should you decline your offer with Alliance Catering.” The letter also advised “please
note that if you do not take up the Alliance or ACC offer you will not be entitled to the
redundancy offer.” This was a clear reference to the issue of entitlement to redundancy
payments which had been the subject of earlier correspondence on 11 October 2013 where Ms
Togia was put on notice that if she rejected an offer of employment with the new employer on
terms and conditions substantially similar to those with the old employer then redundancy
payments would not apply. On 25 October 2013 Ms Togia advised the Applicant that she was
taking up employment with Alliance and consequently was not taking up the alternative
position with the Applicant.
[3] The Applicant is seeking pursuant to Section 120 of the Fair Work Act 2009 (Cth) (the
Act) that the 16 weeks redundancy entitlement which they say would otherwise have been
payable to Ms Togia be reduced to zero on the grounds that the Applicant offered Ms Togia
suitable alternative employment working on another contract for the Applicant on equivalent
terms and conditions.
[4] In response to my question the Applicant advised that it was not arguing that this was
a transfer of employment situation dealt with under Section 122 of the Act.
[2014] FWC 2431 [Note: Appeals pursuant to s.604 (C2014/662) and
C2016/3067 were lodged against this decision and the order arising from
this decision - refer to Full Bench decisions dated 6 March 2015 [[2015]
FWCFB 87] and 12 August 2016 [[2016] FWCFB 5467]] respectively for
result of appeals.]
DECISION
E AUSTRALIA FairWork Commission
http://www.fwc.gov.au/decisionssigned/html/2016FWCFB5467.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB87.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB87.htm
https://www.fwc.gov.au/documents/awardsandorders/html/pr549581.htm
[2014] FWC 2431
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[5] This matter was subject of Hearing on 8 April 2014. Having heard from the parties I
issued a decision on transcript.
[6] For the reasons outlined on transcript I decided that the Applicant, Ms Togia, had been
advised that she had the option to accept employment with Alliance and if she did so her
position would be made redundant. The Applicant had put Ms Togia on notice that
redundancy payments might not be applicable if the terms and conditions were substantially
similar. Ms Togia accepted the position with Alliance and commenced employment with
Alliance on Monday 28 October 2013, the next working day following the termination of the
Applicant’s contract with Robert Bosch. The Applicant accepts that Ms Togia was made
redundant by them and is seeking to reduce the redundancy payment to zero on the grounds
that they found suitable alternative employment for her. For the reasons outlined on transcript
I found that the employment with Alliance was not suitable alternative employment in that the
job with Alliance was a casual position whilst her position with the Applicant had been a
permanent full time position and that Ms Togia was offered work for significantly fewer
hours each week than had previously applied when she worked for the Respondent. The
Applicant effectively advised Ms Togia that her position would be made redundant if she
accepted the offer of employment with Alliance and declined the offer of alternative
employment with the Applicant.
[7] Given that I found that the Applicant did not obtain other acceptable employment for
the employee I must dismiss the Application under Section 120 of the Act. Given that Ms
Togia’s employment with Australian Commercial Catering Pty Ltd ended on 25 October 2013
it would be inappropriate for there to be further delay in the payment of her entitlements.
COMMISSIONER
Appearances:
Mr P Darmos appeared for the Respondent.
Hearing details:
2014
Melbourne
April 8
Printed by authority of the Commonwealth Government Printer
Price code A, PR549577
THE FAIR WORK COMMISSION us TI
