DECISION

Fair Work Act 2009
s.120 - Application to vary redundancy pay for other employment or incapacity to pay

Stabler & Howlett Veterinary Surgeons Pty Ltd T/A Stabler & Howlett Veterinary Surgeons
(C2018/6630)

Variation of redundancy pay

Background

[1] This decision relates to an application under s.120 of the Fair Work Act 2009 (the Act) by Stabler & Howlett Veterinary Surgeons Pty Ltd T/A Stabler & Howlett Veterinary Surgeons (the Applicant) seeking an order to reduce the redundancy pay to which Ms Shannon Garnham is entitled. The application is made pursuant to s. 120(b)(i) of the Act on the basis that the Applicant asserts that it obtained other acceptable employment for Ms Garnham by offering an alternative position within the Applicant’s business, and that this offer was refused. The Applicant does not rely on s. 120(b)(ii) of the Act and does not assert that it could not pay any amount of redundancy to which Ms Garnham is entitled.

[2] It is not in dispute that Ms Garnham was employed by the Applicant for a period of nine years from 24 February 2009 until 23 November 2011 in a part-time position of Practice Manager working 30 hours per week at the rate of $39.33 per hour. Ms Garnham’s employment was covered by the Animal Care and Veterinary Services Award 2010¹ (the Award) which states that redundancy pay is provided for in the NES. It is also not in dispute that Ms Garnham’s employment was terminated by the Applicant because it no longer required the job to be done as provided in s. 119(1) of the Act and that the amount of redundancy pay to which Ms Garnham is entitled is 16 weeks in accordance with s. 119(2). The Applicant seeks that the redundancy pay be varied to nil.

[3] Directions were issued requiring that the parties file submissions, witness statements or documents in support of, and in response to, the application. A hearing was held on 3 January 2019. Dr Alistair Grant, Director appeared on behalf of the Applicant and Ms Garnham represented herself. Evidence for the Applicant was given by Dr Grant 2, Dr Bruce Anthony Howlett3 and Dr Letitia Grant.4 Dr Grant, Dr Howlett and Dr Grant are Co-Directors of the Applicant business. Ms Garnham gave evidence on her own behalf.5

Legislation

[4] Section 120 of the Act provides as follows:

“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.”

[5] Section 120 of the Act is an avenue for the employer to apply to the Commission to vary an obligation which would otherwise be imposed to make redundancy payments. That section provides that FWA “may” determine to reduce the amount of redundancy pay up to an amount which may be nil, indicating that the granting of full or partial relief from the obligation is an exercise of discretion in the circumstances of the case. The employer bears the onus of establishing that there are grounds justifying the exercise of the discretion.

[6] The terms of s.120(1)(b)(i) were previously found in the standard award provision established in the Termination, Change and Redundancy Case. 6 There have been a number of cases where the operation of the provision and the meaning to be given to terms within it, have been considered. In my view, the principles set out in those cases continue to be relevant. In Re Clothing Trades Award (1982)(1) Appeals by Derole Nominees Pty Ltd and ACM7 a Full Bench of the Australian Industrial Relations Commission said:

“The Award provision does no more than provide an avenue by which an employer may apply to the Commission to vary the obligation which would be otherwise imposed by the award. It does not follow from the terms of the clause that an employer coming within its scope will achieve necessarily full or partial relief. The level of relief, if any, to apply in a given case, is a matter to be determined as an exercise of discretion in the circumstances of that case.” 8

[7] The Full Bench also observed that effort of a sufficient kind by an outgoing employer may cause the obligation for redundancy pay to be reduced. 9 The meaning of the term “obtains” was derived by the Full Bench in that case from the Shorter Oxford Dictionary (3rd Edition) as: “to procure or gain, as the result of purpose and effort”. The Bench in adopting that definition noted that one employer is incapable at law of effecting a contract of employment between an employee and another employer, and went on to state that:

“The employer by purpose and effort may establish an opportunity which suits the employee and which crystallises as alternative employment of an acceptable kind...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.” 10

[8] In deciding whether to exercise discretion on the grounds that the employer has obtained acceptable alternative employment, the Commission must be satisfied that the employer took positive and proactive steps to obtain such employment, so that it can be said that the employer is a “strong moving force” 11 towards the creation of the opportunity for the employee to gain alternative employment.

[9] The question of what constitutes “acceptable alternative employment” has also been the subject of consideration in a number of cases, from which the following principles can be distilled:

•  The onus lies on an employer seeking exemption from redundancy provisions to establish that the alternative employment is acceptable; 12

• The term “acceptable” means that it is not “any” employment that will qualify; 13
• The test of whether alternative employment is acceptable is objective; 14
• Although the test it objective, it is applied to individual employees and their particular circumstances; 15
• The provision should not be interpreted so that employees have an unreasonable and uncontrollable opportunity to reject the new employment in order to receive redundancy pay. 16

[10] In determining whether alternative employment is objectively acceptable, consideration is given to factors including: whether service with the previous employer is recognised as service with the new employer; 17 the work being of a like nature; the location being not unreasonably distant; whether the pay arrangements comply with award requirements;18 pay levels; hours of work; seniority; fringe benefits; workload and speed; job security and other matters.19

[11] It is also relevant to the assessment that redundancy payments are not made solely for the purpose of assisting employees to find alternative employment. Redundancy payments are intended to tide an employee over during the search for alternative employment, and to compensate the employee for loss of credits for sick leave, long service leave and other entitlements based on length of service. 20

[12] The fact that an alternative position does not meet the personal preferences of an employee, is not sufficient to establish that the position is not an acceptable alternative. Where the employee does not co-operate with the employer in its efforts to obtain alternative employment 21, or where the employee refuses a position that is found to be acceptable on an objective basis, the employee’s entitlement to redundancy payment may also be reduced.22

Evidence and submissions

[13] Ms Garnham was employed by the Applicant as a Practice Manager from 24 January 2009 to 23 November 2018 on a part time basis, working 30 hours per week. The Applicant contends Ms Garnham’s role was largely administrative in nature, but tendered a position description for the Practice Manager role showing that Ms Garnham’s role also included managerial and operational duties including inventory control and policy development and compliance, surgical, general and medical nursing, reception duties and customer service. In this role Ms Garnham was paid $39.33 per hour. In October 2018 a decision was made by Dr Grant and the directors of the Applicant that due to operational requirements, a full-time Practice Manager was required and that the business could not sustain both a full-time and part-time Practice Manager.

[14] Dr Alistair Grant, Dr Howlett and Dr Letitia Grant met with Ms Garnham on 10 October 2018 and advised her that a full-time Practice Manager was required, and that the business could not afford to also pay a part-time Practice Manager if they were also employing another Practice Manager on a full-time basis. Ms Garnham states she was told there was a need for someone to oversee staff inductions, training and workflow, and that a new full-time position would be created and advertised. Dr Alistair Grant states that Ms Garnham acknowledged that the business needed a full time manager but was not willing to change her current work arrangements.

[15] It is Ms Garnham’s evidence that she was told by Dr Alistair Grant and Dr Howlett that she was not the person for the role, and was not suitable for the role as it was a full-time position. Ms Garnham agrees that she advised the Directors that she could not work full-time, and states that she was told her role and position description would be changing.

[16] Dr Alistair Grant said that an initial proposal was put to Ms Garnham where she would perform some of her existing administrative duties for 15 hours a week on her current hourly rate, and could perform customer service duties for another 15 hours a week, which would be paid at the same rate that other customer service staff were paid, being $23.99 an hour. Ms Garnham states she was told that she would have to forego her flexible working hours and would be required to work an “open and close shift” from 8.00am to 6.30pm at the Applicant’s North Mackay Clinic.

[17] Ms Garnham states that she asked why she was being moved to the North Mackay Clinic, and that she was told it was so she could cover the reception desk and free up the nursing staff at the Applicant’s Ooralea clinic. Ms Garnham further states that she was told that she was not to undertake administrative work during the hours allocated for reception work, and when Ms Garnham asked who would manage policies and procedures, workplace health and safety, contracts and employment related tasks, Dr Howlett advised that her that she would still manage these areas as she was really good at them. Ms Garnham states that she advised the Directors that she could not afford to take another pay cut and that she would need to think about this option. The meeting was adjourned to allow Ms Garnham time to consider the offer.

[18] At Ms Garnham’s request there was a further meeting on 18 October 2018 with Dr Alistair Grant and Dr Howlett, during which Ms Garnham stated that she did not accept the proposed changes, and said she currently felt underutilised in the business. Ms Garnham states her reason for refusing the proposed role was that she would lose her current flexible hours, would need to engage paid childcare for her children, and would suffer a reduction in pay. There was a further discussion about modifying Ms Garnham’s current role and job description, but Ms Garnham insisted that she could not change the hours or conditions that she worked under.

[19] It is Ms Garnham’s evidence that she told Dr Alistair Grant and Dr Howlett that she would have liked to have been consulted about the new full time Practice Operations Manager role, and that her circumstances could have changed. Ms Garnham also stated that she was told she had to “get out from behind her desk more” and Ms Garnham said that she had been attempting to do so, but was frequently instructed to go and do administrative work. Ms Garnham further states that Dr Howlett told her that her performance had slipped in the previous six months and Dr Alistair Grant told her that he thought she was currently overpaid for the work she did.

[20] The meeting concluded by Ms Garnham being requested to provide a list of her current duties so the directors could understand how Ms Garnham was spending her time at work. Ms Garnham states that she was told again that her role was changing in line with a change to the operations of the business, and that when she asked for further information about the full-time Operational Practice Manager role she was told that the job description was still being developed. Ms Garnham also asked about the remuneration and was told that salary for the role would be $60,000 to $80,000 per annum.

[21] A further meeting was held on 24 October 2018 where Ms Garnham provided a list of duties she undertook. There was a discussion about the list of duties where Ms Garnham explained how much time she estimated that she spent on each of her duties. Ms Garnham was also advised that she would work collaboratively in the proposed role with the new fulltime Practice Operations Manager and would still report to the directors of the business, and was shown an organisation chart. Ms Garnham was advised that following the meeting the Directors would review the list of duties in order to consider her role within the business. Dr Alistair Grant states that Ms Garnham indicated she was capable of performing the role of two other employees, being a rostering, payroll and accounts role and the role of an inventory manager.

[22] Ms Garnham attended another meeting on 6 November 2018. Prior to this meeting, the employee who undertook the rostering, payroll and accounts role informed the directors of her retirement. Based on this position becoming vacant, an offer of alternative employment was made to Ms Garnham as a Compliance and Office Manager. The basis of this offer was that Ms Garnham would perform her current duties for 20 hours per week in addition to 10 hours of the payroll, rostering and accounts role. The remuneration of the role was calculated by averaging 20 hours paid at Ms Garnham’s former rate and 10 hours of the casual rate that was paid to the employee who had undertaken the rostering, payroll and accounts role. This resulted in an amount of $36.42 per hour paid on a permanent part-time basis. 23 Ms Garnham was also offered responsibilities for a “Puppy Preschool” on a permanent basis, which Ms Garnham had been performing for five months prior. The evidence of the directors is that this would be undertaken in addition to Ms Garnham’s 30 hours of work to supplement her income.

[23] Dr Alistair Grant’s evidence was that the offer was open for negotiation in relation to duties and responsibilities of the new role, to make sure Ms Garnham felt she was well utilised within the business, and that it was made clear to Ms Garnham that she would report directly to the directors. It is not clear from the evidence whether Ms Garnham was informed that unlike the first proposal the 30 hours that Ms Garnham would have been required to work were to be worked at the same times as Ms Garnham worked in her current role, or at different times. Dr Alistair Grant also stated that at the meeting on 6 November 2018 he informed Ms Garnham that the proposed position was “open for further negotiation with regard to duties and responsibilities.” 24

[24] Ms Garnham states she was told that she and Dr Howlett would develop a job description for the Compliance and Office Manager role. Ms Garnham states that it was discussed that some duties she performed in her Practice Manager role would be removed, and that examples of these removed duties were “pet reminders” and staff meetings. Ms Garnham asked to have a week to consider the Compliance and Office Manager role. Ms Garnham states she was not given any documentation at the conclusion of the discussion.

[25] Ms Garnham sent an email on 6 November 2018 after the meeting asking when the change to her rate of pay would occur should she accept the offer of alternative employment, and what her options were if she did not accept the offer. Dr Howlett responded to this email in person and advised Ms Garnham that if she did not accept the offer there were no other positions available.

[26] Ms Garnham sent an email to the directors on 13 November 2018 stating that she did not accept the alternative offer of employment made on 6 November 2018 and proposing two options. Ms Garnham proposed a new position on the following terms:

•  Increase in salary from $39.33 to $45.20/hr

•  Continue with current duties in addition to payroll, training and document management

•  Puppy preschool not included in the above hourly rate therefore additional pay

•  Work Fridays on a 36hr week until 1pm to allow for extra responsibilities or 9-day fortnight

•  Change organisation structure – Report directly to operations manager or to the directors. 25

[27] Ms Garnham states she made this proposal for increased hours and an increased rate of pay based on her skills, over 20 years of experience, and qualifications including as a Certificate IV Veterinary Nurse, as a Justice of the Peace and a Bachelor of Accounting. I also note Ms Garnham’s hourly rate had been reduced in 2017 from $45.96 per hour to $38.00 per hour. This reduction was accepted by Ms Garnham although it doubtless informed her views in relation to alternative employment with the Applicant and the rate of $45.20 she proposed.

[28] Ms Garnham also advised that she considered a redundancy should be offered on the basis that her position was being changed due to operational needs of the business. Ms Garnham states that this option was based on advice she had received, and that this was her first proposal and she expected negotiations would continue.

[29] Ms Garnham was given a letter by Dr Alistair Grant on 15 November 2018 advising that a meeting was to be called and encouraging her to bring a support person to this meeting. Dr Alistair Grant also asked Ms Garnham to return her work laptop after she finished work that day. The meeting was convened on the following day, however Ms Garnham was advised that due to a change in circumstances the meeting could not proceed. It appeared from the evidence at the hearing that Dr Alistair Grant formed a view that the meeting could not proceed on the basis that he was concerned that Ms Garnham had been requested to provide the password for her work laptop and had provided an incorrect password and the Directors of the Respondent were concerned about Ms Garnham’s motives in this regard. Ms Garnham was not informed about this concern or the basis for it.

[30] The meeting was rescheduled and occurred on 23 November 2018. At the meeting Ms Garnham was handed a letter advising her that her position was being made redundant, providing written details of the Compliance and Office Manager role and stating that Ms Garnham had declined this offer of alternative employment. The letter also stated that Ms Garnham’s employment would be terminated immediately and that an application would be made to the Commission seeking that it determine redundancy payable to Ms Garnham in circumstances where she had declined an offer of redeployment. The letter states as follows:

“Dear Shannon,

As recently discussed with you, we confirm that as the result of a recent review of the operational requirements of Stabler + Howlett the position of Practice Manager is no longer needed and your employment will terminate.

We confirm that we have made attempts to find you alternate employment with Stabler + Howlett and offered you a new position of Compliance and Office Manager on 6 November 2018 to commence immediately. The details of that position are as follows:-

•  Job title: Compliance and Office Manager

•  Employee status: Permanent part-time

•  Hours: 30 hours per week

•  Remuneration: $36.42/hour

•  Reporting line: Directly to directors

•  Job roles:

•  To manage office administration including IT and telecommunication services and facility management and maintenance;

•  Management and maintenance of practice management software including software updates and data management;

•  Financial monitoring including budgeting and collation of end-of-month data;

•  Liaising with accountant regarding financial data and reconciliation;

•  WHS monitoring and maintenance;

•  Practice compliance including insurance and registrations;

•  Document and staff contract management;

•  Payroll and accounts payable;

•  Rostering.

We confirm that this position was discussed with you during the consultation process on 6 November 2018 and that you have stated clearly both during that meeting and by email letter dated 13 November 2018 that you do not accept the offer of redeployment.

In your letter of 13 November 2018 you make two proposals namely, an increase in your pay and a change in your duties or redundancy. We advise that we do not accept your proposal listed under Point 1 of your letter as this proposal does not suit the business requirements of Stabler + Howlett.

As such, this letter confirms the termination of your employment by way of redundancy. Your employment will end immediately. Based on your length of service, your notice period is four (4) weeks. In lieu of receiving that notice, you will be paid the sum of $4719.60.

You will also be paid your accrued entitlements and any outstanding pay up to and including your last day of employment including superannuation.

We advise that Stabler + Howlett will be seeking to have the Fair Work Commission determine the redundancy payable to you in circumstances where you have declined an offer of redeployment. We will provide you with a copy of the application form once this has been lodged with the Commission. We understand that the Commission will then be in contact with you directly with respect to the application.

We take this opportunity to thank you for your valuable contribution during your employment with us.”

[31] Ms Garnham states this was the first time she had been provided with the details of the alternative offer of employment in writing.

[32] The Applicant submits that that the offer of the Compliance and Office Manager role satisfies s.120(b)(i) of the Act as it obtained alternative employment for Ms Garnham, and that this offer would be considered objectively as acceptable employment having regard to: remuneration and compliance with award requirements; duties and responsibilities and nature of work; hours of work; seniority; workload and speed; job security and travel time/location of the role.

[33] The Applicant submits the pay rate offered to Ms Garnham is significantly higher than the rate for a Practice Manager contained in the Award, and that while Ms Garnham had qualifications as a veterinary nurse, Ms Garnham had advised that she could not perform veterinary nursing having not performed clinical nursing for around ten years, and that in any event the pay rate offered was above that of a Level 4 Veterinary Nurse under the Award. Further, the Applicant contends that although there was a reduction in the hourly rate compared to that of Ms Garnham’s former role, the alternative offer should still be considered objectively as an acceptable offer. The Applicant also states the puppy preschool responsibilities would have enabled Ms Garnham to earn additional remuneration.

[34] The Applicant submits the Compliance and Office Manager role had similar responsibilities to that of Ms Garnham’s former Practice Manager role. The duties of the Compliance and Officer Manager role were comprised of some of the duties of the Practice Manager role in addition to duties of the Payroll and Accounts Officer role, which Ms Garnham had previously indicated she was capable of performing in circumstances where the Payroll and Accounts Officer was absent from work. The Applicant considered the alternative role was suitable having consideration to Ms Garnham’s training, experience and qualifications, and that Ms Garnham was capable of undertaking the role. The Applicant also submits there was no change in the hours of work in comparison to Ms Garnham’s former role and that there was no change to Ms Garnham’s location of work. Ms Garnham submits that had she accepted the Compliance and Office Manager role, the times at when she would have been required to work meant that she would need to pay for childcare. As previously noted it is not clear from the evidence whether Ms Garnham was told that the 30 hours were to be worked at the same times as Ms Garnham worked in her current position.

[35] The Applicant further submits the alternative offer of employment did not involve a change to Ms Garnham’s level of seniority, as contended by Ms Garnham, as Ms Garnham would have continued to report directly to the Directors, and the position offered to Ms Garnham did not involve any additional oversight. In addition, the Applicant submits that the role offered to Ms Garnham was created through a reshuffle of management and administrative duties that were important to the running of the business, and that Ms Garnham’s length of service and accrued entitlements would not have been affected.

[36] Ms Garnham submits that the Applicant has not satisified s.120(1)(b)(i) of the Act. Ms Garnham contends that she was not offered the full-time Operational Practice Manager role. Ms Garnham states that she was advised she was not suitable for the full-time Operational Practice Manager role on 10 October 2018, and that the alternative role offered to her at that meeting, which involved 15 hours of administrative duties and 15 hours of customer service duties, required her to forego current working hours that she had negotiated in her Practice Manager role.

[37] Ms Garnham agrees that she was offered the Compliance and Office Manager role on 6 November 2018, but referred to a “Seek” job advert for the full-time Practice Operations Manager role that was posted on 6 November 2018 prior to Ms Garnham attending the meeting on that day. Ms Garnham contends the Compliance and Office Manager role was not an acceptable offer on the follow bases:

•  The role involved a demotion/ loss of seniority as team members would no longer report directly to Ms Garnham;

•  The role required Ms Garnham to work different hours which would have required her to engage paid child care assistance;

•  Despite the rate of pay for the role being above the Award requirement, the rate of pay for the offered role was $36.42 an hour where Ms Garnham was paid $39.33 an hour in her former role; and

•  Ms Garnham’s understanding was that the role would require her to complete duties that she previously undertook in 30 hours a week, in only 20 hours with 10 hours being dedicated to other duties.

[38] Ms Garnham also contends that the offer of the Compliance and Office Manager role was only made verbally and not in writing and that she made an offer in her email of 13 November 2018 to work additional hours to allow her to manage the entire work load. In response to a question from the Commission Ms Garnham conceded that she would not have been prepared to work on a full-time basis.

[39] In response to Ms Garnham’s evidence that the proposed Compliance and Office Manager was only made verbally, Dr Alistair Grant tendered an email from Ms Garnham to her husband dated 6 November 2018 said to evidence her clear understanding about the role. That email is in the following terms:

“Have had it. Am going to take on Stacey’s role, but not going to pay me more money.

Change to role and new job description > Compliance & Office Manager

Change to rate of pay > $36/hr roughly (this is worked out on 20 hrs at my current rate and 10 hrs at Stacey’s rate PLUS “they gave me Puppy Preschool” and they think that will be around $5000 per year to me to make up for the drop in pay). I worked out that if I average four pups per class that is $3840 per year and NOT guaranteed money (I didn’t say that to them).

Bronte & I work in consultation with the Operations Manager and we do no (sic) need to be “overseen” by them but work in conjunction with them. The partners will train the operations manager, but I will have to show them where everything is.” 26

Consideration

[40] As previously noted, it is not in dispute that Ms Garnham’s role was made redundant. Accordingly I am satisfied that Ms Garnham has an entitlement to redundancy pay pursuant to s.119 of the Act, subject to any order that the Commission may make. Relevantly, what now must be considered is whether the Applicant obtained other acceptable employment for Ms Garnham.

[41] Ms Garnham contends she was not offered the full-time Practice Operations manager role as she was not suitable for the role as she couldn’t work full time. I accept the evidence of the Applicant that although Ms Garnham (in her email of 13 November 2018) offered to work additional hours at a higher rate of pay, this did not suit the operational requirements of the business and that it required a full time Office Manager’s role rather than that role be performed on a part-time basis. I am also satisfied that Ms Garnham would not have accepted a full-time role.

[42] I accept that the Applicant engaged in a process of consultation with Ms Garnham once it had made the decision that the business required a full-time Practice Manager. The issues for determination are whether the steps taken by the Applicant in relation to the role it proposed for Ms Garnham are sufficient so that it can be said that it “obtained” employment for Ms Garnham and whether that employment is an acceptable alternative when compared to the role Ms Garnham held with the Applicant prior to her position being made redundant.

[43] It is clear that there were a number of discussions between Directors of the Applicant and Ms Garnham in relation to alternative employment. However I do not accept that the steps were sufficient to constitute the Applicant obtaining alternative employment for Ms Garnham. While there were numerous options for a new role discussed with Ms Garnham I am not satisfied that the discussions crystallised into an actual offer. The details of the role were not put in written form until 23 November 2018 when the proposed role was set out in a letter which also advised Ms Garnham that her employment was to be terminated because she had declined the position. That letter confirms that prior to 23 November 2018 the position had been discussed with Ms Garnham during a consultation process. That letter makes clear that a decision had already been made to terminate Ms Garnham’s employment on the basis of a view that she had rejected the position.

[44] That view was based on an email from Ms Garnham dated 13 November 2018 in which she made a proposal in relation to her ongoing employment. I do not accept that Ms Garnham can be said to have rejected an offer of an alternative position when she was still seeking to negotiate terms for her ongoing employment and had not been given details about the alternative position offered by the Applicant in writing so that she could properly have considered it. It is also the case that the question of when the 30 hours would have been required to be worked does not appear to have been determined even at that point. This is apparent from the conflicting submissions of the parties at the hearing.

[45] I am therefore not satisfied that the Applicant “obtained” alternative employment for Ms Garnham in the sense that it established an opportunity which suited Ms Garnham and which crystallised as alternative employment. This is because the numerous exchanges and discussions with Ms Garnham did not result in an offer which could reasonably have been accepted by Ms Garnham on the basis that the first time it was set out in written form was in a letter stating that Ms Garnham had not accepted the offer and her employment was terminated. As previously stated, that letter was given to Ms Garnham at a point where she was still seeking to negotiate the terms of her ongoing employment with the Applicant and had not been told that the Applicant had formed a view that negotiations had concluded, and where the Applicant had not put its final position to Ms Garnham in relation to the proposed alternative employment. Further, the significant matter of when the 30 hours per week were to be worked was not clearly established.

[46] I do not accept that emails sent by Ms Garnham to her husband complaining about the discussions in relation to alternative employment evidence that Ms Garnham had been offered alternative employment or that she had rejected an offer. The emails do no more than evidence that Ms Garnham was seeking to continue negotiations about the terms and conditions of the proposed position and was not satisfied with what had been articulated by the Applicant at that point. The email also does not evidence that Ms Garnham was not trying to negotiate her ongoing employment. In any event it was overtaken by the email sent to the Directors on 13 November 2018 in which Ms Garnham put a counter proposal in relation to her ongoing employment indicating a desire to continue negotiations.

[47] For these reasons, the Applicant has not taken steps sufficient to establish that it obtained alternative employment for Ms Garnham. In reaching this conclusion I accept that there is no rule that an employee must be given an offer of employment in writing before it can be found that an employer has obtained alternative employment for the purposes of deciding an application under s.120(b)(i) of the Act. However, in the present case, the ongoing discussions and range of options canvassed by the parties, the lack of clarity about working hours, the fact that Ms Garnham was still negotiating the alternative position, and the failure of the Applicant to make a firm final offer before terminating Ms Garnham’s employment, means that I am unable to be satisfied that the Applicant obtained employment for Ms Garnham.

[48] I also do not accept that the offer of alternative employment was acceptable in Ms Garnham’s particular circumstances. While the total weekly hours of work were the same, the times at which work was required were not clear and a change in this regard would have meant that Ms Garnham may have been required to engage paid child care assistance. The rate of pay for the proposed role was $2.91 per hour below Ms Garnham’s hourly rate equating to almost $90 per week less in gross earnings with corresponding decreases in other benefits including superannuation contributions. It is also the case that Ms Garnham would have had no team members reporting to her in comparison with her previous role notwithstanding that she would have reported to the Directors. While it is relevant that the rate offered was above the Award rate it was not determinative in the present case particularly when the rate offered for the proposed role is below the rate that Ms Garnham was paid in her former role. I do not accept that the puppy preschool earnings were sufficiently certain to offset the reduction in Ms Garnham’s hourly rate.

[49] On balance I do not accept that the Applicant obtained alternative employment for Ms Garner or that the alternative employment proposed by the Applicant was acceptable.

Conclusion

[50] The application by Stabler & Howlett Veterinary Surgeons Pty Ltd is dismissed and an Order to that effect will issue with this Decision.

DEPUTY PRESIDENT

Appearances:

Dr Alistair Grant on behalf of the Applicant.

Ms S Garnham on her own behalf.

Hearing details:

3 January.

2019.

Printed by authority of the Commonwealth Government Printer

<PR705255>

1 MA000118

 2   Exhibit A1 Witness statement of Alistair Grant sworn 20 December 2018.

 3   Exhibit A2 Witness statement of Bruce Anthony Howlett sworn 20 December 2018

 4   Exhibit A3 Witness statement of Letitia Grant sworn on 20 December 2018.

 5   Exhibit R1 Witness Statement of Shannon Jane Garnham dated 28 December 2018.

 6   Amalgamated Metals, Foundry and Shipwrights Union v Broken Hill Pty Co Ltd, Whyalla (Termination, Change and Redundancy Case) (1984) 8 IR 34, Whyalla Termination, Change and Redundancy Case); Print F6230.

 7   (1990) 140 IR 123

 8   Re Clothing Trades Award (1982)(1) Appeals by Derole Nominees Pty Ltd and The Australian Chamber of Manufactures (1990) 140 IR 123 at 126.

 9   Ibid p. 129.

 10   Derole op.cit. (1990) 140 IR 123 at 126.

 11   Derole op.cit. (1990) 140 IR 123 at 128.

 12   Clothing and Allied Trades Union v Hot Tuna (1998) 27 IR 226 at 231.

 13   Derole op.cit. at 128.

 14   Derole op.cit. (1990) 140 IR 123 at 128; Clothing and Allied Trades Union v Hot Tuna (1998) 27 IR 226 at 230-231.

 15   Derole op.cit. (1990) 140 IR 123 at 129 - 130.

 16   Ibid p. 128.

 17   Amalgamated Metals, Foundry and Shipwrights Union v Broken Hill Pty Co Ltd, Whyalla (Termination, Change and Redundancy Case) (1984) 8 IR 34 at 75, Whyalla Termination, Change and Redundancy Case); Print F6230 at 48.

 18   Re Clothing Trades Award (1982)(1) Appeals by Derole Nominees Pty Ltd and The Australian Chamber of Manufactures (1990) 140 IR 123 at 128.

 19   Clothing and Allied Trades Union v Hot Tuna (1998) 27 IR 226Ibid at 230-231.

 20   Termination, Change and Redundancy Case op.cit. (1984) 8 IR 34 at 75.

 21   Re Algray Pty Ltd AIRC Print H7232 [C037] 6 March 1989 per Merriman C cited in Derole op.cit. at 129.

 22   Derole op.cit. at 129.

 23   Witness Statement of Alistair Grant sworn 20 December 2018 at 10.

 24   Exhibit A1 paragraph 11

 25   Applicants submissions filed 21 December 2018 at Annexure E.

 26   Exhibit A1 Annexure C.