DECISION

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

Kresta Blinds Ltd
v
Ms Sharon Bryant
(C2020/1584)

Application to vary redundancy pay – whether applicant obtained other acceptable employment for employee – exercise of discretion to reduce the amount of redundancy pay by a specified amount – order issued.

[1] Kresta Blinds Ltd (Kresta) has made an application to the Fair Work Commission (the Commission) for a variation to the redundancy pay to be paid to Ms Sharon Bryant.

[2] The application is made pursuant to s.120(b)(i) of the Fair Work Act 2009 (the Act) on the basis that Kresta asserts that it obtained other acceptable employment for Ms Bryant by obtaining other acceptable employment for Ms Bryant, and this employment was refused.

[3] Mr Bryant commenced employment with Kresta on 29 February 2016 and was employed by Kresta until 13 April 2020. It is not in dispute between the parties that Ms Bryant’s employment was terminated by Kresta because it no longer required the job to be done as provided in s.119(1) of the Act. Pursuant to the terms of the General Retail Industry Award 2010, which applied to Ms Bryant’s employment, she would otherwise be entitled to eight weeks’ redundancy pay under the National Employment Standards (NES) within the Act.

[4] Kresta seeks that Ms Bryant’s redundancy pay be varied to nil for the reason that it obtained other acceptable employment for her.

Legislation

[5] As noted above, the application is made pursuant to s.120 of the Act which provides the following:

“120 Variation of redundancy pay for other employment or incapacity to pay

(1) This section applies if:

(a) an employee is entitled to be paid an amount of redundancy pay by the employer because of section 119; and

(b) the employer:

(i) obtains other acceptable employment for the employee; or

(ii) cannot pay the amount.

(2) On application by the employer, the FWC may determine that the amount of redundancy pay is reduced to a specified amount (which may be nil) that the FWC considers appropriate.

(3) The amount of redundancy pay to which the employee is entitled under section 119 is the reduced amount specified in the determination.”

Conference and Hearing

[6] On 24 March 2020 I convened a telephone conference between the parties. Whilst Ms Bryant had served her last day of work on 20 March 2020, the employment was still on foot until 13 April 2020.

[7] A telephone hearing was held on 28 April 2020. Ms Carrie Xhu, Human Resource Officer, appeared on behalf of Kresta. Ms Bryant appeared on her own behalf.

Employment with Kresta

[8] Ms Bryant commenced employment on 29 February 2016 in the position of Showroom Manager at the Curtain Wonderland store located in Ipswich, Queensland. At the time Curtain Wonderland was a wholly owned subsidiary of Kresta.

[9] Following discussions initiated by Ms Bryant to change her employment status, she was appointed to the part-time position of Showroom Consultant on 29 August 2016, working 15.5 hours per week. On 17 July 2017, Ms Bryant’s weekly hours increased to 30.5 hour per week. On 1 July 2018, her hours were decreased to 20 hours per week. She worked 9:00am to 5:00pm Thursday, Friday and Saturday with an hourly rate of $22.26. The approximate travel time from her home to work was around 35 minutes.

Sale of Curtain Wonderland

[10] On 3 January 2020 Kresta issued the following media release:

“Kresta Holdings Limited (Company) (ASX:KRS) has entered into an agreement with Hong Kong based company, Champ Profit Industrial Limited (CPI), for the sale of all the shares in its wholly owned subsidiary, Curtain Wonderland Pty Ltd ACN 009 940 783 (Curtain Wonderland). This transaction was completed on 31 December 2019.

CPI is not a related party of the Company or a substantial shareholder of the Company.

The sale of Curtain Wonderland will allow the Company to focus on its remaining sales, distribution and manufacturing divisions.

The consideration for the sale is AUD$1.00, in recognition of the net liabilities of Curtain Wonderland as at 1 December 2019 of approx. AUD$5,903,817.60 and is being conducted on an "as is; where is" basis. The financial impact for the Company will be reduction in net liabilities of approx. $5.9 million.

ASX has advised that the sale does not require shareholder approval. During the period between the pricing benchmark date of 1 December 2019 and the completion date, the Company will be entitled to any profits generated by Curtain Wonderland and CPI will be required to bear the losses incurred by Curtain Wonderland. The Company is however, obliged to maintain the ordinary operation of Curtain Wonderland during this period.

It has also been agreed separately that the Company's finance and payroll team will provide support to CPI for a period of 6 months following completion of the sale for no additional consideration.

This announcement is authorised for release by Mr Xianfeng Lu, Chairman, Kresta Holdings Limited.”

Termination of employment

[11] Kresta submitted that prior to 9 March 2020, Ms Jill Willmore, Regional Manager, informed Ms Bryant that the Ipswich store was closing and that another position at an associated entity was available for Ms Bryant to be redeployed to. Ms Bryant sent the following email on 9 March 2020:

“Over the weekend I have had time to reflect on the closure of the Ipswich Showroom. I have given so much thought to the Part Time role at Curtain Wonderland but I do not believe I have enough information to make an informed decision. Such as, position description, pay rate, which days of the week, start date, start and finish times, location and what happens with my current entitlements.

I also believe I am entitled to notice in writing of the Showroom closure and the implications this has to my role.

Can you please arrange for this information to be emailed to [email redacted].

Jill, I would like to take this opportunity to say that I have enjoyed my time at Kresta especially within the Ipswich team. I know the closing of the Showroom has not been easy for you. I want to thank you for your unwavering support and guidance over the years.” 1

[12] Later that afternoon Ms Zhu sent an email to Ms Bryant. Attached to the email was a letter dated 9 March 2020 titled “Consultation about redeployment”, that included the following:

“As you know, the Ipswich store where you work for will be closed on 03 April 2020. Therefore, jobs in this store no existing anymore. However, the company would like to continue your employment. Therefore, there are a few suggestions for your consideration. Regarding for your arrangements as below:

Option 1. A Booking Clerk role for Curtain wonderland which located in head office at Coopers Plains. This role can be part time or full time. The shifts for part time will be arranged according to your availability and business requirement. The salary is $23.12 per hour.

Option 2. An Installation Booking Clerk for Kresta which located in head office at Coopers Plains. This role is full time. The pay is $878.5 per week.

Option 3. A Showroom Consultant for Curtain Wonderland in the Jindalee store. This role is part time. The shifts for part time will be arranged according to your availability and business requirement. The salary is $22.26 per hour.

Option 4. A Showroom Consultant for Curtain Wonderland in the Toowoomba store. This role is part time. The shifts for part time will be arranged according to your availability and business requirement. This role is part time. The pay is $22.26 per hour.

You are currently working as Showroom Senior Consultant (Part Time) at Kresta Blinds. Considering the duties what you are currently doing, so we provide the same and similar roles to you. In addition, the new work locations are closed to your current workplace. The salary is same or higher than your current payment. Please consider the options and let me know which one is your preference. We will actively consider your feedback or any other suggestions that you may have.”

[13] Ms Bryant submits that following receipt of this letter, she sought further information from Kresta regarding the redeployment options. The information she sought included a position description, patterns of work and whether her current entitlements would be recognised in the new position.

[14] On 10 March 2020 Ms Zhu emailed Ms Bryant as follows:

“Hi Sharon

Your all [entitlements] can be transferred to CW.”

[15] Ms Bryant responded:

“Thank you for your prompt reply regarding my current entitlements but what about my other question?”

[16] On 11 March 2020 Ms Zhu responded:

“CW is run independently recently, however, we have obtained other acceptable employment for you in both CW and Kresta.”

[17] On 12 March 2020, Ms Zhu sent a further email to Ms Bryant as follows:

“According to your feedback, please see my below comments:

1. Option 3 and option 4 is redeployment and your current entitlements can be transferred.

2. We do consider your current location, from your place to Ipswich store is about 35 mins, to Jindalee store about 45 mins, to Toowoomba store about 40 mins, to Coopers Plains about 50 mins, the travelling time variation is only between about 5 mins to 15 mins.

3. Since we have a few options for your redeployment, we would like to continue your further employment.

If you need further information, please feel free to let us know. Thank you.”

[18] On 13 March 2020, Ms Zhu requested that Ms Bryant provide her decision by 16 March 2020.

[19] On 16 March 2020 Ms Bryant sent the following email to Ms Zhu:

“Thank you for your latest email on Friday 13th March. I refer to your email on Wednesday 11th March at 9.15 am, I have sought advice on the options offered, and again, I advise that none of the options offered are suitable to me. The advice given to me is that I am within my rights to decline the offers on the grounds I have previously advised.

I have also been advised that Kresta Holdings Limited is not in a position to offer employment at Curtain Wonderland, due to it not being an associated entity (i.e. a division of Kresta Holdings Limited) as per the Fair Work Act and your email advising that Curtain Wonderland is run independently of Kresta Holdings Limited. I have attached the 03 January 2020 ASX ANNOUNCEMENT SALE OF CURTAIN WONDERLAND

My advice is that this is a clear case of redundancy, due to the closure of the Kresta Ipswich Showroom and as per your email advising that my job no longer exists, this therefore means, that I am entitled to the redundancy payments as per the Fair Work Act. I therefore ask for you to confirm in writing as to, my final day of employment, and what my redundancy entitlements are, and when my entitlements will be paid.”

[20] Ms Zhu responded the same day, stating that Kresta maintained its position that other acceptable employment options have been obtained for Ms Bryant, however she had rejected the options. Attached to the email was a letter of termination, outlining that Ms Bryant’s employment was terminated by reason of redundancy. The letter included the following:

“Regarding the redundancy pay, as we believe that we have obtained other acceptable employment for you. In addition, the business is the position to offer you the acceptable employment. However, you rejected all the acceptable employment options. We are waiting for the confirmation from Fairwork at this stage, we will let you know the final decision from Fairwork.”

[21] An application for a variation to the redundancy pay to be paid to Ms Bryant was lodged on 16 March 2020.

Activity beyond the conference of 24 March 2020

[22] Noting that Ms Bryant was still within her notice period, and there was still the opportunity to ‘save’ the employment, following the conference on 24 March 2020, Kresta provided to Ms Bryant a position description of the Booking Clerk role in Option 1, together with the proposed hours of work.

[23] Ms Bryant replied to Ms Zhu on 3 April 2020, apologising for any delay in replying. Ms Bryant raised concerns as to why the position description of Booking Clerk was provided to her as it was advised previously the position was no longer an available option. Ms Bryant stated in her email the following:

“I am left bewildered by the description and as to why the details of the part time Booking Clerk role was sent to me. Also, as you claim that the business is in a position to offer acceptable employment, I have never been provided with written authorisation from CPI that supports this.

As the matter is before Commissioner Hunt as the business is seeking to reduce my redundancy pay to zero and as I believe that the business is not open to a discussion regarding this, I therefore seek redundancy pay for my period of continuous service with Kresta Blinds Ltd on termination of my employment with a redundancy pay period of 8 weeks.”

[24] On 6 April 2020 Ms Zhu responded as follows:

“Just make clear CW is no longer part of KHL group, it's a completely stand alone company. I have explained to you before that it is two different entities.

Regarding your deployment: CW was able to process your entitlements and service period from KHL to CW during that stage just like what I had been explaining to you. However, you rejected the acceptable employment so you were paid out your notice period and entitlements according to your decision, and that’s why we applied to reduce your redundancy fee as we believed the options were acceptable.

We respect your decision to not accept any options, so we will request Fairwork to process our application regarding this matter.”

Submissions and Evidence

[25] In its written submission, Kresta submitted that Option 3 (Showroom Consultant for Curtain Wonderland – Jindalee) and Option 4 (Showroom Consultant for Curtain Wonderland – Toowoomba) presented to Ms Bryant were equivalent to her position at the Ipswich store with regard to duties, days of work and payrate. Kresta acknowledged that distance and travel time to the two stores would have increased, with Jindalee being 64 kilometres and 45 minutes travel time and Toowoomba being 55 kilometres and 40 minutes travel time (as opposed to the 35 minutes it took Ms Bryant to travel to the Ipswich store).

[26] Kresta submitted that Option 1 (Booking Clerk for Curtain Wonderland) and Option 2 (Installation Booking Clerk for Kresta) differed from Ms Bryant’s role in duties, working patterns and payrate from Ms Bryant’s position at the Ipswich store. The pattern of work for the days of work for the Booking Clerk position were Monday, Tuesday and Wednesday from 8:30 am to 5:00 pm, totalling 24 hours per week at $23.12 per hour. The Installation Booking Clerk position was a full-time position and the rate of pay $878.50 per week.

[27] On 17 April 2020, Kresta submitted the following:

[28] Kresta submitted that all the positions would retain Ms Bryant’s continuity of service. That is, Kresta was working with the new owner of Curtain Wonderland, CPI. The sale was not complete, and Kresta was, for a period of around six months working with CPI. Ms Bryant’s service would transfer to Curtain Wonderland.

[29] During the hearing Ms Bryant assisted with estimated travel times from her home to the various locations and provided the following:

(a) Ipswich 40km: 30 – 45 minutes

(b) Coopers Plains 64km: 40, 50 minutes up to 110 minutes (although I understand her evidence to have meant 1hr 10mins);

(c) Jindalee 64km: 45 – 55 mins;

(d) Toowoomba 55km: 45 – 55 mins.

[30] Ms Bryant took issue with the consultation process relevant to redeployment, submitting that she was not provided with sufficient information to make an informed decision regarding the options available to her. 2 Ms Bryant said that she was not provided with a position description for the position at the Jindalee Store and for the position at the Toowoomba store, and was only provided with the position description for the Booking Clerk position on 27 March 2020.

[31] In response, Kresta submitted that it was of the view that it “provided enough and clear information regarding all the options” and that Kresta “maintain the open mind to receive any questions if Ms Bryant asks, and we believe answered all the questions according to Ms Bryant's request”. 3

[32] Ms Bryant also raised the issue regarding the transfer of her entitlements and job security if she accepted a position offered in Option 1, 3 or 4. During the hearing, I asked Ms Bryant what her concern was with the potential for job security with the new employer. Our exchange is as follows: 4

[33] During the hearing, Ms Bryant also stated that she did not receive sufficient information regarding options for part-time roles in Options 3 and 4. 5 In response, Kresta stated that Ms Bryant did not raise an any questions about the part-time role arrangements, and instead, her questions were in regards to her entitlement and continuity of service.6

[34] In material provided to the Commission by Ms Bryant, and during the hearing, Ms Bryant stated that she did not wish to work in the Installation Booking Clerk role. She considered this to be a back-end role, and her strengths are in front-end, face-to-face customer interaction and customer service. I had the following exchange with Ms Bryant: 7

[35] Relevant to the Showroom Consultant roles at either Jindalee or Toowoomba, Ms Bryant stated that she was not provided with the position descriptions for these roles. During the hearing Ms Zhu pointed out that the role was the same role Ms Bryant was performing prior to being dismissed. As to the days of the week Ms Bryant might have performed work in either of these stores, Ms Bryant was critical of Kresta for not informing her which days they might have been. During the hearing she confirmed that she had a great deal of flexibility with her working days, with typically only restrictions on Wednesdays. 8 The following was discussed:9

[36] During the hearing Ms Bryant stated that she was mostly concerned with the recognition of her service than she was with the alternative roles offered to her. 10

Authorities

[37] Kresta requests the Commission reduce Ms Bryant’s redundancy payment to nil on account of it having obtained other acceptable employment for her.

[38] Prior to the term in s.120 of the Act stating the Commission can make an order relevant to whether the employer obtains other acceptable employment, provisions in awards made pursuant to the Workplace Relations Act 1996 referenced the term ‘acceptable alternative employment’. I consider it suitable to have regard to precedents where the consideration was, at that time, whether the employer obtained acceptable alternative employment.

[39] In Spotless Services Australia Limited t/as Alliance Catering 11 Deputy President Sams usefully identified the authorities relevant to “other acceptable employment” and the task to be performed by the Commission where he stated:

“[60] The question of what constitutes ‘other acceptable employment’ in the context of a redundancy situation, has been considered by the Commission and its predecessors in many and varied circumstances and industries over a number of years. In Derole Nominees, a Full Bench of the Australian Industrial Relations Commission (AIRC) said at pp 128-129:

‘What constitutes “acceptable alternative employment” is a matter to be determined, as we have said, on an objective basis. Alternative employment accepted by the employee (and its corollary, alternative employment acceptable to the employee) cannot be an appropriate application of the words because that meaning would give an employee an unreasonable and uncontrollable opportunity to reject the new employment in order to receive redundancy pay; the exemption provision would be without practical effect.

Yet, the use of the qualification “acceptable” is a clear indication that it is not any employment which complies but that which meets the relevant standard. In our opinion there are obvious elements of such a standard including the work being of like nature; the location being not unreasonably distant; the pay arrangements complying with award requirements. There will probably be others.

This approach to the test demonstrates that any alternative employment available to the eighteen former employees of the company cannot be regarded as “acceptable” merely because a number of other former employees took up employment at the new location. The relevant aspects of the job must be examined objectively to determine whether the employment is “acceptable”.

…

The exemption provision imports the notion that an effort of a sufficient kind by an outgoing employer may cause his obligation for redundancy pay to be reduced; a decision by an employee not to co-operate with the employer may well disentitle the employee to all or some of the payment.’ (my emphasis)

[61] In Oscar Oscar Group Services Pty Ltd v Lees [2012] FWC 3901 (‘Oscar Oscar’), Commissioner Asbury (as Her Honour then was), said at paras [18]-[19]:

‘[18] The question of whether alternative employment is acceptable, must be assessed on an objective basis. It is 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. The question of whether previous service with the previous employer is recognised as service with the new employer, will also be relevant.

[19] Other considerations will be whether the alternative employment is of a like nature; a reasonable distance from the previous employment; whether pay and conditions are comparable; hours of work and job security in relation to the new position. The fact that an alternative position does not meet the personal preferences of an employee, may place the right to receive full redundancy pay at risk, where the employee refuses a position that is found to be acceptable on an objective basis.’ (my emphasis)

[62] Senior Deputy President Watson in Feltex said at a para [33] and [89]:

‘[33] The parties accept, as do I, that matters to be considered in assessing whether alternative acceptable employment has been obtained include matters such as pay levels, hours of work, seniority, fringe benefits, workload and speed, job security, the location of work, continuity of service and accruals and the application of probationary periods. The relevant authorities also demonstrate that this listing of matters is not exhaustive and the question of whether an employment is acceptable alternative employment will be decided on the peculiar facts of a matter. Further, the authorities suggest that acceptable employment is not synonymous with identical employment, although the basis of the 2004 variation of the TCR test case provision suggests that, whilst not identical, terms and conditions should be substantially similar and no less favourable, overall, than the terms and conditions applicable to the employee at the time of the redundancy.

…

[89] I accept the proposition advanced by Feltex Australia that acceptable alternative employment is not necessarily identical employment and that the AIRC has previously found alternative employment to be acceptable notwithstanding inconvenience to employees and some detrimental alteration to the terms and conditions of employment.’

[63] In Vicstaff Pty Ltd (t/as Stratco) v May (2010) 204 IR 233 (‘Vicstaff’), Bissett C said at paras [29]-[30]:

‘[29] The determination of whether or not alternative employment is acceptable must be determined objectively and not subjectively from the perspective of the employer or employees. That the alternative employment may be rejected does not objectively make it unacceptable nor does the fact that the employment was offered make it, by virtue of the offer, acceptable. Further, that one of the persons out of a group may have accepted the employment does not make the employment acceptable for the others in the group. The reasons for the acceptance of alternative employment are many and varied and general conclusions should not be drawn from a particular circumstance.

[30] It is therefore incumbent upon the employer (Vicstaff) in this matter to demonstrate that the alternative employment is acceptable taking into account all matters relevant in such a consideration. Had the alternative work been considered acceptable to the individuals one imagines they would have accepted the work offered.’

[64] In DRW Investments t/as Wettenhalls v Timothy Richards & Others [2016] FWC 461, I said at para [183]:

‘[183] Notwithstanding the above general principles, whether the alternative employment is acceptable, will likely include consideration of the following matters:

•  rate of pay;

•  hours of work;

•  work location;

•  seniority;

•  fringe benefits;

•  workload;

•  job security;

•  continuity of service;

•  accrual of benefits;

•  probationary periods;

•  carer’s responsibilities; and

•  family circumstances.

This list is not exhaustive. There may be other relevant factors.’

[65] The above decisions have some common features, including:

•  The test of what constitutes ‘acceptable employment’ is an objective one. It does not mean it must be acceptable to the employee.

•  ‘Acceptable employment’ is not identical employment, as no two jobs could be exactly the same.

•  An employee must meaningfully cooperate with the employer in exploring or considering options for alternative positions.

•  An employee’s prima facie entitlement to redundancy pay may be at risk if the employee refuses a role or position, which is found to be objectively ‘acceptable’.

•  The acceptance of alternative employment by one or more persons in a group of redundant employees, does not necessarily make the alternative employment ‘acceptable’ for all of them. Each employee’s individual circumstances must be taken into account.

•  There are a range of factors of varying weight, according to an employee’s particular circumstances, which may be taken into account to assess the acceptability of alternative employment.”

[40] In deciding the present matter, I adopt the approach set out by the Deputy President and the authorities referred to by him.

Consideration

Was Ms Bryant “entitled to be paid an amount of redundancy” (s.120(1)(a))?

[41] It is common ground between the parties that Ms Bryant’s employment with Kresta came to an end because her position was made redundant. Consequently, I am satisfied that Ms Bryant is entitled to be paid an amount of redundancy pay by Kresta because of s.119 of the Act. Section 120(1)(a) of the Act has been established. The amount is eight weeks’ pay.

Did Kresta “obtain” other employment for Ms Bryant (s.120(1)(b)(i))?

[42] Ms Bryant does not dispute that Kresta “obtained” other employment for her either within Kresta or within Curtain Wonderland. Consequently, I am satisfied that in so far as s.120(b)(i) requires an employer to “obtain” other employment, Kresta did so for Ms Bryant. Therefore, part of s.120(1)(b) of the Act has been established.

Was the employment “acceptable” (s.120(1)(b)(i))?

[43] While Ms Bryant weighed up the variables between her role and the alternative employment offered to refuse the alternative employment, that is not the relevant test before the Commission in determining this application. An objective test must be applied.

[44] It is not necessary that the redundant role and the role(s) offered be identical in order for the latter role to be acceptable.

[45] Relevant to the roles offered working with Curtain Wonderland, being options 1, 3 and 4, one contention was whether CPI, as the new owner of Curtain Wonderland would take on Ms Bryant’s service, affording her continuation of her entitlements such as sick leave, long service leave and service for the purposes of any future redundancy. I accept Ms Zhu’s evidence on behalf of Kresta that Ms Bryant’s service would be recognised by CPI as the new owner of Curtain Wonderland. Regrettably, Ms Bryant placed much reliance on the media release at [10] and was not open to Kresta’s assurances that her service would continue with CPI. I am satisfied her service was to be recognised, resulting in her entitlements being recognised.

[46] For the calculations below I have used an approximate 35-minute travel time from Ms Bryant’s home residence to the Ipswich store at which she worked.

Option 1 – Booking Clerk – Curtain Wonderland – Coopers Plains

[47] Ms Bryant would have been required to travel for approximately 15 minutes more each way per day from her home when travelling to Coopers Plains as opposed to Ipswich. The rate of the new role was $0.86 per hour greater than her Showroom Consultant role.

[48] I have had regard to Ms Bryant’s evidence that the Installation Booking Clerk is not a role that she would particularly enjoy, as she considered her strengths lie in customer-facing roles. She agreed during the hearing that she had the necessary skills to perform the role. Kresta’s evidence at [27] is that the role still required customer service. I have considered what was stated by Commissioner Asbury (as Deputy President Asbury then was) in Oscar Oscar at [39] in this decision.

[49] It was proposed by Kresta that the days of work be Monday, Tuesday and Wednesday, and noting Ms Bryant’s unavailability to work some Wednesdays, I am satisfied that Kresta was prepared to explore with Ms Bryant her capacity to work part-time across any of the days of the week. This could not be explored in great detail due to Ms Bryant turning the role down.

[50] The additional travel, while inconvenient, would not have been onerous. Ms Bryant’s evidence is that she has full use of her motor vehicle without any requirement to share her vehicle. I consider that the additional hourly pay would help to offset some of the additional travel Ms Bryant would be required to do. Whilst it is not a significant amount weekly, on account of part-time hours, the highly hourly pay would apply when Ms Bryant went on leave and would be payable on long service leave payments.

[51] For the reasons explained in [45], I am satisfied Ms Bryant’s service was to be recognised.

[52] In all of the circumstances, I consider that the role obtained for Ms Bryant was acceptable.

Option 2 – Installation Booking Clerk – Kresta – Coopers Plains

[53] For the reasons that Ms Bryant was only working part-time, and this role was a full-time role, I do not consider that the role obtained for Ms Bryant was acceptable.

Option 3 – Showroom Consultant – Curtain Wonderland – Jindalee

[54] Ms Bryant would have been required to travel for approximately 10 minutes more each way on Kresta’s calculation, or 10-20 minutes on Ms Bryant’s calculation more each way per day from her home when travelling to Jindalee as opposed to Ipswich. The rate of the new role was the same as her role at the Ipswich store.

[55] The days of the week Ms Bryant would work in this role was, according to Kresta by 17 April 2020, flexible. I note that this evidence was made shortly following the effective date of dismissal of 13 April 2020, and before the hearing of this application. I accept that Ms Bryant made relevant inquiries on 9 and 10 March 2020 about the days of the week she would be required to work in this alternative role, and the hours of work. However, from being informed of her termination on 16 March 2020, Ms Bryant made little or no attempt to understand what days of the week would be worked for the option 3 role. Similarly, Kresta did not make any concerted effort to explore this issue with Ms Bryant, it would appear due to Ms Bryant’s affirmative declaration on 16 March 2020 that she had good grounds to be paid her full entitlement to redundancy pay.

[56] As I have found at [50], the additional travel, while inconvenient, would not have been onerous.

[57] For the reasons explained in [45], I am satisfied Ms Bryant’s service was to be recognised.

[58] In all of the circumstances, I consider that the role obtained for Ms Bryant was acceptable.

Option 4 – Showroom Consultant – Curtain Wonderland – Toowoomba

[59] Ms Bryant would have been required to travel for approximately 5 minutes more each way on Kresta’s calculation, or 10-20 minutes on Ms Bryant’s calculation more each way per day from her home when travelling to Toowoomba as opposed to Ipswich. The rate of the new role was the same as her role at the Ipswich store.

[60] For the reasons explained in paragraphs [55] to [57], I consider the role obtained for Ms Bryant was acceptable.

Should the amount of redundancy pay be reduced (s.120(2))?

[61] Section 120(2) of the Act invests the Commission with discretion to reduce the amount of redundancy pay by a specified amount. It does not automatically follow that a finding that the other employment obtained by Kresta for Ms Bryant was acceptable will result in the redundancy pay being reduced to nil.

[62] Having regard to Ms Bryant’s age of 50 years, and the current economic climate due to the COVID-19 pandemic, I hold concerns for Ms Bryant’s ability to secure acceptable employment in the foreseeable future.

[63] Further, I have had regard to the fact that Ms Bryant was a part-time employee, working only 20 hours per week. Her weekly wage, on my calculation of $22.26 per hour is $445.20. The entitlement to redundancy pay in s.119 of the Act is to only the base rate of pay. Section 16(1) of the Act defines the base rate of pay to exclude loadings or penalty rates, and accordingly any additional payment to Ms Bryant on account of typically working Saturdays is not to be included.

[64] I am satisfied that the amount of $445.20 per week is not a substantial weekly amount so as to be a large burden on Kresta.

[65] I have had regard to the fact that Kresta did not require Ms Bryant to work out all of her notice period, and she was excused from attending work from 20 March 2020 to 13 April 2020 to allow her to job-seek.

[66] I have decided to exercise my discretion to reduce the redundancy payment owed to Ms Bryant from eight weeks to three weeks. Kresta will be ordered to pay to Ms Bryant the amount of $445.20 x 3 weeks = $1,335.60. It is expected the amount to be paid to Ms Bryant will be treated for tax purposes as a bona fide redundancy, however that is a matter for Kresta to inform itself on.

[67] An Order (PR720793) consistent with the foregoing will be issued at the same time as this Decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR720792>

 1   Exhibit R1, document 1.

 2   Transcript of proceedings, PN 296.

 3   Ibid, PN924.

 4   Ibid, PN299-315.

 5   Ibid, PN349.

 6   Ibid, PN 355.

 7   Ibid, PN332-337.

 8   Ibid, PN156.

 9   Ibid, PN259 – 270.

 10   Ibid, PN80.

 11    [2016] FWC 4505.