DECISION

Fair Work Act 2009
s.120—Redundancy pay

Aisle 4 Pty Ltd T/A Greener Grocer
v
Nicola Hawkins
(C2021/2433)

Application to vary redundancy pay – whether applicant obtained other acceptable employment for employee – finding that the applicant obtained the employment – finding that the employment was not acceptable on account of significant reduction in pay and loss of continuity of service – redundancy pay not varied.

[1] Aisle 4 Pty Ltd T/A Greener Grocer (the Applicant) has made an application pursuant to s.120(b)(i) of the Fair Work Act 2009 (the Act) to the Fair Work Commission (the Commission) for a variation to the redundancy pay to be paid to its former employee, Ms Nicola Hawkins.

[2] Ms Hawkins commenced employment with the Applicant on 3 February 2015 as a casual employee. She converted to permanent full-time employment in December 2015 and was employed until 26 April 2021. It is not in dispute between the parties that Ms Hawkins’ 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. Pursuant to the terms of the General Retail Industry Award 2010, which applied to Ms Hawkins’ employment, she would otherwise be entitled to 11 weeks’ redundancy pay under the National Employment Standards (NES) within the Act.

[3] The Applicant seeks that Ms Hawkins’ redundancy pay be varied to two weeks for the reason that it obtained other acceptable employment for her.

Legislation

[4] 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

[5] On 14 May 2021, I convened a telephone conference between the parties.

[6] A telephone hearing was held on 9 June 2021. Ms Angeline Lee, Workplace Relations Lawyer for Master Grocers Association Limited appeared for the Applicant. Ms Niamh O’Dowd, Director of the Applicant gave evidence and was cross-examined.

[7] Mr Stephen Pearson, Partner, Pearson and Associates was granted leave pursuant to s.596 of the Act to represent Ms Hawkins. Ms Hawkins gave evidence and was cross-examined.

[8] The following additional witnesses gave evidence and were cross-examined:

•  Mrs Jennifer O’Dowd, shareholder and mother of Ms Niamh O’Dowd;

•  Dr Timothy O’Dowd, shareholder and father of Ms Niamh O’Dowd;

•  Mr Joshua Gliddeon, former Retail Assistant of the Applicant;

•  Ms Kylie Pettit, former Retail Assistant of the Applicant;

•  Mr Raymond Pettit, shareholder and former Retail Manager of the Applicant;

•  Mr Wayne Pettit, former Retail Assistant of the Applicant; and

•  Ms Theresa Feehly-Summers, former Retail Assistant/Deli Manager of the Applicant.

[9] An order was issued requiring the attendance of Ms Joanne Sandford, HR Manager, Harris Farm Markets Pty Ltd to attend and give evidence.

Evidence of the Applicant

Evidence of Ms Niamh O’Dowd

[10] Ms O’Dowd is the Director of the Applicant. The Applicant is a former fruit, vegetable and grocery store located at the Isle of Capri on the Gold Coast. In mid-March 2021, the Applicant had a tenancy in place, but discovered that Harris Farm Markets (HFM) was likely going to be replacing the Applicant in the tenancy. Ms O’Dowd observed relevant comments on social media and also online job advertisements placed by HFM.

[11] On 15 March 2021, Ms O’Dowd sent an email to Mr Luke Harris of HFM, informing him that individuals had been in her shop, measuring it up, and while ever the Applicant was the tenant in the premise, HFM should respect that. She wrote the following relevant to her employees:

“….I kindly request that you exercise and show some sensitivity to the individuals who are currently employed in my store and withhold advertising for jobs at Isle of Capri for the time being. A number of job ads have appeared online and are being widely discussed in the local community and community Facebook pages as well as your own pages. My staff are reading them. I cannot being to describe to you the turmoil, upset, distress etc that your job ads have placed upon the incredible people in my employ, their families, their friends and to the community at large. I have an absolutely wonderful team of staff and when you are ready to hire staff, I would highly recommend a number of them and many of them are held in very high regard in the area…..”

[12] Ms O’Dowd and Mr Harris met on 20 March 2021 to discuss future employment by HFM of the Applicant’s employees. Ms O’Dowd expressed to Mr Harris that if employees did move across to HFM, she’d like to see them have as small a gap as possible in between finishing up with the Applicant and commencing with HFM.

[13] On 22 March 2021, Ms O’Dowd sent the following text message to Mr Harris:

“Good morning Luke.

Thank you for taking the time to meet with me on Saturday. I appreciate your offer to have your HR head to liaise with me and look forward to hearing from them…”

[14] Mr Harris replied:

“Sorry Niamh will send that straight away.”

[15] On 22 March 2021, Ms Sandford sent the following email to Ms O’Dowd:

“Good morning Niamh

I am Jo and the newest member of the Harris Farm Market HR Team in QLD.

Luke Harris very kindly passed on your details to me following your meeting with him over the weekend.

If you do have some spare time in your busy calendar, I would very much like the opportunity to meet with you and talk about future opportunities for your team.

I look forward to hearing from you..”

[16] On 26 March 2021, Ms O’Dowd met with Ms Sandford and explained that if the Applicant’s employees did become employed by HFM, she’d like to see there be as small a gap as possible. It is her evidence that Ms Sandford said HFM would be likely to employ Ms Hawkins.

[17] On 26 March 2021, the Applicant received four weeks’ notice from the Applicant’s landlord to vacate the premises where the business was conducted. While regrettable for the Applicant, it was not a great surprise to the Applicant that the landlord had decided to have HFM take over the lease of the premises.

[18] On 27 March 201, Ms O’Dowd sent the following message to all employees, including Ms Hawkins:

“Dear Team. I am holding a staff meeting in-store on Monday at 1.30pm to update you all and address all of the rumours flying around the place. If you are unable to attend, please notify me directly via comments below as soon as is possible. Thank you, Niamh.”

[19] On 29 March 2021, Ms O’Dowd consulted employees about the likelihood of their position becoming redundant. She informed the employees of the following:

(a) The store would cease trading as of 16 April 2021;

(b) The store would be closed as of 23 April 2021;

(c) The Applicant is considering making all employees redundant on 26 April 2021;

(d) Ms O’Dowd had already approached the following companies in respect of potential job opportunities for employees:

(i) The Standard Market Company;

(ii) A board member of IGA, whose family also own at least four stores on the Gold Coast and two regional stores;

(iii) The State Operations Manager of FoodWorks, the Chief Operational Officer of Foodworks and regional area managers of Foodworks;

(iv) Fruitlink; and

(v) Harris Farm Markets.

[20] On 29 March 2021, Ms Sandford asked Ms O’Dowd over the telephone to compile a list of staff whom Ms O’Dowd thought would be interested in working for HFM. Ms Sandford sought Ms O’Dowd’s thoughts as to which of her employees she thought might shine in the store and where they would be best suited.

[21] Ms Sandford requested Ms O’Dowd collect the CVs of any employees who would be interested in employment with HFM. Ms O’Dowd then relayed this message to all employees and invited all employees, including Ms Hawkins to send their CVs to her.

[22] Ms Hawkins sent her CV to Ms O’Dowd on 31 March 2021. Ms O’Dowd sent written confirmation on the same day to all employees who attended the staff meeting on 29 March 2021, including Ms Hawkins, reiterating the matters noted in [19] and inviting all employees to share any responses to these matters.

[23] On 1 April 2021, each employee was sent an individualised letter by Ms O’Dowd, which was mistakenly dated 30 March 2021, setting out the following:

(a) Confirmation of matters discussed at the consultation meeting of 29 March 2021 and confirmation of the outcome of the consultations with employees, being that the store was closing, and employees were to be terminated on the grounds of redundancy;

(b) Ms O’Dowd had been taking steps to secure all employees with job opportunities with HFM as well as other prospective employers;

(c) Employees could seek further information about minimum terms and conditions of employment from the Fair Work Ombudsman, and that if staff wished to contact them, they could call 13 13 94 or visit the website www.fairwork.gov.au; and

(d) To each letter, Ms O’Dowd attached the Redundancy Information Sheet issued by the Department of Education, Skills and Employment of the Australian Government.

[24] In the individualised letter sent to Ms Hawkins, Ms O’Dowd informed her that she was entitled to five weeks’ notice but would only be required to work four weeks of the notice period. She was informed the employment would end on 26 April 2021 and all relevant payments would be made to her including 11 weeks’ severance pay. Ms O’Dowd noted that the final termination payment would be subject to relevant taxed and other considerations under legislation.

[25] On 1 April 2021, Ms O’Dowd sent the following message to all employees, however it is noted Ms Hawkins had already provided her CV to her:

“RESUMES / CVs I need your CVs sent to me by tomorrow (Friday) morning if you want me to put you forward for a job with Harris Farm Markets. If you need a hand, please let me know.”

[26] On 1 April 2021, after a telephone conversation with Ms Stanford, Ms O’Dowd confirmed via email that she was assisting by compiling a list of the Applicant’s staff and some basic information on each individual. Ms O’Dowd confirmed that she was waiting on more CVs to come through. The full list of the Applicant’s employees and a folder with accompanying CVs was sent via email to Ms Stanford on 5 April 2021.

[27] On 6 April 2021, Ms O’Dowd sent out the following message to employees:

“G’day team, Jo, Harris Farm's HR person, will be here tomorrow. She & I will have a meeting and then she will be available to meet with you and answer questions you may have. She will be here from 1pm for a couple of hours. I strongly urge those of you who would like jobs with HFM to be here to meet with her so that she can put faces to names & resumes. This is not an interview process, more a meet and greet and a chance for you to have any questions answered. Thanks guys.”

[28] On 7 April 2021, Ms O’Dowd met with Ms Stanford and went through the list of staff individually. Ms O’Dowd offered to amend the list of staff to include their telephone and email contact details as well as their dates of birth. This was sent through to Ms Stanford that afternoon.

[29] On that same day, Ms O’Dowd facilitated Ms Stanford meeting with each staff member in groups of two or three. This was conducted while each staff member was on shift and being paid by the Applicant.

[30] On 10 April 2021, Ms O’Dowd sent the following message to employees:

“Hi guys. Luke Harris of Harris Farm is flying up on Monday to meet with some of our core team. He’s hoping to be at the store by about 10. As far as I am aware, it’s all informal but popping in and looking sharp would be a good idea [ ;) ] 1 Niamh”

[31] Ms Hawkins responded to the message with thanks.

[32] On 12 April 2021, Ms O’Dowd facilitated an opportunity for employees, including Ms Hawkins to meet with Mr Harris and other representatives of HFM to ask questions they may have about potentially working within HFM.

[33] On 21 April 2021, Ms O’Dowd facilitated a further opportunity for employees, including Ms Hawkins to meet with Mr Harris again and other representatives of HFMs as Mr Harris was having public relations photos taken with the employees that had accepted jobs with HFM.

[34] It is Ms O’Dowd’s evidence that while she was securing work for her employees with HFM, she was also winding up a medium size business and vacating stock and equipment from the premises. She considers that she put in considerable time and effort to create a relationship with HFM in order to obtain opportunities for all of the Applicant’s employees for ongoing employment after termination. She hoped there would be as small a gap as possible before finishing up with the Applicant and commencing work with HFM.

[35] Ms O’Dowd concludes that the Applicant facilitated meetings on 7, 12 and 21 April 2021 between HFM and Ms Hawkins, in order to dispense with a formal interview process. All of the meetings were conducted during Ms Hawkins’ rostered shifts, and Ms Hawkins did not suffer any reduction in pay. Ms Hawkins was not instructed to nor required to “log out” or “clock off” during the meetings with HFM to discuss employment opportunities.

[36] Ms O’Dowd noted that the same treatment was afforded to the other employees for whom employment with HFM was sought by Ms O’Dowd.

[37] Ms O’Dowd stated that on multiple occasions she sought out Ms Hawkins to enquire after her views on the prospective job opportunities and her interest in employment with HFM, and to offer further assistance in securing employment after termination. At all times Ms Hawkins indicated to Ms O’Dowd that she was very interested in working for HFM.

[38] Ms O’Dowd stated that the Applicant also provided for an “exclusive pitch” if Ms Hawkins was interested in being employed as a retailer/cook in a retailer within the same shopping centre as the Applicant. Ms Hawkins declined the opportunity, noting that she was focussed on opportunities with HFM.

[39] Ms O’Dowd did not become aware until she was in receipt of Ms Hawkins’ application in these proceedings that Ms Hawkins directly applied to HFM on 15 March 2021 as a result of the online advertisement.

[40] Ms O’Dowd’s evidence is that HFM offered immediate employment to Ms Hawkins after she had finished working for the Applicant. Ms Hawkins chose to commence work with HFM two weeks later. On that basis, the Applicant has offered to Ms Hawkins severance pay for the two-week gap.

[41] In oral evidence given during the hearing, Ms O’Dowd said that she sang her staff’s praises to Mr Harris. She said that despite knowing the opening of the Isle of Capri store might be months away, she requested her employees be offered work with HFM as close as possible to the Applicant making them redundant.

[42] She stated that when Ms Hawkins met with Ms Sandford on 7 April 2021, another employee was present. This is denied by Ms Hawkins.

Evidence of Mr Raymond Pettit

[43] Mr R. Pettit stated that he is a former employee of the Applicant as well as a shareholder of the Applicant. On 10 May 2021, he commenced employment with HFM.

[44] Mr R. Pettit considers that Ms O’Dowd expended considerable effort and time to obtain an offer of employment for Ms Hawkins with HFM. From his observations, he understood that between 29 March 2021 and 26 April 2021, Ms O’Dowd undertook an immense and demanding task of winding up the business of the Applicant, including moving stock and equipment from the business premises.

[45] On 7, 12 and 21 April 2021, at Ms O’Dowd’s request, Mr R. Pettit attended meetings with Mr Harris and Ms Stanford of HFM to discuss employment opportunities following his end of employment with the Applicant. It is his evidence that Ms O’Dowd arranged and convened these meetings, and he attended the meetings in his rostered hours without loss of pay. He considers that Ms O’Dowd obtained his offer of employment with HFM as a result of her efforts in liaising with Mr Harris and Ms Stanford, and as a result of his attendance at meetings with Mr Harris and Ms Stanford that Ms O’Dowd arranged.

[46] In oral evidence given during the hearing, Mr R. Pettit stated that he did not apply for the job with HFM; Ms O’Dowd introduced him to HFM.

Evidence of Mr Wayne Pettit

[47] Mr W. Pettit stated that he is a former employee of the Applicant. On 10 May 2021, he commenced employment with HFM. His evidence is largely identical to that of Mr R. Pettit.

[48] In evidence given during the hearing Mr W. Pettit stated that the meeting with Ms Sandford on 7 April 2021 was a meet-and-greet. He felt confident after the meeting as Ms Sandford was asking him in which departments he’d like to work.

[49] He later met with Mr Harris, which he did not think he would have the opportunity to do, but for Ms O’Dowd’s efforts to introduce them. On 20 April 2021 he was offered employment with HFM.

Evidence of Ms Kylie Pettit

[50] Ms Pettit stated that she is a former employee of the Applicant. On 10 May 2021, she commenced employment with HFM. Her evidence is largely identical to that of Mr R. Pettit.

[51] In oral evidence given during the hearing, Ms Pettit stated that she negotiated her training with HFM. When she met with Ms Sandford on 7 April 2021, Ms Sandford told her that she had the job, but they just needed to work out dates. She was then formally offered the job on 16 April 2021.

[52] She stated that it was her presence and her CV which secured her the role.

Evidence of Mr Joshua Gliddeon

[53] Mr Gliddeon stated that he is a former employee of the Applicant. On 10 May 2021, he commenced employment with HFM. His evidence is largely identical to that of Mr R. Pettit.

[54] In oral evidence given during the hearing, Mr Gliddeon stated that he met with Ms Sandford on 7 April 2021. On 12 April 2021 he met with Ms Sandford and Mr Harris. The meeting lasted for around 30-35 minutes. He was away for the facilitated 21 April 2021 meeting. He stated that Ms O’Dowd facilitated all the meetings.

Evidence of Ms Theresa Feehly-Summers

[55] Ms Feehly-Summers stated that she is a former employee of the Applicant finishing on 26 April 2021. On 31 May 2021, she commenced employment with HFM. The date is mutually convenient to her and HFM. Ms Feehly-Summers’ evidence is largely identical to that of Mr R. Pettit.

[56] In oral evidence given during the hearing, Ms Feehly-Summers stated that she applied through ‘Seek’ on 12 March 2021. She was not contacted by HFM. On 31 March 2021, Ms O’Dowd asked her for her CV.

[57] On 7 April 2021 Ms Feehly-Summers met with Ms Sandford as a meet-and-greet. No offer of employment was made to her on 7 or 12 April 2021. She had not made up her mind if she wished to work with HFM. A letter of offer was made to her on 20 April 2021.

Evidence of Mrs Jennifer O’Dowd

[58] Mrs O’Dowd is a shareholder of the Applicant. She understands that Ms O'Dowd was corresponding and liaising at length with prospective employers, including HFM regarding proposals that HFM employ the Applicant’s employees. On 23 April 2021 while she was attending the premises of the Applicant, Ms Hawkins informed her that she was looking forward to taking time off between termination by the Applicant and her subsequent employment. She noted to Mrs O’Dowd that during this time off, she wanted to go on a caravan trip with her New Age Caravan friends. She also noted that she would like to have four weeks between her termination and subsequent employment in order to attend this trip.

[59] In oral evidence given during the hearings, Mrs O’Dowd said that she considered that her daughter went above and beyond to try and find work for her employees.

Evidence of Dr Timothy O’Dowd

[60] Dr O’Dowd is a shareholder of the Applicant. His evidence is largely identical to that of Mrs O’Dowd.

[61] In oral evidence given during the hearing, Dr O’Dowd stated that his daughter had a major role in securing Ms Hawkins’ employment with HFM. He confirmed that he was not present at the meetings between HFM and the Applicant’s employees.

Evidence of Ms Hawkins

[62] Ms Hawkins stated that she received a call and a text message from a work colleague on 15 March 2021, advising that all of their positions were being advertised on ‘Seek’ to work for HFM. Ms Hawkins promptly applied to the advertisement on either 15 or 16 March 2021.

[63] Ms Hawkins confirms she was informed in late March 2021 she would be made redundant and be entitled to 11 weeks’ severance pay.

[64] Ms Hawkins is aware that Ms O’Dowd requested HFM take down the online advertisements.

[65] Ms Hawkins commenced employment with HFM on 10 May 2021. She was being paid $27.32 per hour with the Applicant. At HFM she earns $21.76 per hour. She is aggrieved the Applicant only wants to pay to her two weeks’ severance pay instead of 11 weeks. She considers that she secured the role with HFM on her own merit and is supported in this view by Ms Sandford. She considers that she was short-listed and did not require a formal interview on account of the merit of her application.

[66] Ms Hawkins applied for 21 roles via ‘Seek’ between 26 February 2021 and 6 April 2021. Regarding the witness statements of Mrs O’Dowd and Dr O’Dowd, Ms Hawkins denies that she went on a four-week trip; she says it was for five days.

[67] Ms Hawkins attached a letter dated 24 May 2021 from Ms Alexis Caldwell, HR Business Partner HFM in support of her submission that she secured the role with HFM on her own merit:

“To whom it may concern

Confirmation of Employment

Harris Farm Markets has secured the lease of a commercial space located at 15-21 Capri on Via Roma Isle of Capri, QLD 4217, formally occupied by The Greener Grocer. Harris Farm Markets, Isle of Capri store. The store is confirmed to open in the later part of 2021. There is no affiliation or partnership between Harris Farm Markets and the previous owner or operator of The Greener Grocer.

This letter is to confirm the employment of Nicola Hawkns [sic] (Employee ID: 18134) with Harris Farm Markets. Ms Hawkins applied for a Shop Assistant role via the online HFM recruitment platform LiveHire. Ms Hawkins was short listed and was invited to meet with Joanne Sandford (HR Advisor) and Luke Harris (Co-CEO) on the 7^th April 2021. Ms Hawkins was successful during the interview process and was subsequently, offered a contract of Employment as per the following details:

Role: Shop Assistant
Employment Type: Permanent Full-Time
Location: Harris Farm Markets – Isle of Capri
Store Start Date: 10 May 2021

Ms Hawkins commenced training in HFM Manly, NSW on the 17 May and will continue training in the soon to open HFM, West End, QLD store from the 7 June. Upon the opening of the HFM Isle of Capri store, Ms Hawkins will transfer to the location as Shop Assistant.

Should you have any questions, please feel free to contact me on the below details.

Yours sincerely,

Alexis Caldwell
HR Business Partner”

[68] Ms Sandford sent the following email to Ms Hawkins on 25 May 2021 explaining the above letter:

“Hi Nikki

The letter that has been sent to you is the only correspondence we can provide.

It outlines the process taken and is a true and accurate statement that you were given your position by your own personal ability demonstrated at your interview with myself. Due to pressing work commitments Luke and Lex would not be in a position to contribute further.

Kind regards
Jo”

[69] In oral evidence given during the hearing, Ms Hawkins stated that the day prior to the hearing, she was involved in an incident at work with Ms Feehly-Summers and Mr R. Pettit. She considers that she is being bullied by some of her colleagues and she has raised it with HFM. She has submitted her resignation, but it has not been accepted. She has decided that she will continue working at HFM at its West End store, and she will not move to the Isle of Capri store when it opens.

[70] Ms Hawkins said that she has not been receiving a kilometre reimbursement, and Ms Sandford’s evidence given during the hearing was the first time she learned that she would be. She does not know how much the kilometre reimbursement will be. She drives a Hyundai vehicle of four cylinders. She is paying for her own parking costs.

[71] Ms Hawkins stated that it takes her 45-50 minutes to drive to work, and approximately 50-60 minutes to return home.

[72] In cross-examination, Ms Hawkins stated that her role is to order and reduce wastage. She agreed there might be promotional opportunities.

[73] Ms Hawkins knew when she accepted the role that she would be travelling to West End in Brisbane. She said that she is quite happy to travel to West End. She will now approach Ms Sandford regarding a kilometre reimbursement. She did not, like the other employees, wish to be relocated to Brisbane while the Isle of Capri store is being fitted out. She confirmed that a 45 minute drive is comfortable for her.

[74] Regarding the 7 April 2021 meeting, Ms Hawkins stated that she met with Ms Sandford alone. She met at a café outside of work and it was during her rostered shift.

[75] At the meeting on 12 April 2021 with Ms Sandford and Mr Harris, Ms O’Dowd said for her to meet with them in a group of around six employees. She said that Mr Harris wanted to know a little of each of the group in a personal manner. There was no mention of a job at this stage.

[76] On 21 April 2021, Ms Hawkins was asked to be in a photo with Mr Harris. She accepted. Ms O’Dowd was also in the picture. She said, “We were told photos were getting done.”

[77] Ms Hawkins is of the view that Ms O’Dowd did not secure her job with HFM.

Evidence of Ms Joanne Sandford

[78] Ms Sandford was ordered to attend and give evidence.

[79] She noted that she commenced with HFM in March 2020. HFM placed an online job advertisement for the store it planned to be in, Isle of Capri. Ms Sandford noted that nobody from HFM contacted Ms Hawkins from the time she applied online until she was met at the Applicant’s premises and interviewed on 7 April 2021.

[80] On 7 April 2021, Ms Sandford met with the Applicant’s employees, including Ms Hawkins. She stated, “We had a meet and greet. I wanted to settle people and let them know there would be a position for them.” She stated that HFM took all of the employees on. Some of the Applicant’s employees took pay cuts and some travelled to Sydney to be trained.

[81] Ms Hawkins informed Ms Sandford that she had applied online in mid-March 2021. Ms Sandford stated that she spent between 10 and 15 minutes with each of the Applicant’s staff members who had expressed an interest in being employed by HFM.

[82] Ms Sanford agreed that she met for the third time with Ms O’Dowd on 21 April 2021, together with employees. She stated that she couldn’t have met with the employees without Ms O’Dowd facilitating the meetings. Mr Harris was at this meeting. She said that photos with the prospective employees were not taken until contracts were offered.

[83] Ms Sandford stated, “I agree Ms O’Dowd really cared for her employees. She collected details and I was very grateful for her help.”

[84] Ms Sandford noted that the Isle of Capri store will not be open for some months as it is being extensively fitted out. Ms Hawkins travels approximately 45 minutes each way from home to West End where she enjoys working. She is paid a per kilometre rate for her travel but is not paid for her travel time. Other employees are being accommodated in Brisbane and paid a living away from home allowance until such time as the Isle of Capri store is ready to be opened. Ms Hawkins prefers to live at home and travel to West End.

[85] Ms Sandford agreed that Ms O’Dowd was helpful getting CVs from her staff for HFM’s consideration. She agreed that it was nice to chat with Ms O’Dowd’s staff.

Authorities

[86] The Applicant requests the Commission reduce Ms Hawkins’ redundancy payment to two weeks on account of it having obtained other acceptable employment for her. Two weeks is the period of time between her employment ending with the Applicant and her new employment commencing with HFM.

Obtained

[87] The Applicant retains the onus to demonstrate they ‘obtained’ the other acceptable employment. In FBIS International Protective Services (Aust) Pty Ltd v Maritime Union of Australia 2  (FBIS) the Full Court of the Federal Court considered what is required by the term “obtains”, within the meaning of s.120(b)(i) of the Act. The Full Court held that:

“20. With respect to the Full Bench’s reliance on the Shorter Oxford, the present might be one of those rare occasions on which it is useful to refer to the corresponding full entry in the Oxford English Dictionary itself. Relevantly, that reads:

To come into the possession or enjoyment of (something) by one’s own effort, or by request; to procure or gain, as the result of purpose and effort; hence, generally, to acquire, get.

We would not regard the references to “effort”, and to “purpose and effort” in this meaning as implying the existence of some kind, much less a strong kind, of “moving force” in bringing about the new state of possession referred to. They imply, rather, that the possession must be the result of the conscious, intended, acts of the person concerned, as distinct from, for example, coming into possession of something by gift or inheritance. Moreover, we cannot perceive any reason why what is described as the “general” connotation of the word – “to acquire, get” – should not be regarded as a perfect fit for the purposes sought to be achieved by the relevant provision in the standard award clause before this provision became the subject of legislation.”  

[88] In Australian Commercial Catering Pty Ltd v Marcelia Powell and Maria Togia 3, the Full Bench of the Commission, in relying on FBIS, stated:

“[9] …[t]he employer “obtains” other acceptable employment when it acquires or gets the employment by its conscious, intended acts.”

Other acceptable employment

[89] 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.

[90] In Spotless Services Australia Limited t/as Alliance Catering 4 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.”

[91] 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 Hawkins “entitled to be paid an amount of redundancy” (s.120(1)(a))?

[92] It is common ground between the parties that Ms Hawkins’ employment with the Applicant came to an end because her position was made redundant. Consequently, I am satisfied that Ms Hawkins is entitled to be paid an amount of redundancy pay by the Applicant because of s.119 of the Act. Section 120(1)(a) of the Act has been established. The amount is 11 weeks’ pay.

Did the Applicant “obtain” other employment for Ms Hawkins (s.120(1)(b)(i))?

[93] While it is accepted that Ms Hawkins applied for the role with HFM on or around 15 March 2021 by responding to its online advertisement, the evidence is clear that HFM did not have regard to Ms Hawkins’ application prior to Ms Sandford meeting with Ms Hawkins on 7 March 2021.

[94] Ms Sandford did not know of Ms Hawkins’ online application until Ms Hawkins informed her of it when they met. Accordingly, the letter from Ms Caldwell of 24 May 2021, stating that Ms Hawkins had been short listed cannot be accepted as correct. If she was shortlisted, it was only as a result of Ms O’Dowd’s efforts in consolidating the CVs of her employees who had expressed an interest to her to be employed by HFM, and passed to HFM for its consideration.

[95] I accept that Ms O’Dowd was very keen for the Applicant’s employees to be employed by HFM. The Applicant was, it seems, given very little notice of its requirement to vacate the premises. Ms O’Dowd kindly and respectfully facilitated for HFM to meet with the Applicant’s employees during paid time.

[96] This act allowed HFM to meet with interested individuals whether they had directly applied to HFM or not. HFM was not required to co-ordinate meeting with a substantial number of individuals outside of the employees’ usual working hours and away from work. Ms O’Dowd permitted the introduction on work time and with her blessing. The coordination of this and the ease provided to HFM to meet with the individuals is of considerable value to HFM.

[97] An alternative approach could have been for Ms O’Dowd to not permit such a meeting on work time, and not give any feedback at all to HFM relevant to her employees. Instead, I accept that she commended the employees to HFM.

[98] There is no doubt that HFM was suitably satisfied with Ms Hawkins’ skills and experience for it to offer to her a role with it. It was free to make that decision. On the balance of probabilities, I am not satisfied that Ms Hawkins was offered employment simply because she applied online and then met with HFM.

[99] I am satisfied that Ms O’Dowd demonstrated conscious, intended acts of affording the Applicant’s employees every opportunity to be employed by HFM. This was done by meeting with HFM at the earliest opportunity, inviting them to her store to meet with the Applicant’s employees, encouraging the employees to be well-presented, and paying for their attendance at up to three meetings. Ms O’Dowd did not put any barrier in the way of the Applicant’s employees and HFM, and in fact, went out of her way to facilitate the meetings.

[100] When regard is had to the authorities above, I am satisfied that the Applicant obtained Ms Hawkins’ employment for her with HFM.

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

[101] Ms Hawkins stated in evidence that she is not perturbed by the daily travel she is now required to do, travelling from the Gold Coast to the HFM West End store. She will now enter into discussions with HFM regarding a kilometre allowance. She indicated that she is not paid for any associated parking costs.

[102] Ms Hawkins is not interested in working for HFM at its Isle of Capri store when it opens.

[103] Ms Hawkins has suffered a significant reduction in her hourly rate of pay. She has also lost continuity of service, such that her service with the Applicant does not carry over to her service with HFM. For the purposes of long service leave, Ms Hawkins had over six years’ service. She was not entitled to pro-rata long service leave as this applies in Queensland when an employee’s service reaches seven years. Ms Hawkins’ service with HFM starts at day one on 10 May 2021.

[104] Any accrued personal leave Ms Hawkins might have had in her employment with the Applicant is now not available to her in her employment with HFM. In the Applicant’s submissions, it stated that Ms Hawkins’ accrual of personal leave was minimal.

[105] While many of the Applicant’s other employees have happily accepted a role with HFM, this is not a relevant consideration as to whether the alternative employment at HFM is acceptable relevant to Ms Hawkins’ circumstances. As Deputy President Sams stated in Spotless, the employment cannot be regarded as acceptable merely because a number of other former employees took up employment at the new location.

[106] While Ms Hawkins has agreed to work for HFM at its West End store, having regard to the significant reduction in her hourly rate of pay, and her loss of continuity of service, this weighs heavily against a finding that the employment is acceptable.

[107] The Applicant submitted to the Commission that redundancy payments are intended to compensate Ms Hawkins for loss of non-transferable entitlements such as personal leave, and to compensate for the inconvenience and hardship to Ms Hawkins as a result of the termination. This is true, yet the Applicant has requested the Commission order that a large proportion of Ms Hawkins’ entitlement to 11 weeks’ redundancy pay not be paid to her. If there is little to no redundancy payment made to Ms Hawkins, she is not compensated.

[108] It submitted that Ms Hawkins’ future eligibility for long service leave payments will not be affected by the circumstances of her termination by the Applicant and her engagement by HFM, so long service leave is not a relevant entitlement to be compensated for by payment of redundancy pay.

[109] I respectfully disagree and consider the fact that Ms Hawkins had less than one year to serve to be entitled to pro rata long service leave with the Applicant to be a factor that does weigh heavily in the consideration as to whether the employment with HFM is acceptable where Ms Hawkins’ service is reset. I confirm that this factor would not weigh so heavily on any decision as to whether the employment is acceptable if the service was only of a few years’ duration. I am of the view that the period of six years is a considerable period of time which carries relevant weight in the consideration of this matter.

[110] While Ms Hawkins has accepted work with HFM at its West End store, having regard to the significant reduction in her hourly rate of pay, and her loss of continuity of service, I am not satisfied that the employment is acceptable. In coming to this conclusion, I have had regard to the fact that the work is of a like nature and Ms Hawkins does not object to the additional travel.

Late Correspondence

[111] On 15 July 2021, this decision was substantially drafted. At 12:16pm, correspondence was sent by Ms Hawkins’ representative, dated 14 July 2021, informing the Commission that she had resigned her position with HFM on 12 July 2021, and her last date of work will be 25 July 2021. The reasons given for her resignation include travel of two hours per day, the cost of parking and the intimidating working environment caused by working with her colleagues, formerly employed by the Applicant and now employed by HFM.

[112] The following correspondence was sent to the parties from my chambers:

“Dear Parties

Reference is made to the above matter and the below correspondence received earlier.

The Commissioner advises that the decision in this application is substantially written and it was anticipated it would be released either today or tomorrow.

Having reviewed the correspondence from the Respondent, the Commissioner is of the view that it does not impact on the Commissioner’s draft decision.  However, the Commissioner wishes to provide the Applicant with an opportunity to make any submissions it may wish relevant to the Respondent’s email of today’s date.

If the Applicant does wish to make any submission it should do so by 12:00pm (AEST) Friday, 16 July 2021, copying in the Respondent.”

[113] At 10:17am on 16 July 2021, the Applicant’s representative sent the following correspondence:

“We refer to the above matter and the Respondent’s correspondence dated 14 July 2021.

In reply to the Respondent’s correspondence, our Member notes that the Respondent’s subsequent resignation from Harris Farms Markets is not material to the issues in dispute, which is that the Applicant obtained acceptable employment with Harris Farms Markets for the Respondent.

Our Member also submits that the approximate two hour daily travel time and parking costs are not material to the issues in dispute as the Respondent receives a travel allowance and compensation for parking costs. Further, the Respondent noted in evidence that she is agreeable to undertake the commute.

Our Member disputes that the Respondent’s former colleagues ‘caused’ a ‘intimidating working environment’.”

[114] I have considered the late correspondence from the parties and do not consider that it affects the decision I had earlier drafted. I agree with the Applicant’s contentions that events that have now occurred in July 2021 do not have a material impact as to whether the employment was acceptable in April 2021. For the sake of clarity, where I have found at [110] that Ms Hawkins gave evidence to the Commission that she did not object to the additional travel, I have not had regard to the fact that one of the reasons for Ms Hawkins’ resignation with HFM is the travel which she is now unhappy with.

Conclusion

[115] On the evidence before the Commission, I am satisfied that the Applicant obtained the HFM employment for Ms Hawkins. I am not satisfied that the employment is acceptable.

[116] Accordingly, the redundancy payment is not reduced or varied and 11 weeks’ redundancy payment pursuant to s.120(2) of the Act is payable to Ms Hawkins. It is Ordered that the Applicant is to pay to Ms Hawkins the full amount, as set out above, of redundancy pay that Ms Hawkins is entitled to within 14 days of this decision.

[117] An Order (PR731785) consistent with the foregoing will be issued at the same time as this Decision.

COMMISSIONER

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 1   This appeared as a winking-face “emoji” in the original message.

 2   [2015] FCAFC 90.

 3   [2016] FWCFB 5467.

 4   [2016] FWC 4505.