Redeployed employees not redundant

Cases

Redeployed employees not redundant

The AIRC found that the offer of alternative positions at a differently-located workplace constituted ‘suitable alternative employment’ so the employees in question who refused the offer were not entitled to redundancy payments.

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10/08
 
The AIRC found that the offer of alternative positions at a differently-located workplace constituted ‘suitable alternative employment’ so the employees in question who refused the offer were not entitled to redundancy payments.

Vice-President Watson considered the closure of operation at one site that resulted in a proposed redeployment causing significant additional travel time and toll expenses. The employer did offer monetary compensation to cover the additional travel, etc.

Background

The employer, Linfox, provided warehousing and logistic services to Gillette at a distribution centre in Scoresby (Vic). A pack facility at the same site was also operated by Linfox until it was closed on 30 June 2008. All employees engaged in that part of the operation were redeployed to other Linfox sites.

Gillette determined to close the Scoresby Distribution Centre on 29 August 2008. At the time, Linfox employed 31 employees in this facility.

Linfox adopted and applied a policy to redeploy employees to other Linfox sites in the event of site closures. It implemented retrenchments as a last resort.

Evidence

As an initial point it was noted that standard letters of employment for weekly employees contained the following paragraph:

‘Linfox may at its discretion and with one week’s notice change your workplace, duties, classification, grade, rates of pay, hours of work, or reporting relationship at any time in order to meet its business needs. You agree that you will not claim or receive compensation for such changes.’

Linfox led evidence about the residential and work locations of several management employees and the residential locations of its employees at the Coles Altona RDC. This evidence showed an incidence of travel of a similar extent to that required for the three employees. It led evidence about similar redeployments including those arising from the relocation of the Coles operation from Hampton Park to Altona in 2006, a distance of some 55.9 kilometres.

Each of the employees gave evidence about the change in travel time and expenses incurred in travelling on the quickest, most efficient route from their home to the Coles Altona RDC.

The additional travel distance each way ranged from 14 to 40 kilometres, the total distances travelled ranged from 31 to 77 kilometres, the additional travel time each way ranged from seven minutes to 30 minutes and the anticipated additional costs ranged from $75.25 per week to $148.40 per week.

It was not the case, however, that the highest dimension applies to the same employee. For example, one employee, who lived only four kilometres from the Scoresby site, would be required to travel an additional 40 kilometres each way to the Altona site but would be able to make the trip in an anticipated 37 minutes.

The shift commencement and finishing times of 6 am to 2.30 pm, at the Coles Altona RDC, the same as at the Scoresby Distribution Centre, was said to give rise to a level of reliability in the anticipated travel times because traffic at those times is relatively light.

Linfox submitted that it was under a duty to avoid retrenchments, it did so only as a last resort, it exercised a right to redeploy the employees under contracts of employment and the certified agreement; and, in any event, the redeployment was suitable alternative employment and/or acceptable alternative employment within the terms of the certified agreement.

The NUW submitted that as the jobs at Scoresby are no longer required to be done by anyone, the employees are redundant within the terms of the Certified Agreement.

Whether or not continuity of employment was provided to the employee: continuity of employment is afforded to employees in all respects.

Not unfairly onerous

The commission found in favour of the employer ruling that the change of location did not give rise to a redundancy situation:

‘In my view the additional travel time is not insignificant, but nor is it of a level which makes travel unfairly onerous. Additional costs associated with travel are of a significant level because travel on the quickest routes will incur toll charges  …

[Re] the level of any compensation available in mitigation of disturbance factors and disadvantages involved:

The payment of $5,000, higher base rates of pay in most circumstances and the priority for eastern suburbs vacancies in the next 12 months are significant mitigating factors in the employees’ favour …

Having regard to all of the relevant circumstances I am of the view that the Coles Altona RDC positions are objectively fair suitable alternative employment opportunities.

I therefore do not consider that the employees are redundant under the terms of the Certified Agreement.’

National Union of Workers v Linfox Australia Pty Ltd (C2008/2642) - AIRC - Watson VP - 02/09/08


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