Was suitable alternative employment found?

Cases

Was suitable alternative employment found?

Determining what is suitable alternative employment for redundant employees can be a complex issue. These three cases demonstrate the difficulties employers face regarding this matter.

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Determining what is suitable alternative employment for redundant employees can be a complex issue. These three cases demonstrate the difficulties employers face regarding this matter.

Location change meant alternative offer not suitable


The employer closed the branch where the employee worked and then applied to vary redundancy pay on the basis the employee declined ‘other acceptable employment’ offered at same rate of pay.

The employee argued the new position was not acceptable as he would have to move between stores and it would not involve the same level of seniority or responsibility as his former role. It was further contended that moving between stores would be difficult due to the man's physical limitations stemming from injury.

The Fair Work Commission found working permanently at one location for a number of years was an inherent part of the employee’s former role. Other significant negative factors in the new employment resulted in no offsetting advantages for the employee.

The new position was not acceptable employment and the employee was entitled to the full benefits of redundancy pay.

Lightning International P/L v S [2014] FWC 7653 - Williams C - 31 October 2014

Employer did not secure alternative employment


This was another application to vary redundancy pay because the employees had obtained other acceptable alternative employment with the old employer's assistance.However, the FWC found the old employer was not materially responsible for finding suitable new work for the redundant employees.

Re Serco Sodexo Defence Services P/L (SSDS) [2014] FWC 7678 - Roe C - 31 October 2014

Redeployment was employer’s call


The employee submitted the dismissal was unfair as it was made without warning during maternity leave, made without consultation, and the employee was not included in formal communications to other employees.

The employer submitted it was a genuine redundancy because it no longer required the job to be performed due to changes in operational requirements. This was not in dispute between parties.

The FWC referred to the Explanatory Memorandum for guidance on examples of operational changes which  lead to genuine redundancy. It determined that consultation did occur even if it was less than perfect. The commission noted that any prospect of redeployment was a matter considered by the employer. It found the applicant’s dismissal was a genuine redundancy.

P v Alliance Contracting P/L [2014] FWC 6890 - Cloghan C - 6 October 2014

The bottom line: The determination of whether or not alternative employment is acceptable must be determined objectively and not from the perspective of the employer or employees. The reasons for the acceptance of alternative employment are many and varied and general conclusions should not be drawn from a particular circumstance.

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