By

Mike Toten

Mike Toten is a freelance writer, editor and media commentator.

The employee instead found another job mainly at her own initiative, although her supervisor arranged an introduction for her at her request.

The case provides some insight into what the FWC takes into account to determine whether an employer did obtain alternative employment, and whether it was suitable or not.

Facts of case

The employee was a payroll officer and claimed she was entitled to 10 weeks of redundancy pay.

She was offered an alternative position as an accounts administrator with a different employer, with a transfer of her service and entitlements. The employer also claimed the worker's supervisor contacted another employer with a vacant position as a bookkeeper, and the employee accepted that job.

The employer claimed that it arranged both jobs for her as comparable alternative jobs, and she refused to accept the first one, therefore she had no entitlement to redundancy pay.

The employee claimed she asked her supervisor to contact the first employer about possible vacancies, then asked the supervisor to arrange an introduction to the second employer as a personal favour.

She argued that the two jobs were not comparable. The accounts position required working five days a week instead of four, and the bookkeeper position had longer work hours.

Previous cases had ruled that an employer 'obtained alternative employment' for a retrenched employee when it obtained employment via 'conscious and intended acts'. The relevant section of the Fair Work Act 2009 is sec 120(1)(b)(i).

The FWC ruled in this case that both parties acted to contact the first employer, but only the employee had sought the second contact (whose vacancy she accepted).

Therefore, the employer did not obtain either job for the employer as required by sec 120(1)(b)(i). Nor did it prove that the accounts administrator position was similar or comparable to her former payroll officer job.

Decision

The FWC rejected the employer’s application to avoid paying redundancy pay.

What this means for employers

To use the defence of having obtained 'other acceptable employment' to avoid paying redundancy pay, an employer must prove it took conscious and intended steps to obtain the other job. This is different from merely facilitating the procurement of another job, as happened in this case. If an alternative job was secured mainly at the employee’s initiative, the employer will remain liable for redundancy pay.

Clause 28 of the judgment sets out the factors the FWC will consider to determine whether an alternative job is 'another acceptable' one.

Read the judgment

Kelly Group (Administration) Pty Ltd [2023] FWC 2212 (4 September 2023)