Fair Work Act 2009
s.120—Redundancy pay

Cleandomain Pty Ltd
v
Christine Flavell
(C2014/256)

Variation of redundancy pay.

[1] Ms Christine Flavell has worked with Cleandomain Pty Ltd (“Cleandomain”) since November 2006. She worked most recently as a permanent part-time cleaner at the Fountain Gate shopping centre. However, in June 2013 she was dismissed after Cleandomain lost the cleaning contract at the shopping centre. She was subsequently notified in writing that she was not entitled to redundancy pay because she had “refused to cooperate in any part of the selection process with the incoming contractor” and Cleandomain was unable to find a “suitable alternative position” for her.

[2] At the time of her dismissal Ms Flavell had only just returned to work after being off work for approximately 3 months because of an injury she sustained earlier this year.

[3] Ms Flavell’s length of service with Cleandomain would entitle her to an amount of redundancy pay equivalent to 11 weeks pay. However, Cleandomain has now made application claiming it obtained “other acceptable employment” for Ms Flavell and the Commission should accordingly determine any redundancy entitlement be reduced to nil.

[4] United Voice appeared on behalf of Ms Flavell. It rejects the submission that Cleandomain obtained other acceptable employment for her and submits she is entitled to a redundancy payment equivalent to 11 weeks pay.

[5] Section 120 of the Fair Work Act 2009 (Cth) (“the Act”) enables an application to be made to the Commission to have that redundancy obligation varied. It states:

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

(1) This section applies if:

(a) an employee is entitled to 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.” 1

[6] There is no real issue between the parties about whether the work with the incoming contractor was “other acceptable employment.” The issue instead concerns whether Cleandomain obtained that other employment for Ms. Flavell and whether she has been deliberately uncooperative in not taking up that opportunity.

The Issue to be Determined

[7] The following issues are required to be determined in this matter.

1. Has Cleandomain obtained “other acceptable employment” for Ms Flavell as defined in s.120 of the Act?

2. If so, is it appropriate for the Commission to exercise its discretion to reduce the amount of the redundancy pay entitlement otherwise due to Ms Flavell?

The evidence and submissions

[8] Cleandomain submits Ms Flavell was employed under the Cleaning Services Award 2010 (“the Award”). 2 It referred at the outset to clause 14.5 of the Award which deals with “Change of contract” and applies when a cleaning contract changes from one contractor to another.3 The sub clause provides, in part, that the redundancy entitlements contained as part of the National Employment Standards in s.119 of the Act do not apply to an employee of outgoing contractor where:

“(i) the employee of the outgoing contractor agrees to other acceptable employment with the incoming contractor, and

(ii) the outgoing contractor has paid to the employee all of the employees accrued statutory and award entitlements on termination of the employee’s employment.” 4

[9] It continues to indicate:

“(c) To avoid doubt, section 119 of the Act does apply to an employee of an outgoing contractor where the employee is not offered acceptable employment with either the outgoing contractor or the incoming contractor.” 5

[10] Cleandomain submits that previous decisions of the Commission have determined that in circumstances where clause 14.5(b)(i) and (ii) of the Award applies, the employee has no entitlement to redundancy payments under s.119, and an application under s.120 is therefore unnecessary. 6 However, those circumstances do not exist in the present matter because Ms Flavell has not agreed to take on employment with the incoming contractor.7

[11] Cleandomain’s submissions referred at the outset to various decisions of the Commission dealing with similar applications. 8 It submits they have established that the test to be applied in determining whether “other acceptable employment” has been obtained is an objective one, having regard to the circumstances of the case, including the impact on the particular employee.9 It referred, in particular, to the decision in Derole Nominees Pty Ltd v the Australian Chamber of Manufactures10 (“Derole Nominees”) in support of this submission.

[12] It also submits the requirement to “obtain other acceptable employment for the employee” in an application under s.120 does not actually require a contract of employment to be concluded between the employee and the incoming contractor. This outcome is ultimately beyond its control but, as the decision in Derole Nominees indicates, “the employer must be a strong, moving force towards the creation of the available opportunity.” 11

[13] Cleandomain submits, in all circumstances, it did what was required to satisfy the test of obtaining “other acceptable employment,” including arranging for Ms Flavell to be offered employment by the incoming contractor. This required her to participate in the process in the same way as other employees. However, it submits that despite being informed on more than one occasion about the process, and what was required, Ms Flavell refused to participate. 12 It also submits its application is supported by the fact all employees who did participate were successful in obtaining employment with the incoming contractor.13

[14] It also submits Ms Flavell could have continued in employment with Cleandomain at other locations but declined those roles because of the travel involved. 14 Cleandomain also submits those positions met the tests established about “acceptability” in that the work offered bears the sufficient comparability to the original work.15

[15] Cleandomain concluded its submissions by indicating:

“The position that would have been offered to the respondent by the incoming contractor, Millennium, did constitute acceptable alternative employment as it was the same employment as the respondent previously had with the applicant. All of the employees of the applicant who transferred to Millennium were paid out all of their accrued annual leave. They were not paid out their accrued LSL as it had not vested. As the employees had not accrued long service leave the date of termination, the transmission of business provisions contained in the Long Service Leave Act 1992 (Vic) applied. Furthermore the respondent was offered employment of an objectively similar nature at the Alfred Hospital and RMIT. She rejected these offers because she sought to be paid severance pay rather than be redeployed. This subjective reason for not accepting the employment is not relevant nor was her refusal to travel an additional thirty minute.” 16

[16] Mr Carl Clotworthy is employed as the Operations Manager at Cleandomain. 17 He said he was informed at the end of May that Cleandomain had been unsuccessful in its tender to continue to provide cleaning services at the Fountain Gate site.18 He was also aware the Site Manager was then successful in having the incoming contractor agree to interview all employees who wanted to obtain ongoing employment at the site. He said he was aware that the incoming contractor conducted interviews with Cleandomain’s employees on 7 and 8 June, and all employees who participated in that process were employed by the new contractor.19

[17] He said he was also advised by the Site Managers that Ms Flavell had “been uncooperative in participating in the redeployment process with Millennium and as a consequence she was not offered employment with them.” 20 He said he was also told she was seeking a redundancy payment.21

[18] He said he was then contacted by Ms Flavell on 14 June 2013. 22 She indicated she was now interested in a role with the incoming contractor, or an ongoing position with Cleandomain. He told her the roles with the incoming contractor had been filled at that point, but identified various other roles Cleandomain had which could be suitable for her.23 He said Ms Flavell indicated she was seeking part-time work and was only prepared to travel certain distances. He then tried to target positions at sites within what he understood to be suitable locations. He met with her on 27 June and discussed a range of other potential vacancies, but Ms Flavell was not prepared to travel more than 30 minutes from the Fountain Gate site, and was not prepared to consider those roles.24 He also said that in that discussion he may have said she could be entitled to a redundancy payment, but ultimately that was something he would need to clarify with the Human Resources Department.25

[19] Mr Jason Cowan is an Assistant Manager with Millennium at the Fountain Gate site. 26 He said he was employed by Cleandomain at the site until 30 June 2013, with responsibility for supervising staff and organising the rosters.27 However, when Cleandomain’s contract at the site expired he commenced employment with the incoming contractor, Millennium, at the same location.

[20] He said he first became aware that Cleandomain had been unsuccessful in its tender to provide ongoing services at the site in late May, and letters were then given to all staff to advise of the loss of contract and the process to be followed in obtaining ongoing employment. 28

[21] He said Ms Flavell’s husband attended the site on 5 June to give him a medical certificate on her behalf and he gave him the letter provided to all employees, together with a list of all existing vacancies Cleandomain and its parent company currently had. 29 He said he also told Mr Flavell about the forthcoming interviews the incoming contractor would be holding with the employees to enable them to gain ongoing employment.30

[22] He said he subsequently arranged for the incoming contractor to hold interviews with existing Cleandomain employees on two separate days to ensure all employees would be able to attend. 31 However, he was aware Ms Flavell did not attend these interviews and he again made contact with her to enquire as to why she did not attend.32 He said he then had a further discussion with her and told her there was one last opportunity to meet with the incoming contractor if she wanted to continue working at the site.33 He said Ms Flavell told him she would “think about it,” but again did not take up this opportunity.34

[23] He said Ms Flavell then returned to work on 13 June and he had a further discussion with her about her intentions. 35 He said she indicated she wanted a redundancy payment and was not interested in continuing to work for Cleandomain or the incoming contractor. 36

[24] Mr Nalindra Wijetunge was the Venue Manager at Fountain Gate until Cleandomain lost the contract. 37 He was responsible for managing the contract, drawing up rosters, employing new staff and undertaking training.38 He said at the time Cleandomain lost the contract he was aware Ms Flavell had been absent from work for some time and, therefore, on 3 June he telephoned her on both her landline and mobile phone to advise about the loss of contract,39 and the process for obtaining work with the incoming contractor. He said he then telephoned Mr Flavell and left a message telling him that unless his wife was redeployed her employment would be terminated.40 He also informed him about the letter to be collected detailing the process for participating in the forthcoming interviews with the incoming contractor.41

[25] Cleandomain submits, in conclusion, that the evidence demonstrates it was a strong moving force towards the creation of ongoing work opportunities with the incoming contractor. 42 It submits Ms Flavell was contacted and told about the loss of contract.43 She was advised about the redeployment process, and about the interviews to be held on two separate days, but declined to cooperate in that process.44 It also submits the evidence indicates she was seeking a payout, rather than ongoing employment, and she should not be rewarded with an entitlement to severance pay when she made no attempt to cooperate with the redeployment processes.45 It also refutes the suggestion the reason for her failure to cooperate was her medical condition, and submits she was capable of getting involved in the processes with the incoming contractor to enable her to remain in ongoing employment.46

[26] United Voice states Ms Flavell was notified in writing in a letter dated 16 July 2013 that her employment with Cleandomain had been terminated, and she was not entitled to a redundancy payment because she had “refused to cooperate in any part of the selection process with the incoming contractor.” It also indicated Cleandomain was unable to find “a suitable alternative position” for her. 47

[27] United Voice rejects the submission by Cleandomain that it obtained “other acceptable employment” for Ms Flavell. 48 It referred to clause 14.5 of the Award and sub clause 14.5(c), in particular, which states:

“Section 119 of the Act does apply to an employee of an ongoing contractor where the employee is not offered acceptable alternative employment with either the outgoing contractor or the incoming contractor.” 49

[28] It also made reference to the extracts relied upon by Cleandomain from the decision in Derole Nominees. 50 It also referred to the decision in Allman v Teletech International Pty Ltd51 and submits it is authority for the proposition that where an employer has obtained or arranged alternative employment for an employee, any such arrangement must be communicated by the employer to the employee so “the employee would understand the employer on each occasion to be saying that it has found another job for the employee.”52

[29] In terms of whether “other acceptable employment” was obtained for Ms Flavell United Voice submits that in February 2013 she was injured and then unable to work from 15 March until 10 June 2013. 53 It also acknowledges that on or around 5 June she received the letter from Mr Clotworthy advising Cleandomain had lost the contract and would be looking to find other employment for the employees.54

[30] However, it submits she was unable to attend the interviews with the incoming contractor on 7 and 8 June because of her injury, and cannot be said to have unreasonably refused to participate in the interview process. 55 It relied on the decision in Lawrie v Coles Supermarkets Australia Pty Ltd56 in support of this submission.

[31] On 13 June 2013 Ms Flavell returned to work at the Fountain Gate site and contacted Mr Clotworthy the next day to enquire about future work opportunities with either Cleandomain or the incoming contractor. 57 United Voice submits Mr Clotworthy told Ms Flavell all vacancies with the incoming contractor had been filled, however, he would look to identify other possible vacancies within its business.58 It submits she then spoke to him again on at least two occasions in the next fortnight indicating she was prepared to work on any day and able to travel a reasonable distance to a new work location .59 It submits she met with him again on 20 June and he advised he had been unable to locate any other acceptable employment. It submits he also flagged the possibility she would be terminated as a result of redundancy.60

[32] United Voice relies on the Full Bench decision in National Union of Workers v Tontine Fibres 61 in support of its submission Cleandomain failed to obtain acceptable alternative employment for Ms Flavell. It also submits the onus is upon the Applicant to substantiate its application to vary the amount of redundancy pay otherwise due to the employee, as found in Target Australia Pty v Shop, Distributive and Allied Employees Association.62 It also submits Cleandomain has failed to provide sufficient evidence to establish it offered her “other acceptable employment,” having regard to the factors referred to in the decision in Clothing and Allied Trades Union Australia v Hot Tuna Pty Ltd.63

[33] Ms Flavell said she has worked with Cleandomain since November 2006. 64 She initially worked at the Southland site but was transferred to the Fountain Gate site in October 2012 when Cleandomain was taken over by Spotless Services.65 She then suffered broken ribs and a punctured lung in February 2013 and was off work from March until June 2013.66 She said she arranged for her husband to deliver medical certificates to Cleandomain during that time confirming she continued to be unfit for work.67

[34] She acknowledged that she received two missed calls from Mr Cowman on her mobile phone on 3 June, but did not return the calls because she was unwell. 68 She said her husband then delivered a further medical certificate to the Fountain Gate site on 5 June and, at the same time, Mr Cowman gave him the letter indicating Cleandomain had lost the contract at the site.69 She also said the Site Manager left a message on her husband’s mobile phone on 7 June stating he should come into the office “to pick up an application form to apply for a position with the new company”.70 However, she said she did not have a good relationship with Mr Wijetunge and chose not to answer or return his calls when he rang.71 She said she then sent a message to Mr Cowman on the same day asking for a form to be given to her husband when he attended with her medical certificate.72

[35] Mr Cowman then called her and said she would have to attend an interview with the incoming contractor on either 7 or 8 June. 73 However, she told him she was not feeling well and could not attend those interviews. She did, however, acknowledge in cross-examination she received the letter on 5 June and was aware interviews with the incoming contractor were to be held on 7 and 8 June.74 She also said she did not attend those interviews because she was employed by Cleandomain and wished to continue in employment with the Company .75 She again stated in cross-examination she was on sick leave at the time and couldn’t be compelled to attend an interview.76 However, she also acknowledged she returned to work on 13 June, five days after the interviews were held.77 On her return she told Cleandomain she wanted to keep working for the Company. She then confirmed she had a series of discussion with Mr Clotworthy about other possible work opportunities, and met with him again on 27 June when he indicated he would continue to look for other positions.78

[36] However, on 16 July 2013 she received the termination letter from her employer. It stated, in part:

“You refused to cooperate in any part of the selection process with the incoming contractor. If you had cooperated it is fully expected that you would have been successful in obtaining acceptable alternative employment, which was the case with all other employees who did cooperate. York lack of cooperation has the consequence that you declined offers of acceptable alternative employment with the incoming contractor Millennium Cleaning and the absence of a suitable alternative position being available at another Spotless Site, your employment with Spotless was terminated due to retrenchment. 79

[37] It continued to indicate:

“In accordance with the terms of employment agreement you will be paid for accrued and underpaid annual leave. However as you declined to offers to meet with the incoming contractor and continue your employment at Westfield Fountain Gate, you’re entitlements do not include a redundancy payment.” 80

[38] Mr Mark Flavell said he delivered a medical certificate on behalf of his wife to Mr Jason Cowman at the Fountain Gate site on 5 June and was given the letter indicating Cleandomain had lost the cleaning contract at the site. 81 He said he gave the letter to his wife and two days later received a voicemail from the Site Manager indicating the incoming contractor was on site that day and holding interviews with staff. He said he relayed the contents of that message to his wife.82

[39] United Voice submits in conclusion that Ms Flavell did ask for an application form to apply for a position with the incoming contractor, and this demonstrates her interest in obtaining alternative employment, and the fact she had taken reasonable steps to gain that employment. 83 It also submits it is clear her medical condition meant she was unable to physically attend an interview.84 It submits she should not be penalised in circumstances where she was unable to attend the interviews, and it is only Mr Cowman’s evidence that suggest she was seeking a redundancy payment, rather than ongoing employment.85 It also submits there is no evidence that Cleandomain actually offered her another position when it was clear ongoing employment with the incoming contractor was no longer an option.

Consideration

[40] The circumstances in this matter are different from most applications made under s.120 of the Act. They are typically concerned with whether “other acceptable employment” has been obtained, given the location, hours of work, terms and conditions of employment, and other relevant factors. However, in the present matter there is no issue between the parties about whether the roles offered by the incoming contractor constitute “other acceptable employment.” It is, instead, agreed they were offered on the same basis as the work being performed when the employees were employed by Cleandomain.

[41] The issue instead in this case is whether Cleandomain can be said to have “obtained” that employment for Ms Flavell. Cleandomain submits it did, but Ms Flavell then refused to cooperate in the selection process with the incoming contractor to enable that opportunity to be crystallised. Ms Flavell submits, on the other hand, that her absence from the workplace at the time because of injury meant she couldn’t participate in those processes, and it can’t be said Cleandomain had obtained “other acceptable employment” for her.

[42] However, before dealing with this issue I also note that Cleandomain made reference in its opening submissions to clause 14.5 of the Cleaning Services Award 2010, and a decision of Commissioner Spencer in ISS Facility Services Australia Ltd. 86 It submits that in circumstances where clause 14.5 of the Award applies there is no requirement for an application to be made under s.120 because the employee has no entitlement to redundancy payments in the first place.

[43] I am satisfied, in response, it is not necessary to deal with this submission in the circumstances of this matter. Clause 14.5(b) of the Award indicates, at the outset, that it applies in cases of a change of cleaning contract from one cleaning contractor to another. However, it continues to state in sub paragraph (b):

“(b) Section 119 of the Act does not apply to an employee of the outgoing contractor where:

(i) the employee of the outgoing contractor agrees to other acceptable employment with the incoming contractor, and

(ii) the outgoing contractor has paid to the employee all of the employee’s accrued statutory and award entitlements on termination of the employee’s employment.” 87

[44] In the present matter Ms Flavell has clearly not agreed to “other acceptable employment with the incoming contractor.” Therefore, I am satisfied one of the preconditions in clause 14.5(b) has not been satisfied, and therefore the sub clause has no application.

[45] The requirements associated with the provisions now contained in the s.120 of the Act have been considered in a number of previous decisions of the Tribunal. Both parties made reference to the decision of a Full Bench of the then Australian Industrial Relations Commission in the matter of Derole Nominees,  88 which considered what the meaning of “obtains” requires in the context of an outgoing contractor obtaining acceptable employment for an employee. The Full Bench held, firstly, that it cannot mean obtain “in the fullest sense possible” because one employer is incapable of affecting a contract of employment with its employees and another employer. Therefore, it must be given “some lesser meaning.” The Full Bench concluded:

“Viewed in this way it will be seen that the intention is not to impose an absolute test on the employer’s ability to “obtain” alternative employment but rather it refers to action which causes acceptable alternative employment to become available to the redundant employee. The employer must be a strong, moving force towards the creation of the available opportunity.” 89

[46] In Datacom Systems Vic Pty Ltd v Rasiq Khan; Siddharth Desai 90 (“Datacom”), Vice President Lawler also expressed the view that the word “obtains” in the context of s.120 should be given a very broad interpretation. It is also clear from the authorities that it is a test to be applied on an objective basis, and not to be applied simply on the basis of whether the employee wishes to take on the role that is being offered or not. I have had regard to these authorities in coming to a decision in this matter.

[47] Ms Flavell had been absent from the workplace because of her injuries for approximately 3 months when Cleandomain was first informed it had been unsuccessful in its tender to continue providing cleaning services at the Fountain Gate site. During that time her husband delivered medical certificates to the site on her behalf. On 3 June 2013 Cleandomain forwarded a letter to its employees at the site advising about the loss of contract and indicating it would be speaking with the new contractor about possible ongoing employment opportunities. The letter also contained a list of all current vacancies within Cleandomain’s operations, and that of its parent company. Mr Cowan, the Assistant Manager, gave a copy of the letter to Mr Flavell two days later when he visited the site with his wife’s latest medical certificate. He also said he told him about the interviews arranged with the incoming contractor. He said he had arranged for the interviews to be held on two separate days to ensure all employees would be able to attend. However, when he became aware Ms Flavell did not attend either of these interviews he contacted her again and told her there was a final opportunity to meet with the incoming contractor if she wanted to continue working at the site. Ms Flavell told him she would “think about it,” but again did not attend or make any contact with the new contractor.

[48] Mr Wijetunge was the Venue Manager for Cleandomain at Fountain Gate. He said he telephoned Ms Flavell on 3 June on both her landline and mobile phone to let her know about the loss of the contract at the site. He said he also left a message with her husband to tell him about the forthcoming interview processes with the incoming contractor.

[49] Mr Clotworthy said he was contacted by Ms Flavell on 14 June 2013 and told she was interested in a role with either the incoming contractor or an ongoing position with Cleandomain. He said he told her the jobs with the incoming contractor had been filled and sought to identify other roles within Cleandomain that might be suitable. He said she indicated she was only seeking part-time work, and was only prepared to travel a certain distance to work.

[50] Ms Flavell rejects the suggestion she refused to cooperate in the process of obtaining work with the incoming contractor. She submits she was unable to attend interviews because of her injury. She also said she did not return phone calls left with her, either because she was unwell, or because she did not have a good relationship with Mr Wijetunge, and chose not to answer or return his calls when he rang. She did, however, acknowledge in cross-examination that she received the letter dated 5 June 2013 and was aware that interviews were to be held with the incoming contractor. She also said she did not unreasonably refuse to consider other alternatives within Cleandomain by imposing unrealistic limitations on the hours she would work, or the distance she would travel.

[51] Ms Flavell also relies on the decision in Lawrie v Coles Supermarkets Pty Ltd 91 in support of the view that an employee is not being uncooperative because they are unable to apply for other employment because of their absence from work due to injury. In that matter the employer was instead found to be at fault for not fully investigating the situation.

[52] In that matter the employee’s position was made redundant and she was offered another role. However, she could not perform that role because of a pre-existing leg injury. She then went on a period of extended leave before resigning. The Industrial Magistrate subsequently found in her favour. He determined that an offer of other employment was made to the employee. However, when the employer became aware of the medical condition impacting on her ability to take on that role it made no further effort to follow up that situation. It also failed to pass on that information to the relevant HR representative, and failed to follow its own policies that were to be applied in circumstances where an employee is absent from work for more than three months. The Magistrate accordingly concluded, “I do not accept that there was no cooperation on the part of the applicant,” 92 and concluded the employer had erred “when it failed to follow through in any meaningful way to ascertain the extent of the Applicant’s problems.”93

[53] Those circumstances are different from those in the present matter. Cleandomain was not ignorant of the circumstances involving Ms Flavell and was being provided with regular medical certificates in regard to her injury. The evidence also indicates that attempts were made to contact both Ms Flavell and her husband on several occasions because she was not at work, to inform her about the loss of the contract at the site and the process of obtaining ongoing employment with the incoming contractor.

[54] Ms Flavell also relied on the decision in Allman v Teletech International Pty Ltd 94 (‘Teletech”) in support of the submission that where an employer claims to have obtained other acceptable employment that information must be communicated in a way so that the employee understands what is being conveyed. That matter concerned a provision in a former Australian Workplace Agreement (“Agreement”) which removed any entitlement to redundancy payments in circumstances where the employer “is able to arrange alternative employment with another employer that is comparable in wages, terms and conditions of current employment. “95

[55] In his decision Marshall J found that the exemption from the obligation to make redundancy payments in the Agreement did not apply because the employer was not actually able to arrange alternative employment in the sense of bringing about that employment, should the employee choose to accept it. He concluded, “the employee may not choose to take up the job, but it must be one that is there for the taking if the employee chooses to take it.” 96 He therefore found that the exemption provided for in the Agreement could not be relied upon by the employer.

[56] Again, the circumstances in that matter can be distinguished from this matter. The decision was, firstly, dealing with the particular provisions contained in the Agreement. Marshall J also found the employer was not “a strong moving force towards the creation of the available opportunity,” and the ongoing opportunities only existed because the incoming contractor had vacancies it required to fill. 97 The new employer was also not proposing to give preferential treatment to the employees of the outgoing contractor; those employees were simply able to make application for ongoing work on a shared basis with its own employees. Marshall J found this factor, in particular, meant the relevant test in the AWA had not been met and consequently the exemption in the Agreement was not available to the employer.

[57] The fact that Ms Flavell was off work at the time Cleandomain lost the contract at Fountain Gate is a significant factor that needs to be taken into account in determining this matter. Clearly, an employee who is off work due to illness or injury might be prevented, or be unable to attend interviews, or participate in the processes to do with obtaining “other acceptable employment” with an incoming contractor. The extent to which this is the case will depend in large part on the nature of the illness or injury afflicting the employee. For example, an employee might not be able to carry out their normal job functions, particularly if demanding physical work is involved, however, their illness or injury might not prevent them from attending or participating in interview processes to do with a future job opportunity,

[58] Clearly an employee who is temporarily absent from the workplace may need to be treated or dealt with differently in terms of how they are communicated with, or kept up dated about developments that might be happening in the workplace that impact on or are relevant to them. However, it does not follow that an employee in these circumstances necessarily has any greater rights or entitlements than other employees.

Conclusion

[59] The evidence in this matter indicates that two Cleandomain Managers made various attempts to contact Ms Flavell after it became known Cleandomain had lost the contract at Fountain Gate. Their intention was to inform her about that situation and to let her know what was required to obtain ongoing employment at the site with the incoming contractor. A further discussion was then had with her husband about these matters when he attended the work site two days later. He was also given a copy of the letter that had previously been provided to the other employees at the site. Ms Flavell was then contacted again by telephone to encourage her to arrange an interview or discussion with the incoming contractor. However, Ms Flavell did not make any attempt to respond to these efforts to make contact with her, nor did she make any attempt to get in contact with the new contractor.

[60] It is acknowledged that Ms Flavell had been off work for several months at this point. However, she was able to return to work with a medical clearance on 13 June, just four days after the interviews with the incoming contractor had taken place. This suggests that her recovery from her injury was almost complete at this time. In any case I am not satisfied that her absence from work provides an excuse for her complete lack of response and inaction concerning Cleandomain’s loss of the contract at the site, and the process put in place to obtain ongoing employment with the incoming contractor.

[61] On her return to work Ms Flavell then participated in further discussions about the possibility of ongoing work with Cleandomain, or its parent company, but because of the hours she wanted to work, and her travel restrictions, nothing could be found. It is acknowledged that Ms Flavell was not actually offered an ongoing position with Cleandomain, however, as indicated it also appears any possible options that might have been open to her were limited by the hours she was prepared to work, and the distance she was prepared to travel.

[62] It is accepted that Ms Flavell’s preference was to continue to work with Cleandomain at the Fountain Gate site. However, when Cleandomain lost the contract to provide services at Fountain Gate that option was no longer available, at least not with Cleandomain. However, this did not entitle her to simply do nothing, and instead rely on Cleandomain to find other employment for her, or provide her with redundancy payments, in circumstances where it had obtained “other acceptable employment” for its employees at the site.

[63] Clearly, the situation might have been different if Cleandomain had ignored Ms Flavell, or not attempted to contact her about the loss of contract at the site, and the opportunity to obtain ongoing employment with the incoming contractor. It might also have been different if she had participated in the processes with the incoming contractor, but been unsuccessful in obtaining ongoing employment because of her absence from work at the time.

[64] I am therefore satisfied that, in all the circumstances, Cleandomain can be said to have obtained “other acceptable employment” for Ms Flavell, because it was “a strong, moving force” towards the creation of ongoing work opportunities at the site. It made several attempts to contact Ms Flavell. It discussed the situation with her husband. It arranged for additional interviews with the incoming contractor to ensure all employees could attend. Its proactive role in this process can be demonstrated by the evidence which indicates all employees who wished to continue in employment at the site were able to do so with the new contractor. It was not appropriate, in this situation, for Ms Flavell to simply ignore or elect not to participate in these processes.

[65] I am accordingly satisfied Ms Flavell was provided with a reasonable opportunity to participate in the processes associated with obtaining work with the incoming contractor. I am also satisfied she was not prevented by her injury from participating in those processes and, at the very least, could have been expected to make contact with the incoming contractor by telephone to indicate her intentions. I am therefore satisfied, based on the relevant authorities, that Cleandomain did what was required to obtain “other acceptable employment” for Ms Flavell, and it is only because of her inaction in response that she is no longer in ongoing work at the site. Having come to this decision I am also satisfied that it is appropriate in the circumstances to reduce the amount of redundancy pay to which she is otherwise entitled to nil. An order to this effect will be issued in conjunction with this decision.

COMMISSIONER

Appearances:

Mr. J Douglas appeared on behalf of the Applicant

Mr A Pung of United Voice appeared on behalf of the Respondent.

Hearing details:

2014

Melbourne

30 July.

Final written submissions:

Applicant filed submissions on 14 March 2014.

Respondent filed submissions on 7 March 2014.

 1   Fair Work Act 2009 (Cth) at s.120.

 2   Outline of Submissions from Cleandomain Pty Ltd dated 14 March 2014 at para 5.

 3   Ibid at para 6.

 4   Ibid.

 5   Ibid.

 6   Ibid at para 8 to 9.

 7   Ibid at para 11.

 8   Ibid at para 8 to 16.

 9   Ibid at para 9.

 10   C037CRA Dec 1029/90 S Print J4414

 11   Outline of Submissions from Cleandomain Pty Ltd dated 14 March at para 9.

 12   Ibid at para 11.

 13   Ibid.

 14   Ibid at para 13.

 15   Ibid at para 15 to 16.

 16   Ibid at para 16.

 17   Exhibit C4, Statement by Carol Clotworthy dated Friday, 14 March 2014 at para 1.

 18   Ibid at para 4.

 19   Ibid at para 6.

 20   Ibid at para 7.

 21   Ibid.

 22   Ibid at para 8.

 23   Ibid.

 24   Ibid at para 10.

 25   Transcript at PN 92.

 26   Exhibit C3, Statement by Jason Cowan dated Friday, 14 March 2014 at para 1.

 27   Ibid at para 2.

 28   Ibid at para 4.

 29   Ibid at para 6.

 30   Ibid.

 31   Ibid at para 7.

 32   Ibid at para 8.

 33   Ibid.

 34   Ibid.

 35   Ibid at para 9.

 36   Ibid.

 37   Exhibit C1, Statement by Nalindra Wijuetunge dated Friday, 14 March 2014 at para 1.

 38   Ibid at para 3.

 39   Ibid at para 6.

 40   Ibid.

 41   Ibid.

 42   Transcript at PN370.

 43   Transcript at PN371.

 44   Ibid

 45   Ibid.

 46   Ibid.

 47   Outline of Submissions from United Voice dated Tuesday, 11 March 2014 at para 6.

 48   Ibid at para 12.

 49   Ibid at para 15.

 50   C037CRA Dec 1029/90 S Print J4414

 51   [2008] FCA 1820

 52   Outline of Submissions from United Voice dated Tuesday, 11 March 2014 at para 18.

 53   Ibid at para 19 to 20.

 54   Ibid at para 21.

 55   Ibid at para 30.

 56   [2008] SAIRC 54

 57   Outline of Submissions from United Voice dated Tuesday, 11 March 2014 at para 25.

 58   Ibid at para 27.

 59   Ibid at para 31.

 60   Ibid at para 32.

 61   [2007] AIRCFB 1016

 62   [2002] AIRC 1465

 63   [1988] 27 IR 226

 64   Exhibit UV1, Witness Statement of Christine Flavell dated 7 March 2014 at para 2.

 65   Ibid at para 3.

 66   Ibid at para 5.

 67   Ibid at para 6.

 68   Ibid at para 7.

 69   Ibid at para 9.

 70   Ibid at para 12.

 71   Transcript at PN206 to PN207.

 72   Exhibit UV1, Witness Statement of Christine Flavell dated 7 March 2014 at para 13.

 73   Ibid at para 14.

 74   Transcript at PN233 to PN234.

 75   Ibid at PN235.

 76   Ibid at PN256 to PN259.

 77   Ibid at PN314.

 78   Exhibit UV1, Witness Statement of Christine Flavell dated 7 March 2014 at para 22 to 31.

 79   Letter of Termination from Spotless to Christine Flavell dated 16 July 2013.

 80   Ibid.

 81   Exhibit UV2, Witness Statement of Mark Flavell dated on 7 March 2014 at para 5.

 82   Ibid at para 6 to7.

 83   Transcript at PN407.

 84   Ibid.

 85   Ibid at PN416.

 86   [2013] FWC 1327.

 87   Cleaning Services Award 2010 at cl.14.5.

 88   C037CRA Dec 1029/90 S Print J4414.

 89   Ibid at para 4.

 90   [2013] FWC 1327

 91   [2008] SAIRC 54

 92   Ibid at para 102.

 93   Ibid.

 94   [2008] FCA 1820.

 95   Ibid at para 12 to 14.

 96   Ibid at para 14.

 97  [2008] FCA 1820 at para 18.

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