Manager secures redundancy entitlements

Manager secures redundancy entitlements

Manager secures redundancy entitlements

A terminated manager has secured his accrued redundancy entitlements following a decision of the Fair Work Commission that a position offered to him did not constitute ‘other acceptable employment’ as allowed under the Fair Work Act 2009.

The employee, Mr F, commenced full-time employment with Hybrid Building Services Pty Ltd (Hybrid) in the position of Project Manager in December 2016.

In late January 2023, Hybrid’s Managing Director advised him that the business was no longer viable, and over the next several months, further advised him they would cease trading at the completion of their current contracts.

On 2 June 2023, he was formally offered employment with an associated entity, Nova Hardware Pty Ltd, in the position of Business Development Manager (BDM). Hybrid asserted that the role was similar in terms of remuneration, location, and responsibility and believed that Mr F had the suitable skills and experience to undertake the role, with some training and orientation to be provided.

After initially expressing interest in the role, he declined the offer on 9 June 2023.

Hybrid subsequently informed him that his redundancy entitlement would be in jeopardy if he rejected the role. With seven years of service, upon being made redundant, he would be entitled to 13 weeks’ pay, amounting to $39,999.97.

On 14 December 2023, his employment ceased, and he was paid out his accrued entitlements except for redundancy.

On 16 January 2024, Hybrid filed an application with the FWC to reduce the amount of redundancy owed to their former employee, Mr F, on the basis that they had obtained and offered him ‘other acceptable employment’ (being the BDM role).

In comparing the roles, Deputy President Gerard Boyce expressed most concern that there was an ‘expectation’ in the BDM role that Mr F would be required to meet a minimum $2.5M budget year in sales. In contrast, his substantive role carried no budget or monetary targets.

Importantly, Hybrid conceded these budgetary expectations were never mentioned or explained to Mr F.

Further, the Deputy President highlighted the requirement for Mr F to undertake new functions, including growing the overall business, assisting with the development of marketing and sales policies, developing monthly sales reports, and managing and developing new project and distributor opportunities.

The Deputy President concluded,

“In the facts and circumstances of this case, I find that Mr F was under no obligation to accept the BDM role when it was offered to him in June 2023 or at any time prior to his last day of employment … In the ultimate sense, I find that Hybrid has not obtained, or did not obtain, other acceptable employment for Mr F within the meaning of s.120(1)(b)(i) of the Act”.

Consequently, the application for non-payment of Mr F’s redundancy was dismissed.

Hybrid Building Services Pty Ltd (C2024/281) 26 March 2024

For queries about redundancy, employee entitlements, restructuring, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Ref: 445.0624

Related Articles

Workforce Advisory Pty Ltd ACN 625359980 Phone 1300 925 529, 07 3607 3850 Email Office@workforceadvisory.com.au
Liability limited by a Scheme Approved under Professional Standards Legislation

@Copyright 2018 to 2023 Workforce Advisory Pty Ltd