The Fair Work Commission has accepted the argument that an administrative officer was not entitled to redundancy on the grounds that she had refused two alternative positions as redeployment options. The Commission determined that consideration of whether a redeployment role is suitable must be balanced, not overly stringent, and that the redeployment option need not meet every requirement of the previous position.

Implications for employers

Employers should endeavour to provide suitable redeployment options in situations of potential redundancy. Employers should, however, be aware that an employee’s refusal of a legitimate redeployment option may preclude an entitlement to redundancy.

Background

Ms Belcher was employed by Monash City Council (Council) in an administrative role in the Family Day Care area. Ms Belcher began employment in 1995. Some time after 2000, and before 2008, Ms Belcher began assisting with playgroup activities. Working 30 hours per week Ms Belcher worked 10 hours either in playgroup itself or in marketing activities around playgroup.

In October 2014, a re-structure of the Family Day Care area occurred as a result of changes to government funding. Employees were advised that some redundancies might occur but that the Council’s primary objective was to find suitable redeployment for staff adversely impacted by the change.

Ms Belcher was offered two positions; first, as a Relief Administration Support Officer and second, as an Administrative and Rostering Officer, with both positions being in Home and Community Care Services. Upon request, Ms Belcher was also offered a third position, as an Administrative/Customer Services Officer at Waste Services.

With reference to the Monash City Council Enterprise Agreement No.7, 2013 (Agreement), Ms Belcher argued that these roles were not suitable as they were not ‘consistent with the Employee’s classification level and previous employment profile’. Ms Belcher sought redundancy entitlements.

Decision

The Commission considered whether Ms Belcher had access to redundancy entitlements because no suitable redeployment position was available. The primary considerations in this determination were the terms of the Agreement governing ‘Surplus Employees’. The Commission considered three questions. First, what does ‘consistent with the Employee’s classification level and previous employment profile’ mean as used in clause 4.2 of the Agreement? Second, what was Ms Belcher’s ‘previous employment profile’? Third, were any of the positions offered to her consistent with her ‘previous employment profile’?

On the first question, Council argued that alternative phrases shed light on the intended meaning of ‘consistent with’; notably that ‘the same as’ and ‘identical to’ were not chosen. Further, that the whole phrase ‘consistent with the Employee’s classification level and previous employment profile’ should be read in a way so as to enable the greatest possible redeployment options. The Council further argued that in determining whether two positions were sufficiently alike, the question was to be approached objectively.

Ms Belcher argued that the choice of words required not only that a new position be consistent with duties performed in the previous employment but also with the environment and context within which the work was performed. In effect, that consideration of the employee’s ‘skills, training, experience, seniority, background and aspirations’ was necessary.

Commissioner Bissett determined that a narrow construction was not appropriate. It was found that the subjective assessment contended by Ms Belcher was inappropriate and undermined the intention of the Agreement, which was to provide for and maximise the opportunities for deployment. Control over access to redundancy was not to be in the hands of employees or Council alone.

Concluding on the first question, the Commissioner noted that hard and fast rules are not applicable. The employee’s views must be considered, although not to the extent that jobs may be rejected for failure to replicate the previous roles. The process of determination must be objective. A consideration of the skills and attributes of an employee related to their employment, and the context of the employment is required. This consideration cannot, however, be too narrow and must allow viable and realistic opportunities to be provided. Further, the intention of the clause in question, allowing maintained employment with the Council, albeit in potentially different roles, must be kept front of mind.

On the second question, there was dispute as to the role itself. The significance of administrative activity compared to the creative – with somewhere between 20% (as argued by the Council) and 33% (argued by Ms Belcher) of time spent on creative activities or involved with the playgroup. Although the Commissioner did not accept Ms Belcher’s evidence on this point it was determined that, in any event, 20% of her time was not a ‘substantial part’.

The Commission considered Ms Belcher’s passion for the work and interest in the child and family area, as well as her completion of non-mandatory training whilst in the role to have been fortuitous rather than a requisite part of Ms Belcher’s role. Neither of these benefits prevented the suitability of a role without their presence.

Accordingly, the employment profile was administrative work with some family work, though with some contextual element related to the family and children situation of the role.

On the third question, in comparing the offered roles, it was noted that Ms Belcher’s claim was not that she did not possess the requisite skills to conduct the roles but that she did not have knowledge of the specific contexts (in Home and Community Care Services or Waste Services). Commissioner Bissett rejected this, stating that context could not be the over-riding factor in the determination. And further, that in any event, the context for two of the roles, in the broader area of Human Support Services, was sufficiently similar with her previous role. The context of the Waste Services role was not, although it was provided on request. A person need not be able to meet every requirement of a position for it to be suitable for redeployment, nor must the role’s context be too narrowly construed.

Belcher v Monash City Council T/A City of Monash [2015] FWC 5892 (3 September 2015)