Redundancy and other acceptable employment; the test

Here is a statement of the legal test which applies when determining acceptable alternative employment for redundancy law in Australia.

“In a Federal Court Full Court decision in Australian Commercial Catering Pty Ltd v Fair Work Commission [2015] FCAFC 189, the Full Court dealt with circumstances involving an application for an order to reduce redundancy entitlements where a refusal of an offer of alternative employment was connected with additional travel requirements.

[21] The Full Court said the following at paragraph 54;

“54. We accept that ordinarily factors such as these will be relevant to the determination of whether employment is “acceptable”. It is nonetheless true, as the employees submitted, that the determination is not made in a vacuum. Regard is to be had to the evidence of the particular circumstances of the employees. After all, the statute speaks of the employer obtaining acceptable employment “for the employee”. What might be acceptable employment for one employee will not necessarily be acceptable for another. The Full Bench recognised as much in Clothing Trades Award. To take one example, even where all other circumstances are equal, it is unlikely that employment obtained by an employer for an employee with a disability which prevents him or her from climbing stairs will be acceptable employment for that employee if the only access to the lavatories is via two flights of stairs.”

[22] The Full Court went on in the context of the particular facts of the case before it to says as follows about travel;

“56. …ACC accepted (and rightly so) that increases in travel times may be taken into account in determining whether the employment obtained by the employer is “acceptable employment for the employee” within s 120(1)(b)(i). Plainly, these factors are relevant, whether or not an objective test applies. An increase in travel times will often result in a reduction in net wages in that it will usually involve higher fuel costs or increased fares. It may also have higher personal costs in that it will reduce the amount of leisure and family time available to an employee….””

Replay Browns Trust Pty Ltd T/A iPlay Pacific Fair (2019) FWC 7519 delivered 31 October 2019 per Simpson C