Varying redundancy pay

The Fair Work Act provides that an employer may apply to the Fair Work Commission to vary (or reduce entirely) the amount of statutory redundancy payable to an employee whose job is made redundant where the employer arranges “other acceptable employment”. Here is the statutory scheme in operation.

“Variation of redundancy pay

[1] This decision concerns an application made by Ray Village Aged Services Inc T/A

CapeCare (CapeCare or the Applicant) to reduce the amount of redundancy pay to which an

employee, Ms Jane Smart (Ms Smart or the Respondent) is entitled under section 119 of the

Fair Work Act 2009 (Cth) (the Act).

[2] The Applicant seeks to reduce the Respondent’s redundancy pay from seven weeks to

nil on the grounds that she refused other acceptable employment.

[3] The parties have provided written materials outlining their respective positions. Having

considered the evidence and submissions, I have determined that the application will be granted,

in part, and there will be a reduction in the redundancy payment to which Ms Smart is entitled

to by 50%.

[4] My reasons are as follows.

Background

[5] Ms Smart commenced employment at CapeCare on 8 April 2019 and her employment

ceased on 7 September 2022.

[6] Ms Smart was engaged to work 22.8 hours per week (3 days per week).

[7] Ms Smart was employed as a Community Registered Nurse and the terms and conditions

of her employment were governed by the Nurses Award 2020 (the Award).

[8] Ms Smart completed her Bachelor of Health Science (Nursing) degree in 2005 and has

been a Registered Nurse (RN) since 2006.

[9] Consistent with the terms and conditions of the Award and the National Employment

Standards (NES), Ms Smart, being an employee who was employed for more than three years

but less than four years, is entitled to seven weeks redundancy payment.

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DECISION

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[10] The final figure was be based on her working arrangements of 3 days per week.

[11] During the redundancy process, the Applicant offered the Respondent an alternative

position for her to consider.

[12] The parties agreed, in their submissions, that the alternate position put forward by

CapeCare to Ms Smart had no change in the days of work required.

[13] There was a small change to the hours of work but no change to the remuneration Ms

Smart would receive as compared to the redundant role.

[14] CapeCare seek to reduce the redundancy payment to nil on the basis that Ms Smart

refused other acceptable employment within the CapeCare business.

[15] Ms Smart objects to the application on the grounds that the role offered was not other

acceptable employment as it was not substantially similar to her previous role.

Submissions

CapeCare

[16] CapeCare made the position of Community Registered Nurse, that was held by Ms

Smart, redundant due to a lack of available nursing hours in the business’s portfolio.

[17] CapeCare reviewed its internal requirements and identified positions that were available

and confirmed that there was an internal position available that it submits was an appropriate

alternative position to offer the Respondent.

[18] The Applicant submits that the alternative position in question was consistent with Ms

Smart’s qualifications as a RN within the residential team.

[19] CapeCare submitted that both the residential and the community-based home care

services are governed by the Aged Care Quality and Safety Commission and adhere to the same

Aged Care Quality Standards in the provision of care and services to the aged.

[20] CapeCare confirmed that community care services team would provide home services

to clients, including nursing and personal care services for older people who are living

independently and require assistance.

[21] The residential care services team provide services to older people who are unable to

continue living independently.

[22] The main difference between the two services, the Applicant submits, is that residential

care is provided, on a 24/7 basis, within a facility as opposed to the patient’s own home.

[23] The Applicant also highlights that the Quality-of-Care Principles 2014 refers to the

“consumer” and does not stipulate any difference between those in Residential or Community

care.

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[24] CapeCare explained that customers who use the home care services are, on occasion,

recipients of respite care within one of the residential care facilities.

[25] CapeCare submitted that, had Ms Smart applied for the Residential RN position, her

application would have been highly regarded given her previous experience in the aged care

industry and qualifications.

[26] CapeCare highlighted that a RN employed in either the residential or community care

area have consistent and identical key accountabilities, as outlined below:

  • Clinical assessment and leadership.
  • Develop and review consumer care plans.
  • Provide skilled nursing care with particular attention to the performance and

documentation of clinical observations in accordance with the identified clinical need

for the individual.

  • Document all aspects of clinical care and collaborate with General Practitioners and

other healthcare professionals.

  • Liaise with family members and care staff in relation to the consumer’s individual care

needs.

[27] CapeCare submits that the remuneration is the same between the two positions was due

to the same qualifications and experience as an RN being required.

[28] CapeCare submits that the main point of difference between the two positions is that the

community RN provides clinical care support to individuals in their own home, whilst the

residential RN provides the same care to customers at the residential facility.

[29] CapeCare acknowledges that difference procedures may exist between the two

positions, however, it submits, these would be owing to the Aged Care Standards and that the

base nursing competency skills would not differ.

[30] CapeCare submitted that Ms Smart would have been provided with onboarding to the

residential position and would have had a “buddy” to assist with her transition to the new

position. CapeCare explained that this was a standard process for all new starters in the team.

[31] CapeCare highlighted that they had previously transitioned employees between the

community and residential department previously and these transfers are encouraged to develop

skills and to increase workforce flexibility.

[32] CapeCare further submitted that the business genuinely hoped Ms Smart would have

accepted the other acceptable employment, as there was a genuine need for further RNs within

the residential team.

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Ms Jane Smart

[33] Ms Smart acknowledges that both the Community RN and Residential RN positions

require nursing degrees and registration with the Australia Health Practitioner Regulation

Agency (AHPRA). However, the Applicant disagrees that the position offered by CapeCare

was other acceptable employment.

[34] Ms Smart submits that nursing, as a profession, is a very broad and encompasses many

specialty areas.

[35] Ms Smart, highlighted that there are different nursing roles within a hospital context

(i.e., emergency, post-operative care etc.) and similarly there are also different roles for nurses

within the aged care sector.

[36] Ms Smart submitted that the Aged Care Quality Standards (the Standards) and Quality

of Care Principles 2014 (the Principles) are similar between residential aged care and

community care, however, noted that the Standards and Principles are broad and can be applied

to many aspects of aged care.

[37] Ms Smart highlighted that, although the Principles does not differentiate between

residential and home care services, Part 2 and Part 3 of the Principles differentiate the kinds of

services provided in residential care and home care, as well as short term respite care.

[38] Ms Smart submitsthat her previous position, as a Community RN, was very independent

and required a high level of self-preparation and organisation. It was explained that a

community RN will attend to individual consumers directly in the consumers home and, as a

result, the tasks vary greatly consumer to consumer.

[39] The role of a community nurse includes:

  • Facilitating the coordination and communication in the interdisciplinary team to

deliver person-centred care and being the first point of contact for patients;

  • Facilitating access to allied health services and social services;
  • Working across acute and community care settings;
  • Undertaking health assessments and delivering health interventions;
  • Providing referrals to other specialist health providers;
  • Providing education and information to improve consumers health and skill in self

care; and

  • Risk assessment of the consumers home environment.

[40] Ms Smart highlighted the differences between the relevant position descriptions as

follows:

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Community Nurse Residential Nurse

To provide nursing services to Community

clients managing all aspects of the client’s

portfolio in regard to assessments,

developing and on-going monitoring of the

care plans and then the delivery of care in

line with those plans.

To ensure the Residential facility is run in

accordance with the mission, vision and

values of CapeCare by working within the

care team framework to provide holistic care

for residents.

[41] Ms Smart submitted that the community RN’s function is focused on providing care

directly to an individual consumer and ensuring non-nursing aspects of the consumer’s care

plan are also managed and implemented.

[42] In comparison, the residential nurse is focused on the operation of the residential facility,

with 96 consumers, and ensuring multiple parties such as the carers, enrolled nurses, and other

professionals are supervised.

[43] The Respondent also submits that the residential RN position has increased supervisory

requirements and administrative tasks when compared to the community RN role.

[44] Ms Smart highlighted that the community RN will care for one individual consumer at

a time on an independent basis. The Respondent submits that this differs from the residential

RN who is responsible for the care of 96 consumers at one time with the assistance of

approximately 12 fellow team members.

[45] Ms Smart submits that the conditions of consumers being cared for will generally differ

between community care and residential care.

[46] Ms Smart submits that the community RN position does not have any direct reports and

there is minimal supervision of other staff required. Ms Smart emphasised that the community

RN position requires an independent work style. Ms Smart compared this to the residential RN

position which involves daily management and supervision of enrolled nurses and carers.

[47] Ms Smart submits that, whilst there is a skill shortage of qualified nurses, and that other

staff have transitioned between the residential and community caring teams, this does not mean

that this was an appropriate position for Ms Smart as other acceptable employment to the

redundant role.

Legislation

[48] The relevant provision of the Act is set out below:

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

(1) This section applies if:

(a) an employee is entitled to be paid an amount of redundancy pay by the

employer because of section 119; and

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(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.”

Key issue in dispute

[49] The key issue in dispute between the parties is summarised as follows:

  • Is CapeCare’s offer to Ms Smart, to be redeployed to the position of Residential

Registered Nurse, other acceptable employment when compared to her previous

position of Community Care Registered Nurse?

Consideration

[50] It has generally been accepted by the Commission that the following factors should be

considered in relation to section 120(b)(i) of the Act:

  • The nature of the work;
  • The comparability of the work with that performed in the current role;
  • Pay levels;
  • Hours of work;
  • Seniority;
  • Fringe benefits;
  • Workload and speed;
  • Job security;
  • Whether the employee will have continuity of service in the new role;
  • Location and/or the need to relocate;

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  • Travel and/or the cost of travel that is additional to that relevant to the original

employment;

  • Carer’s responsibilities; and
  • Family circumstances.1

[51] There is no suggestion from either CapeCare or Ms Smart that the below factors will

have any notable weight when comparing her redundant position to the proposed position:

  • Family circumstances;
  • Carer’s responsibilities;
  • Job security;
  • Location;
  • Travel costs;
  • Fringe benefits;
  • Days of work;
  • Continuity of service; and
  • Remunerations.

[52] The main factor being disputed by the parties is the nature of the work and comparability

of that work to Ms Smart’s redundant role.

[53] The parties agree that there is a change in the nature of the work in the two positions.

[54] The community RN position is a more independent position which is focused on one

customer at any one time. The residential RN position is focused on the supporting all the

residents in the facility and assisting in managing other nurses and carers rostered on the shift.

[55] It is reasonable to determine, based on the materials before the Commission, that there

is a change in the nature and comparability of the work as it relates to supervisory tasks and

patient management.

[56] I also note that Ms Smart is an experienced professional in her field and has the relevant

qualifications and skills. The Respondent’s skills, together with appropriate onboarding and

training, show she undoubtedly could have fulfilled the position on offer from CapeCare.

[57] The positions are paid at the same rate of remuneration and, as outlined by CapeCare,

this is due to the requirement for the same qualifications.

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[58] From the submissions provided, it is reasonable to determine that the residential RN

position does have increase managerial and administrative duties when compared to the

community nurse.

[59] Despite this change, there is no evidence to support the notion that there is a material

change in the level of seniority between the two positions. Rather, the duties differ due to the

physical environment in which the roles are performed.

[60] I am not satisfied that the duties of both roles, being the care services and tasks inherent

to the RN role, are dissimilar to the extent that the Residential RN role is not other acceptable

employment as required by the Act.

[61] Both roles clearly share common integral elements as they relate to the practical work

preformed by employees. I do not doubt that the nature of the work, as it relates to non-nursing

duties, differs between roles.

[62] However, I am not satisfied that the difference owing to a change in environment leads

to a finding that the role offered is not other acceptable employment.

[63] Had there been other factors in difference, for example if the seniority, remuneration,

location/travel required, between the positions I would be inclined to find different.

[64] However, the role offered, although clearly having some differences, was identical in

prestige, pay, and did not require any substantial location change or travel.

[65] Nevertheless, I accept the Respondent’s submissions that the change in non-nursing

duties, nature of work style, and nature of patient illness would constitute a departing from the

position made redundant.

[66] In the circumstances, I am satisfied that the position offered by the Applicant is other

acceptable employment but, due to the change in the nature of the roles, I am not satisfied the

redundancy amount owing to the Respondent should be reduced to nil.

Conclusion

[67] Having considered all the factors outlined above, and the submissions provided by the

parties, I have determined that the position offered to Ms Smart by CapeCare was other

acceptable employment for the purposes of section 120(1)(b)(i) of the Act.

[68] I note that CapeCare was seeking the Commission to reduce the redundancy payment

Ms Smart is entitled to nil.

[69] I have considered the submissions, competing interests, nature of change in work, the

extent of the change in the nature of the work, and other factors outlined above and determine

that, in this instance, the redundancy payment payable to Ms Smart will be reduced by 50%.

An Order to that effect will be issued.”

 

Application to vary redundancy pay for other employment or incapacity to pay; Ray Village Aged Services Inc T/A CapeCare [2023] FWC 657 delivered 4 April 2023 per Schneider C