An employer’s application to reduce redundancy entitlements to nil for a nurse who refused an alternative occupational health technician role at higher pay, has been refused in a recent decision by the Fair Work Commission.
The Facts
The For Health Group made an occupational health nurse position redundant at its Browns Plains Medical and Dental Centre. The Group offered for the employee to transfer to an occupational health technician in an associated company for higher pay. The Group terminated the employment after the nurse refused the offer.
According to the Fair Work Act, the nurse was entitled to 14 weeks’ redundancy pay unless reduced by order of the Fair Work Commission.
The Group applied to the Fair Work Commission for an order to reduce her redundancy pay on the basis that the occupational health technician position was ‘acceptable alternative employment’.
The Issues
The Group argued that the position was an acceptable alternative employment because:
- It had similar duties to her Enrolled Nurse role.
- It believed she had the necessary qualifications, experience, and skills to be successful in the role of technician.
- It was at the same location as her original role.
- It was willing to accommodate her part-time work arrangement in place at the time, even though the new role was full-time.
- It had agreed to increase her rate of pay from $30.75 per hour to $35.00 per hour.
- Her seniority or long service leave entitlements would not be reduced.
The nurse argued that the position was not an acceptable alternative because:
- The role had different hours that would significantly impact her ability to manage her caring responsibilities and family circumstances, as she is responsible for collecting her three children from their school after 3.00pm.
- It was not a nursing role and required her to perform many non-nursing duties.
- Accepting a non-nursing role would jeopardise her career, put her nursing registration at risk, and limit her future ability to apply competitively for nursing roles with other employers.
- The workload of the proposed technician role was significantly higher than that of her original position.
- Her annual leave would meanwhile drop from five weeks under the Nurses Award to four weeks under the Health Professionals and Support Services Award.
The Decision
The Commissioner found that the technician role was not an acceptable alternative even though the location was unchanged and there would be an increase in salary.
The Commissioner observed that:
“I accept that [the nurse] has spent her career as a professional Nurse and takes great pride in her profession. Viewed objectively, I accept that accepting a non-nursing role, would not only have impacted her ability to maintain her Registration, but would also have impacted on her personal and professional identity and her capacity to find future employment in her chosen career. This consideration does not weigh in favour of a finding that the position offered was acceptable.”
The Commission also considered the impacts of the change in working hours and losing a week’s annual leave.
The Commission declined to order any reduction in the redundancy entitlement.
Implications
Applications to reduce redundancy pay for arranging acceptable alternative employment are closely scrutinised by the Fair Work Commission.
Factors such as same location and same or higher pay are relevant but are not always decisive.
Impacts to carer responsibilities from changes in working hours can weigh against reducing redundancy pay.
Also impacts upon the employee’s career are very relevant, especially where the alternative position may depart from the employee’s professional background and training.
At WorkLegal our experienced team can answer your questions and put you on the right track. A range of fixed-price Initial Consultations will suit most people’s needs in quickly learning what their options are.
Some more information is available here or you can book an initial no-obligation chat online to review an employment contract or contractor agreement.