Redundancy dispute sees Fair Work Commission rule in favour of retail worker

A former employee of a Western Australian retailer has been successful in his bid to receive full redundancy entitlements, after the Fair Work Commission ruled his employer did not provide him with acceptable alternative employment.

Lighting International has operated a number of retail stores in WA since 1980 and specialises in home and residential lighting.

In January this year, Peter Spriggins, who had been employed by the business for eight years and was a manager at the time, was made redundant after the operator closed its Fremantle store.

Lighting International offered Spriggins a new role of 38 hours minimum a week at any of the company’s five other stores. The role was described not as a manager position but as a “retail salesperson”, which required him to be on his feet for up to eight hours a day.

Spriggins argued this position was not acceptable and turned it down. Lighting International then sought to have his redundancy pay varied on the basis that he declined an acceptable offer of alternative employment.

The commission found that while the initial employment offer made to Spriggins by Lighting International in 2006 indicated he would be required to work at any of the company’s locations, he had not been required to do this for seven years.

In addition, the commission ruled the employee had physical limitations from a non-work related accident that would disadvantage him in his new role. After the accident, Spriggins had moved house so that he lived within a kilometre of the Fremantle store because he found commuting physically difficult.

As a result, the Fair Work Commission ruled in the employee’s favour and found he was entitled to the full benefits of redundancy pay.

Emma Starkey, senior associate at Maurice Blackburn, told SmartCompany there are no strict criteria in deciding what constitutes an acceptable alternative employment offer.

“But what the commission does is look at a series of factors and weigh them up and make an objective assessment between the current role and the new role,” Starkey says.

Starkey says in this particular case, even though the employee was going to be paid the same, all other factors about the new role were “vastly different” to his current one.

“So for example, he’d previously been a manager at one store and in his new role he was going to be a salesperson akin to a casual relief salesperson at multiple locations,” she says.

Starkey says small business owners cannot assume that the same level of pay means an acceptable alternative employment offer.

“They need to look at all the factors,” she says.

“Some of them may be hours, pay, location, level of seniority and responsibility, skills and physical capacity. They should also check the person’s contract of employment and the employment conditions … because there might be rules or limitations in them about moving somebody to a new role.”

SmartCompany contacted Lighting International but did not receive a response prior to publication.

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