Industrial Relations Commission of New South Wales CITATION : Ridgey Didge Pies Pty Ltd v Gregory Prott [2004] NSWIRComm 236 PARTIES : Ridgey Didge Pies Pty Ltd Mr Gregory Prott FILE NUMBER: IRC 3365 of 2004 CORAM: Harrison DP CATCHWORDS : Notification under s 130 of the Act re redundancy payment - dispute over award entitlement - application of exemption to payment on grounds that suitable alternative employment was found by employer. Held - acceptable alternative employment offered - refusal of employment offered on preference of employee not fault of employer - order exempting employer from payment of redundancy. LEGISLATION CITED : Industrial Relations Act 1996 HEARING DATES: 08/10/2004 EXTEMPORE JUDGMENT DATE : 08/17/2004 APPLICANT Mr W Linney LEGAL REPRESENTATIVES: RESPONDENT Mr Gregory Prott JUDGMENT: - 4 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Tuesday, 17 August 2004 Matter No IRC 3365 of 2004 Notification under section 130 by Ridgey Didge pies pty ltd OF A DISPute with gregory prott re redundancy payment DECISION [2004] NSWIRComm 236 1 This matter arises from a dispute between Ridgey Didge Pies Pty Ltd ("the Company") and Mr Gregory Prott concerning payment of redundancy in accordance with the Bread Industry (State) Award 319 IG 505 ("the Award"). 2 The matter was unable to be resolved in conciliation and was subject to arbitration on 10 August 2004. An ex-tempore decision was put in transcript. That decision is now formally published. 3 Mr W Linney, Managing Director of the Company, appeared on behalf of the Company with Mr J Linney. Mr Prott appeared on his own behalf with Ms C Dorahy. 4 Mr Linney gave oral evidence and was subject to cross examination by Mr Prott. Mr Prott gave oral evidence and was subject to cross examination by Mr Linney. Both parties provided the Commission with documentary evidence to which they attested and were subject to cross examination. 5 Mr Prott was employed as a baker at the Timbertown historic theme park from 2 May 1999 to 13 December 2003. His duties were to bake bread, bread dough, pies and pastries, plus a small variety of cakes. Mr Prott also supervised the night shift. 6 Timbertown is controlled by Hastings Shire Council, which took a decision not to continue the Company's lease. Mr Prott and three other employees were advised on 20 November 2003 that the facility would close and that their employment would be redundant from 11 December 2003. The employment continued to the last day of baking in mid-December 2003. During this period Mr Linney arranged for new baking facilities and offered all four employees, including Mr Prott, full time positions in that facility prior to conclusion of their employment at Timbertown. Three employees, Messrs Herbert, Wheatley and Souter, took up these positions and continue their employment with the Company. 7 The new facility would only bake pies, pastries and cakes. The bread baking formerly undertaken at Timbertown was contracted to a Mr Trumper, trading as the Bread and Pastry Basket. 8 Mr Prott declined employment at the new facility, preferring to bake bread rather than make pies and cakes. It is Mr Linney's evidence that he introduced Mr Prott to Mr Trumper and arranged for Mr Prott to teach Mr Trumper and his staff the recipes and methods of baking Timbertown bread. 9 Mr Prott denies that Mr Linney introduced him to Mr Trumper, asserting that he made approaches on his own initiative. Mr Prott conceded that he had not known Mr Trumper until informed by Mr Linney that the Timbertown bread would be baked by Mr Trumper's business; nor was he aware of the availability of employment there until informed by Mr Linney. 10 Mr Prott took up employment with the Bread and Pastry Basket and is now working 12 hours per week in that position. 11 Mr Prott deposed that he is medically restricted to 12 hours per week and offered doctors' reports detailing problems with his right knee which limits his ability to work. 12 Mr Linney put that Mr Prott was a highly skilled and energetic employee who possessed excellent baking skills and was a person that he wished to retain in his employ. Mr Linney put that additional employment was available to Mr Prott at the Company's new facility, which he described as far superior to the environment at Timbertown. Mr Linney emphasised that he had offered Mr Prott a full time position at the new facility and that the offer remained open for Mr Prott to work whatever hours he chose baking bread for the Bread and Pastry Basket, which is sold as "Timbertown Bread" through the Company's outlets, and such additional hours as he requires at the new facility. 13 The Award provides a scale of redundancy payments subject to an exemption allowing an employer to pay a lesser amount or no amount of severance pay contained in the Award schedule "if the employer obtains acceptable alternative employment for the employee." 14 The issue to be decided in this matter is whether the employer obtained alternative employment for the employee and whether that alternative employment was acceptable within the meaning of that term within the Award. 15 The Award requires the employer to obtain employment, but does not require the employee to accept it. 16 I find that full time employment at the new facility taken up by the three other employees falls within the definition of acceptable alternative employment. 17 Mr Prott has the right to refuse it, preferring to bake bread. Such refusal abrogates his right to severance pay. 18 The employer's obligation ceased there, however, I find on the evidence that the employer went further to satisfy the Award requirement to find acceptable alternative employment. 19 It is not in dispute that the capacity of Mr Trumper to employ Mr Prott arises only from taking over the baking of Timbertown bread. The evidence clearly demonstrates that Mr Linney was the moving agent in placing the bread with Mr Trumper to bake, marking the product, and arranging for Mr Prott to be involved in the baking process and take up employment with Mr Trumper. The fact that Mr Prott is medically restricted to 12 hours per week is unfortunate but not the responsibility of Mr Linney, who continues to offer whatever employment Mr Prott is willing and able to take up. 20 I determine that the Company has met the requirements of cl 20(v)(c) of the Award by obtaining acceptable alternative employment for Mr Prott and exempt the Company from payment of severance pay to Mr Prott arising from his employment at Timbertown from 1999 to 2003. 21 I so order. 22 Matter No IRC 3365 of 2004 is so concluded. oo0oo DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.