Industrial Relations Commission of New South Wales CITATION: Hans Continental Smallgoods Pty Ltd and Sandra Farrell [2005] NSWIRComm 1103 APPLICANT Hans Continental Smallgoods Pty Ltd PARTIES: RESPONDENT Sandra Farrell FILE NUMBER(S): IRC5706 of 2004 CORAM: McKenna C CATCHWORDS: Application not to pay severance pay - Employment Protection Regulation 2001 considered - Clerical and Administrative Employees (State) Award considered - Acceptable alternative employment - Order exempting payment not made out - Application dismissed - Interest on payment recommended Employment Protection Regulation 2001 LEGISLATION CITED: HEARING DATES: 03/07/2005; 03/08/2005; 05/17/2005 DATE OF JUDGMENT: 06/23/2005 APPLICANT Mr M Rodgers, agent LEGAL REPRESENTATIVES: RESPONDENT Mr J Law, agent DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: MCKENNA C 23 June 2005 Matter No IRC 5706 of 2004 HANS CONTINENTAL SMALLGOOODS PTY LTD AND SANDRA FARRELL Application by Hans Continental Smallgoods Pty Ltd for orders not to pay severance pay DECISION [2005] NSWIRComm 1103 1 Sandra Farrell was formerly employed by Hans Continental Smallgoods Pty Ltd as a Senior Accounts Payable Clerk. Hans gave Mrs Farrell notice of termination in a letter dated 31 August 2004. That letter read: Dear Sandra, Re: Restructure of Accounts Dept The company has held discussions with you to advise of the decision to make the position of Senior Accounts Payable Clerk redundant. As has been indicated to you in various discussions, the company has fully explored all alternative positions. The Company believes that a suitable and viable alternative position in status and salary is available, namely that of Purchasing Officer, and has offered you this role accordingly. Unfortunately, you have declined this opportunity. The Company has now interviewed a number of applicants for the suitable and viable alternative position that has been offered to you. We would like to give you an additional 24 hour period to reconsider your decision before an appointment is made. Should you change your mind the new role will commence on the [sic] 20 September, 2004. If your decision is unchanged the Company will move to make your employment redundant effective 29 September, 2004. This letter serves as your official notice of termination of employment. As the company has offered you a suitable and viable alternative position, severance pay will not be payable. I would like to take this opportunity to wish you well in your future endeavours. Should you have any questions please do not hesitate to contact me on [telephone number]. Your sincerely [signature] Gary Schweizer Human Resources Manager 2 On 22 September 2004, Hans subsequently filed an application seeking an exemption from making a redundancy payment to Mrs Farrell on the basis it had offered her alternative employment. Background to the termination 3 The background to Mrs Farrell's 15 years' employment at a smallgoods manufacturing workplace in Blacktown, culminating in her termination of employment with Hans in 2004, is set out more fully in a decision in a related unfair dismissal application also delivered today in IRC04/5628. 4 Mrs Farrell's employment with Hans commenced following a transmission of the business at Blacktown from another company. Mrs Farrell accepted Hans's offer of employment and began working for the company in December 2003 under the following terms and conditions of employment: Dear SANDRA OFFER OF EMPLOYMENT Herewith confirmation of your offer of employment with Hans Continental Smallgoods Pty Ltd, on the same core terms and conditions as you currently enjoy. Your continuity of service will be preserved and accrued annual leave, sick leave and long service leave entitlements will be recognised by Hans Continental Smallgoods Pty Ltd. Attached to this letter of offer is a WELCOME TO HANS MEMORANDUM introducing Hans and detailing key issues for the short to medium term that will be applicable to your employment with Hans. CONFIRMATION OF YOUR POSITION AND PACKAGE DETAILS For the sake of clarity we set out below the core terms and conditions of employment that will be applicable to your employment with Hans Continental Smallgoods Pty Ltd. To allow for proper consideration to be given to the integration into the Hans structure salaried staff transferring to Hans will remain on their current salaries. Any adjustments will coincide with the Hans salary review dated of 01 April 2004. Position Title: SENIOR ACCOUNTS PAYABLE CLERK Reporting to: Venthan Rasa Title: Plant Accountant BMC Current base annual salary (excluding Super): $40,560 After 01 April 2004 Hans will have an integrated remuneration and benefit structure. Similar benefits will be applicable but identical benefits can unfortunately not be guaranteed. The following is a list of the current benefits applicable and some of the changes that can be expected: 1. Monthly pays for salaried staff ... 2. Company cars ... 3. Superannuation ... 4. Pay for performance programme ... 5. Mobile phones ... 6. Credit cards ... 7. Other terms and conditions that will also transmit to Hans In addition to the abovementioned the following terms and conditions will also transmit to your employment with Hans: (For more details than that provided by the summaries below please refer to your OSI letter of offer) . Working hours: 40 hours with reasonable overtime for which payment is included in your base salary . Termination: 4 weeks written notice required . Business standards: Code of conduct requirements . Severance benefits: The Employment Protection Regulation 2001 severance benefits shall apply. These benefits are the same as that of the plant EBA. … We encourage you to accept this offer of employment effective Monday 01 December 2003. Your acceptance of this offer will be confirmed by you reporting for duty at your usual workplace on your first normal working day on or after 01 December 2003 or, if you are on approved leave, on the first working day following the end of that leave. Alternatively, you may sign acceptance of this offer of employment and hand the original to your reporting manager fore forwarding to the relevant salaries office. Should you have any queries in relation to this letter of offer, please do not hesitate to contact your Plant Resources Manager. We are looking forward to working with you at Hans. Yours faithfully Mike Adams Managing Director HANS CONTINENTAL SMALLGOODS PTY LTS I accept employment with Hans Continental Smallgoods Pty Ltd effective Monday 01 December 2003. ____________________________ Signature of employee [my underlining] 5 By her acceptance of the offer of employment, Mrs Farrell continued working at the Blacktown site with Hans as her new employer. Mrs Farrell's employment continued without incident until 20 August 2004, when she was informed her Senior Accounts Payable Clerk position was redundant. 6 Although severance benefits were addressed under the terms of Mrs Farrell's contract, Mr M Rodgers, Hans's agent, submitted the redundancy provisions of the Clerical and Administrative Employees (State) Award ("the Award") underpinned Mrs Farrell's employment. Although Mrs Farrell earned more that 15 per cent above the highest rate of pay in the Award, he submitted cl39 (Redundancy) continued to apply given the operation of cl40 (Exemptions). As such, it was open to the company to make an application for exemption from making payment under the exemption mechanism in the Award. Clause 39(v)(c) of the Award provides that an employer may apply to the Commission for an order relieving it of the obligation to pay the Award's scale of severance payments if the employer obtains acceptable employment for the employee. In making the application for exemption, Mr Rodgers also placed reliance upon s146(1) of the Act, but as that section describes general functions of the Commission I do not consider it may, of itself, be used as the basis for making the exemption application. 7 Mrs Farrell's case contended her redundancy payments were determined by the contract of employment, namely those set out in the letter of offer dated 25 November 2003. As such, Mr J Law, the applicant's agent, submitted Mrs Farrell's redundancy entitlements were not determined by the Award and nor was her entitlement to severance payments open to an exemption application under cl39(v)(c) of the Award. He submitted that if, however, the Award and its exemption provisions did apply to Mrs Farrell's redundancy, then Hans had not made out a case for granting an exemption. Industrial regulation 8 There was no material, such as records for the purposes of s129 of the Act, before the Commission to establish which industrial instrument covered Mrs Farrell's employment at any time during her 15 years' employment, only opinion evidence that her entitlement to a severance payment in the event of redundancy was, around the time of her termination of employment, underpinned by the Award. 9 Once Hans purchased the Blacktown business, its letter offering employment to Mrs Farrell plainly stated: "The Employment Protection Regulation 2001 severance benefits shall apply". The letter continued with the advice that, "These benefits are the same as that of the plant EBA." Jurie Fourie, who was the Group Human Resources Manager for the company which formerly employed Mrs Farrell and is now employed as Hans' General Manager, Human Resources, explained that letters of this type were issued to all staff because redundancy entitlements differed between salaried employees, depending, for example, on which industrial instrument, if any, underpinned the employment. Mr Fourie further explained that the wording concerning severance payments was designed, "basically to give them confidence and clarity" in the event of redundancy, even though the company did not go into detail about the entitlements at that time. Mr Fourie's evidence as to providing assurance about the scale of entitlements that would apply on redundancy was reinforced by the wording of the letter of offer itself, which referred to clarifying the core terms and conditions of employment. 10 The scale of severance payments is identical under each of the three instruments that may have applied to Mrs Farrell's entitlement to severance pay in the event of redundancy, namely: - the Employment Protection Regulation 2001 ("the Regulation"); or - the OSI International Foods (Australia) Pty Ltd and the Australasian Meat Industry Employees Union, New South Wales Smallgoods Manufacturing Agreement 2001, which was certified under s170LJ of the Workplace Relations Act 1996 (Cth) (PR913057) ("the plant EBA"); or - the Award. Consideration 11 I have doubts whether cl39(v)(c) of the Award applied to Mrs Farrell's employment. The evidence indicated that Hans's offer of employment was in standard terms and drafted to assure salaried employees about the payments they would receive in the event of redundancy. The terms and conditions in the offer of employment dated 25 November 2003 indicated in unembroidered language, and "for the sake of clarity", that Hans offered the scale of severance benefits under the Regulation. It must be observed the Regulation does not actually apply to employees unless the employment is covered by an award or agreement, but it was clear from the evidence it was the scale of severance benefits set out in the Regulation that was being assured as opposed to the full operation of the Regulation. 12 It was, of course, open to the parties to incorporate the scale of severance benefits of the Regulation (or the plant EBA) in the contract of employment, given the scale of payments is not inferior to that contained in the Award. Mrs Farrell's contractual entitlement to a severance payment as set out in the letter of offer of employment is at least equal to and, on one view of it, better than the Award entitlement. That is, the simple inclusion of the scale of severance benefits under the Regulation may be viewed as being more advantageous to Mrs Farrell than the Award, because there is no mechanism under the Regulation for Hans to seek an exemption from making payment. Provisions which are more advantageous to employees than the provisions of the Award are protected by cl39(vi) (Savings Clause) contained in the Award. An alternative view would be that the broad package of redundancy provisions of the Award (had they been applied to Mrs Farrell) were potentially more advantageous than an unfettered entitlement to a severance payment. 13 The letter of offer also provided the advice that, "These benefits [in the Regulation] are the same as that of the plant EBA". The plant EBA did indeed provide the same scale of severance payments as the Regulation; it also contains many provisions which broadly parallel the provisions of the Award concerning more general, redundancy-related rights and obligations. Once again, it was open to the parties to incorporate such provisions into the contract of employment given the savings provision of cl39(vi) of the Award. As the letter provided an assurance that, "These benefits [in the Regulation] are the same as that of the plant EBA" it may be that the redundancy provisions in the plant EBA were incorporated into the contract of employment, although the incorporation of all those provisions seems less likely than the incorporation of just the scale of entitlements. As Mr Rodgers submitted, such a construction may not be available even on an ordinary grammatical reading of the letter of offer. 14 On balance, it seems doubtful Mrs Farrell's entitlement to a severance payment was determined by the Award. The Award minima in relation to the scale of severance payments were probably displaced by the contractual arrangements determined in the letter dated 25 November 2003. Those terms and conditions of employment specified an entitlement to a severance payment which is not qualified in any way, such as by the qualification contained in cl39(v)(c) of the Award. Hence, the contractual arrangement may be viewed as being more advantageous to Mrs Farrell as it concerns the entitlement to severance benefits; and the Award contains at cl39(vi) provisions protecting arrangements that are more advantageous to employees. 15 If, however, Mrs Farrell's severance payments were not fixed by her contract of employment I accept that she certainly would have had, in the alternative, an entitlement under the Award. If the Award applied, then, as a corollary, it would be open to Hans to make the application for exemption. It is unnecessary to decide finally whether any entitlement to a severance payment was determined under the contract of employment (as Mr Laws contended) or the Award (as Mr Rodgers contended). That is, even accepting Hans's contention that Mrs Farrell's entitlement to a severance payment is susceptible to an application for exemption under cl39(v)(c) of the Award, that application has not been made out on the merits. I turn now to those merits. Acceptable alternative employment 16 Assuming cl39(v)(c) of the Award applied to Mrs Farrell, it is necessary to consider whether case has been made out favouring an order for exemption on the basis Hans obtained "acceptable alternative employment". Before turning to a consideration of the alternative employment, I note Hans did not have a proper basis, or was (potentially) premature, in asserting in its letter of termination to Mrs Farrell "severance pay will not be payable". The question of whether a severance payment under the Award should be made to an employee is not unilaterally determined by employers; the Award provides that exemptions may be granted following an appropriate application to the Commission. Although Hans gave notice of termination in a letter 31 August 2004 and advised that a redundancy payment would not be payable, Hans did not make an application for exemption to the Commission until 22 September 2004 (which was after the date the applicant filed her unfair dismissal application). 17 The management of Hans regarded Mrs Hans as a good employee and an asset to the company. Among other epithets, Mrs Farrell was described by Hans's witnesses as an "outstanding" and "highly valued" employee. Given the company's managers were "extremely keen to keep her in the business", Gary Schweizer, Human Resources Manager, examined ways to try to retain Mrs Farrell's "skill set" within the organisation. Mr Schweizer held discussions with a number of colleagues concerning an alternative role for Mrs Farrell, particularly Venthan Rasanyakam, Plant Accountant. Mr Schweizer said a "collective decision" was made to offer Mrs Farrell an alternative position, namely that of Purchasing Officer. The alternative position amalgamated a Purchasing Clerk's position and some accounting work, referred to in the proceedings as "accounts payable gate-keeping". 18 The alternative position carried the same salary as Mrs Farrell's old position and the management considered it also had the same status. Somewhat to the surprise of Mr Schweizer and Mr Rasanyakam, Mrs Farrell was initially reluctant to accept the position and, in due course, declined the alternative position. The alternative position had the same pay as Mrs Farrell's former position, but there was a complex of reasons why she did not want the job. Those reasons focussed on the following areas (which are not dealt with in any order of priority in this decision): status, conditions, weekday overtime, weekend overtime, career change, and work/life balance. 19 Status: The alternative position principally comprised the Purchasing Clerk's role that formerly had been held by Rodyrose Romerosa together with some residual aspects of Mrs Farrell's old position. The alternative position, or something remarkably similar to it, recently had been advertised as a lower-graded and lower-paid, waged position. As such, there was some question whether the job really carried, or would be perceived as carrying, the same status. Despite being closely cross-examined on the matter, Mrs Farrell was firm in her evidence that she was told she essentially would be performing Ms Romerosa's former job, with some additional duties. Moreover, on examining the position description, Ms Romerosa confirmed there were "just little things here and there" that did not form part of the whole role she had performed. 20 The letter giving notice of termination of employment also asserted that, "The Company has now interviewed a number of applicants for the suitable and viable alternative position that has been offered to you. We would like to give you an additional 24 hour period to reconsider your decision before an appointment is made." There was no evidence the position Mrs Farrell had been offered, namely Purchasing Officer, had been advertised before 31 August 2005 or that, before that date, anyone else had been interviewed for that position. The respondent had, however, advertised a lower-graded, wages position of Purchasing Clerk. It does not assist company's case in relation to the status of the position if it was indeed considering appointing applicants for the lower-graded position of Purchasing Clerk to the position Purchasing Officer that, simultaneously, was being offered to Mrs Farrell. 21 Hans's witnesses described the alternative position as being of equal status, but Mrs Farrell did not consider this to be the case. Mrs Farrell considered the alternative job was a "minor" role compared to her former "elite" position. Mrs Farrell understood that she would be doing Ms Romerosa's position and "left-overs" from her former position. Much was made in the proceedings about the importance of Mrs Farrell performing "gatekeeper" accounts work. Although Mr Rodgers put it to Ms Romerosa that her work did not involve gatekeeping work, Romerosa confirmed that she did, in fact, perform such work in her former role. For her own part, Mrs Farrell could not understand why the alternative position was being described to her as a Purchasing Officer's job, when it had been advertised as a Purchasing Clerk's job. 22 The decision-making as to the status of the job obviously had to be assessed by Mrs Farrell on the basis of what she and the company knew about the alternative position around late-August 2004. There was evidence that the purchasing roles, supervisory lines, and work and overtime dynamics at Blacktown have been evolving since August 2004. One manager said the position description for the current incumbent was still "under construction" at the time he gave evidence, which was in March 2005. It is important, if somewhat self-evident, to note that Mrs Farrell's decision-making was based on the information then available, not the way work has since evolved - a matter about which the respondent led a good measure of evidence. Moreover, both parties cases made play of the fact that a trial of the was work not attempted. But as a trial was neither requested by Mrs Farrell nor offered by Hans, the evidence as to that matter is neutral. 23 Working environment: Mrs Farrell understood that the alternative position would, at times, involve working on the floor where raw meat was being processed and supervising storemen - as opposed to routinely working in a supervisory role in the office environment to which she was accustomed. When Ms Romerosa was doing the job she "was always in white gear with a pair of boots on, up and down ... to the stores and the shed and the factory". In this respect, Ms Romerosa testified that her role involved work "on the floor" at least twice a day, checking stock and making sure that "the storemen are doing what they are supposed to be doing". Mrs Farrell was concerned about these types of aspects of the alternative position. There was no evidence Mrs Farrell had previously supervised factory workers or that she had ever been required to don white gear and boots to work on Hans's factory floor, the sheds or stores. 24 Hours: Ms Romerosa left her old position for a number of reasons, including the fact "the workload was getting too much" for her. As a wages employee, Ms Romerosa was paid at overtime rates for her overtime, whereas Mrs Farrell would have been expected to work the weekday overtime in the alternative position as part of her base salary. That is, the offer of employment provided that Mrs Farrell's annual salary of $40,560 comprehended working 40 hours a week with reasonable overtime included in that base salary. Although Mrs Farrell's former salaried position encompassed an expectation that she would work some reasonable overtime, her overtime was only occasional and had been performed at a time of her own choosing. Mrs Farrell worked on Saturdays on only a handful of occasions over her years of employment, such as when the GST was introduced. 25 In contrast with the moderate amount of overtime formerly performed by Mrs Farrell, she thought Ms Romerosa was working about 50 hours a week. The evidence established that Ms Romerosa worked 38 ordinary hours a week with 10 hours' overtime worked on weekdays. Moreover, Ms Romerosa's monthly Saturday stocktakes were additional to that 10 hours' weekday overtime. When overtime was required once a month on Saturdays the work started between 5.00am-6.30am and finished between 3.00pm-6.00pm. Thus, Ms Romerosa ordinarily worked 10 hours' overtime each week and as many as 13 hours on a Saturday, i.e., 23 hours' overtime in a week containing a Saturday stocktake. Given that Mrs Farrell was employed to work 40 hours a week as a salaried employed, with unpaid overtime she was concerned the alternative position would have involved working the "extremely long hours" Ms Romerosa had worked. Mrs Farrell indicated that, at one stage, the salaried employees' remuneration was superior to wages employees, but that the difference had narrowed over time. It seems likely, incidentally, that Mrs Farrell would have earned less money in real terms as a salaried employee working 10 hours' unpaid weekday overtime on an annual salary of $40,560 as Purchasing Officer than Ms Romerosa would have earned working the same hours on her ordinary hourly wages rate of $17.25 as the Purchasing Clerk. Ms Romerosa's hourly overtime rate, which presumably was higher than her base rate of $17.25 and would have further increased her weekly wage, was not in evidence. 26 Mrs Farrell agreed it would not be unreasonable to work one Saturday of four hours once a month. However, she held concerns about the much longer hours she knew Ms Romerosa typically worked. The evidence established that stocktakes could involve between 9-13 hours' work on a Saturday. Mrs Farrell's concerns about the Saturday work were not assuaged by management advice that the stocktake should not, if properly organised, take more than 4-6 hours nor by the advice the company anticipated that Saturday work would continue only indefinitely until new systems were introduced. The company did not inform Mrs Farrell of a date when Saturday overtime would no longer be required, but estimated the work would last for about six months. When this hearing proceeded, six months had elapsed: the new system had not been implemented and Saturday work was still being performed. The time typically involved in the Saturday stocktakes has reduced since Mrs Farrell's termination of employment, but that resulted from post-termination changes including the involvement of additional employees. 27 Career change: Mrs Farrell did not have any experience in purchasing and, as such, she would have required re-skilling and re-training to successfully undertake the alternative role. Although Mrs Farrell could not remember training being offered, the company's evidence indicated there was a preparedness to provide re-training and that training was offered. The evidence as to the re-training the company was prepared to offer was scant, but possibly involved some form of on-the-job training. 28 Mrs Farrell said she was "not a career person and had no desire for a change of career" from accounts into purchasing. Mrs Farrell would have preferred to continue working for another employer in the field in which she was generally experienced, rather than re-training and re-skilling for purchasing work. Indeed, even while working her notice period, Mrs Farrell applied for various jobs better suited to her existing skills and experience than a purchasing role. 29 Although Mrs Farrell's reluctance to accept the alternative position focussed particularly on concerns about the overtime, she had a range of other concerns about the job itself. Mrs Farrell enjoyed her former role and, put simply, did not like what she had been told about the alternative position. It would have involved quite different work and conditions, the need for re-skilling and, it was suggested, working under the supervision of someone who was described as having a "rough" managerial style and with whom there had been some past difficulties (albeit the difficulties with the supervisor were not said to have influenced her decision). Mrs Farrell said she was not career-minded at this stage in her life and had no wish for a career change of the type being pressed on her by the company's managers. She likened herself to an old dog being taught new tricks. She said: ... I wouldn't have been happy within myself. I wouldn't have been performing at my peak as I would have in the accounts department. Purchasing, I have no ... purchasing experience. I wouldn't have been comfortable in the role and I would have been afraid of failure, basically. So I don't - I wouldn't have felt any more secure. 30 Work/life balance: Mrs Farrell outlined the reasons why the additional overtime requirement, in particular, would impinge on her family life and her role and responsibilities as a parent. 31 Mrs Farrell is married with three children who live at home, aged 10, 17 and 19. The family has one car and Mrs Farrell's Saturdays are busy with family responsibilities. Mrs Farrell's 10 year old daughter plays netball all year round, as well as athletics and touch football for part of the year. Her son plays cricket in summer and football in winter. The two teenagers have part-time jobs in a department store in Blacktown. They both work Saturdays at the store, but on different shifts. Mrs Farrell drives the teenagers to work and also collects them when the complete their different shifts. Although the teenagers could have used public transport for commuting, Mrs Farrell described herself as "Mum's Taxi". 32 Even if Mr Farrell assisted in transportation, problems would still arise on some Saturdays due to clashes between cricket and netball fixtures. There were practical difficulties in her husband alone taking the children to events - "impossible" in some circumstances - when there was a clash of times for the sports commitments. Mr Farrell is a sports coach/manager and thus sometimes has his own commitments. There was no evidence that anyone else could assist in transportation to sporting commitments. Mrs Farrell said that if she could not take her daughter to the Saturday events, no one else could - with the likely result that her daughter would not play at all. 33 Mr Schweizer considered Mrs Farrell could have banked her days in lieu and taken them during school holidays, but no-one could recall having told Mrs Farrell about this at the time the company wanted her to take the alternative position. In any event, the fact Mrs Farrell was told she would have been given time off in lieu on a week-day did not assist, because it was Saturday when all the commitments arose and her two school-aged children would be at school on weekdays. In this respect, Mrs Farrell stated: [T]he Saturday work was one of the major factors and plus the girl that was doing the job was working extremely long hours and I have my family. I didn't want to give up my time with my children, although they did offer a day in lieu, but the day in lieu was when my kids were at school and I wasn't willing to - you know, I didn't want to give up my time with my kids, it's the only - you get two days a week. So you know, I just - yeah, I - basically didn't want time in lieu really. 34 Putting aside the practicalities of the demands of Saturday work in the new position and the demands of meeting her family responsibilities, Mrs Farrell enjoys taking her daughter to the sporting fixtures. When asked what specifically Mrs Farrell was needed for on Saturdays, she replied "Well, quality time for one". She said that once children get to high school "they basically tell you to get nicked and I'd like to spend as much time as possible with my 10 year old". Mrs Farrell spoke with quiet pride of how she feels watching her daughter's Saturday sport and, equally, of her daughter's reaction at having her mother present. As Mrs Farrell put it: [My daughter] enjoys having her mother there to watch because if you have a 10 year old when they do something exciting on the court they look at you for approval and basically give you the wave. I - it's that sort of thing I don't like missing out on. 35 Mrs Farrell said she had missed-out on these types of things when her other two children were younger, but she now had a greater emphasis on her children as the priority. Mrs Farrell said she was not prepared to put work before her children again, as she had in the past. She said she was not as career-minded as she once was, and that her family comes first. 36 As to the forgoing matters, Hans' case contended the work on the factory floor would have been minimal, if there was any demand for such work. Although a lower-graded position had been advertised in recent times which contained some of the duties being proposed for Mrs Farrell, the alternative role had been reconfigured and upgraded and, for instance, no longer contained some of the tasks formerly performed by Ms Romerosa (or were not otherwise routinely performed by Ms Romerosa other than where delegated to her). The principal area where Mrs Farrell was inexperienced or untrained for the alternative position was in purchasing and the purchasing systems. Although Mrs Farrell could not remember having been offered training, the company was prepared to provide training for the new position; and the managers could not understand why Mrs Farrell did not want to be re-skilled. The company's case gave short-shrift to Mrs Farrell's concerns about the demands on family life, indicating the company had business demands and she should make alternative domestic arrangements. The evidence in the company's case contended the circumstances of the matter were akin to an employee refusing to accept a transfer, and the refusal was unreasonable. The company's case further contended that the discussions with Mrs Farrell as to the redundancy of her former position and the creation of the new position to retain her had been conducted in ways which were both timely and industrially appropriate. Conclusion 37 The restructure was a genuine one; it resulted in a genuine redundancy of Mrs Farrell's position at Blacktown. The company's approach can be viewed, objectively speaking, as endeavouring to retain Mrs Farrell in employment on the same salary, albeit in an alternative role. Mrs Farrell, for the reasons that were elaborated in the proceedings, did not, however, consider the alternative position to be suitable. Hans' management, particularly through Mr Schweizer, considered that they were endeavouring to mitigate the effect of the redundancy by offering Mrs Farrell the alternative position. As to the alternative position, Mr Schweizer and Mr Rasanakam likened Mrs Farrell's circumstances to an employee refusing a transfer, but that is not an accurate characterisation of the redundancy and the offer of an entirely new position. The evidence also established there was a corporate view it would be to the advantage Hans to retain Mrs Farrell in an alternative capacity, given her years of experience at the site, her knowledge of the customers and the demonstrated high calibre of her work. Hans's offer of an alternative position, while it is to be commended, was not motivated by corporate altruism; the company was motivated by a desire to "retain the talent" or the "skill set" of a "highly valued", employee despite the redundancy and despite Mrs Farrell's own wishes in the matter. 38 There was no evidence of other employees being offered an alternative position, even though one had experience in purchasing which, presumably, would have better equipped her for the role of Purchasing Officer offered to Mrs Farrell. The evidence adduced in the proceedings indicated the person who was experienced in purchasing was not offered the position of Purchasing Officer because she was paid more than Mrs Farrell. Unlike Mrs Farrell, that person received a redundancy package. 39 As I have noted in the related decision concerning the unfair dismissal application, Mrs Farrell was given Hobson's choice, that is, the choice of taking what the company wanted her to accept or nothing. All things considered, I am not satisfied that Hans has established a case that it should be exempted from making a redundancy payment to Mrs Farrell. The company offered an alternative position, but a number of factors militate against concluding it was objectively acceptable or that Mrs Farrell acted unreasonably in declining to accept the alternative position. The objective considerations include reasonably-founded concerns about the weekday overtime and indeterminate date for the cessation of working Saturday overtime, comprising up to 23 hours' overtime a week in addition to her ordinary hours; the status of the position apropos her former position; the terms and conditions under which the work would be performed; the requirement for a mid-life career change involving re-skilling and re-training; and, as to more subjective considerations, the work/life issues raised by Mrs Farrell. A number of matters have been identified in the proceedings which militate strongly against finding Mrs Farrell acted unreasonably in declining the alternative employment. In short, I have not been satisfied that the exemption should be granted on the basis that Hans obtained acceptable alternative employment for Mrs Farrell. 40 The application for exemption is dismissed. It follows that with the dismissal of the application for exemption, Hans should now pay the severance payments due to Mrs Farrell without any further delay. I recommend that interest on the amount be calculated at the statutory rate. ______________________ 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.