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ANZ employee does not have to move branches, FWC rules

By Portner Press on September 9th, 2019
  1. Industrial Instruments
  2. Enterprise Agreements

ANZ Bank has been refused permission to appeal against a Fair Work Commission (FWC) decision that a bank teller could not be made to relocate to a more distant branch.

The 68-year-old employee, who suffers from arthritis, was told that her role at a suburban Melbourne bank branch was no longer required and that she would have to relocate to another branch an extra 35 minutes’ travelling time away.

The employee argued that under ANZ’s enterprise agreement, she could only be transferred to another work location if it did not involve an “unreasonable impact” on her travel time and costs.

However, ANZ disputed this. The employee then applied to the FWC to resolve the dispute.

In the dispute resolution hearing in May, the employee submitted that it was difficult to drive for longer distances due to her age and that her fuel costs could increase by 348%, not taking to account additional vehicle maintenance costs she would also incur.

FWC Commissioner David Gregory concluded that the relocation would “involve an unreasonable impact” on the employee, particularly in regard to:

  • the additional travel time involved;
  • the additional distances involved;
  • the impact of the above factors, given her age, physical condition and what she has been accustomed to over an extended period of time (since 1997);
  • the additional costs associated with the extra travel;
  • the age of her private vehicle; and
  • the lack of any other viable public transport option which might alleviate some of the additional travel burdens.

Commissioner was wrong ANZ contended

In ANZ’s appeal against Commissioner Gregory’s decision, it contended that he erred in the following respects:

  • the employee’s contract of service gave ANZ an unrestricted right to transfer her;
  • he was wrong to consider what she had “become accustomed to”;
  • he mistook the facts and/or made findings not supported by evidence as to:
    • the impact of the employee’s age and arthritis on driving the additional distance;
    • the additional travelling time from the employee’s home to the other branches, compared to her current commuting time to the current branch;
    • the regularity or otherwise of traffic congestion during travel from the employee’s home to the other branches; and
    • the maintenance costs of the employee servicing her vehicle;
  • he took into account irrelevant matters in his consideration of “unreasonable impact”, namely the length of time the employee had worked at the current branch, the travelling time to the other branches compared to her current travelling time, and the impact of the employee’s age and arthritis on her driving the additional distances required;
  • he failed to give weight to material consideration and ignored relevant material, namely:
    • the contract of service;
    • the absence of evidence concerning the effect of arthritis on the employee’s driving capacity;
    • the unchallenged evidence of an external traffic consultant concerning the employee’s existing commute time to the current branch;
    • the unchallenged evidence of the external traffic consultant concerning the additional driving time that would be required by the transfer; and
    • unchallenged evidence of ANZ’s District Manager concerning the size and geographical spread of the Melbourne West district and the travelling time and costs between ANZ branches in that district, ANZ’s operational and organisational requirements, where other employees lived in the district and their travel times to work, and the easy and non-congested nature of the drive to the other branch that would be required; and
  • he failed to give reasons for resolving the contrasting evidence before him concerning the travel time to the other branches.

Accommodating mature-age worker not a ‘significant burden’ for ANZ

The full bench of Vice President Adam Hatcher, Deputy President Alan Colman and Commissioner Donna McKenna refused ANZ permission to appeal.

They believed Commissioner Gregory’s decision didn’t raise “any issue of importance or general application that would enliven the public interest” and they could only grant permission to appeal if it was “in the public interest to do so”.

“Even though it may be accepted that ANZ is a very large employer which transfers employees from one workplace to another with reasonable frequency, we do not consider that the decision has any precedential value in that context,” the full bench said.

“The Commissioner’s application of [ANZ’s enterprise agreement’s] provisions … was confined to the particular circumstances of [the bank teller’s] case.

“The Commissioner did not seek to establish any general standard as to when a proposed transfer will cause an unreasonable impact on an employee’s travel time and costs, and indeed the Commissioner found that it was only circumstances peculiar to [the bank teller] which rendered unreasonable what might otherwise be a reasonable impact for other employees.

“[W]e are not satisfied that any substantial injustice would ensue to ANZ if permission to appeal is not granted.

“The ‘worst-case’ result of the decision may be that ANZ will need to retrench [the employee] and pay her redundancy entitlements.

“If so, that would not in our view be a significant burden for an employer the size of ANZ.

“There may in any event be other alternatives which would allow ANZ to continue to usefully employ [the employee].

“[T]he grounds of appeal are not sufficiently arguable to justify the grant of permission to appeal.”

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Written by top Australian employment lawyers, you can find comprehensive information and practical guidance on the topics raised in this bulletin in the following chapters:

C2 Conciliation

C3 Changing Employees’ Jobs

E1 Employment Contracts

E2 Enterprise Agreements

E6 Employee Grievances and Disputes

M3 Mature-Age Employees

R2 Redundancy and Retrenchment

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