Definition of job offer can’t be stretched to deny redundancy pay
A Melbourne engineering company recently applied to the Fair Work Commission (FWC) to reduce the redundancy entitlement of a former employee to nil.
JBA Consulting Engineers claimed it had obtained ‘other acceptable employment’ for the hydraulic design draftsperson and thus would not be required to provide him six weeks’ redundancy pay for his nearly three years of continuous service.
The company said it had hired two employment agencies that had identified two suitable roles for him, but that he was not interested in them.
It also claimed that it was responsible for the employee ultimately obtaining employment directly at one of the employment agencies it hired.
The employee submitted that he had obtained his new job independently of the company.
Employee was asked to deal with employment agencies directly
When the company informed the employee about his redundancy, they provided a letter which gave the contact details of consultants at both agencies, and requested that he forward his updated CV to them.
The employee didn’t forward his CV to the agencies, as he did not wish to receive any assistance from the company to find a new job.
He was contacted by representatives of the agencies, but he advised them that he did not require their assistance. The agencies continued to look for suitable alternative roles, regardless of his instruction.
About a week later, JBA sent a letter to the employee informing him that they had found two job vacancies similar to his current position. The letter stated that, in order to progress with these opportunities, he would need to send the employment agencies his CV and attend interviews at the two companies.
Two days later, the employee advised the company in writing that he did not need assistance finding new work.
Employee’s new employer approached him before he was made redundant
The employee told the FWC that he had been making his own efforts to find alternative work and he said that the employment agency that eventually hired him as a recruiter had approached him on a number of occasions before his redundancy, because of his extensive contacts in the industry. He had commenced discussions about joining the firm about a month or two before he was made redundant.
The employee produced emails at the hearing to verify this communication, which was with another employee at the agency who was not involved with JBA’s engagement with the agency.
Notification of a job vacancy is not the same as a job offer
The FWC did not accept JBA’s claim that it had ‘obtained other employment’ for the employee and found that what it obtained was two suitable vacancies, not employment.
JBA’s submission that it had obtained the employee’s current position at the employment agency was also rejected, as the company would not have had knowledge of the employee’s communication with the agency prior to the redundancy.
The application to reduce the employee’s redundancy entitlement was dismissed.
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