When a bar manager was terminated due to redundancy, he expected a payout – only to be disappointed because his employer said he had refused a suitable alternative position. The employee disagreed, arguing his personal circumstances prevented him from accepting the alternative. He took his case to the Fair Work Commission, but he was to be disappointed again.
The FWC heard the employee’s wife had suffered a stroke two years earlier. She was in need of intensive home care. The manager came to an arrangement with the employer to work fixed shifts to enable him to juggle work and carer’s responsibilities. But the bar where he worked was losing money and had to be shut down. The employer made several offers of alternatives, none of which would change the manager’s status, pay or travel time to and from work.
However they did have the potential to change when he worked, as the club could no longer sustain having a bar manager on a fixed roster. It was this latter aspect which created the dispute. The employee and his union met with the employer several times but the evidence revealed a lack of effort or willingness to compromise on the part of the employee.
The employee and the union also indicated an appreciation of the workplace friction that would inevitably arise if the employee was the only staff member who did not take his fair share of the less popular shifts. His old position did not involve him working with any other staff, so he knew that in the changed environment his special treatment would likely cause resentment.
The FWC accepted that his personal circumstances were difficult but that didn’t mean he should expect the employer to bend to his needs completely. On the contrary, the FWC said the employer’s efforts to accommodate the employee were considerable.
Of particular importance was the observation that the earlier agreement to provide a fixed roster to enable the manager to care for his wife was not immutable. Further, the FWC said that to accept the employee’s view would mean “any employee could claim redundancy if their roster was altered after consultation, but to which they did not consent because they did not consider the change was ‘acceptable employment’. This would be an absurd and impractical outcome.”
The FWC referred to the employer’s award-based right to change rosters and alternative employment is a matter of objective analysis, not the subjective view of the employee affected. Given that the alternative in all the circumstances was “suitable” objectively, the FWC accepted there was a redundancy but ordered the employer be exempt from making any redundancy payout.
This employer made serious attempts to find a compromise but was essentially rebuffed by an employee who, with the support of his union, thought he was untouchable because of the heart rending story attached to his claim. But in that, he suffered from a misplaced sense of privilege. Despite the obvious personal difficulties this manager faced, in the end, the needs and rights of the business and fairness in the workplace, trumped his demands.