Lodhia (Jayesh) Nominees Pty Ltd v Rosita Sahib, (C2014/4342) [2014] FWC 3703, Gregory, C.

In the first matter, a part-time pharmacy employee rejected a job offer on the same money and hours following the business being sold.  Having rejected the offer the employer terminated the employee’s services.  The former employee then sought redundancy pay via application to the FWC.

The Commissioner, was required to decide on the issues of:

  • Has Lodhia obtained “other acceptable employment”?
  • If so, is it appropriate to reduce the redundancy pay entitlement otherwise due to Ms Sahib, and by what amount?

The Commissioner then used relevant case law (as DP Sams set down in Spotless Services in the determination of this matter. That is:

  • Determining what constitutes acceptable alternative employment involves an objective exercise.
  • Mere rejection by the employee of the alternative employment does not make it objectively unacceptable of itself.
  • Comparable or equivalent of pay and conditions, including hours of work and continuity of service are important and relevant considerations.
  • To be acceptable the employment needs to take account of the employee’s skills, seniority, experience and capacity to perform the role.
[Noting that the lawyers were allowed in again on the basis that the matter involved a degree of complexity and his involvement would enable it to be dealt with more effectively. The former employee elected to participate by telephone.]

The former employee had worked in the pharmacy for apparently three different owners of the business over a period of more than ten years.

In finding in favour of the company, the commissioner stated:

“I am accordingly satisfied the test of obtaining “other acceptable employment” has been met. In addition, Ms Sahib’s rate of pay was to be maintained and her continuity of employment preserved if she accepted the offers made to her. I am therefore satisfied, in all the circumstances, Lodhia should be relieved of any obligation to make redundancy payments to Ms Sahib.”

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