NSW Refusing New and Different Role - What Happens Under Employment Law?

[LMA]

My business division has recently been acquired by a competitor. Initially the competitor announced that everyone would be offered a role with terms and conditions comparable with their current role.

Not unexpectedly, it now seems as though there will be some redundancies and some people will be offered roles that are not at the same level as their current roles but with the same package.

The people who are not offered a role should be entitled to a severance package but what if a person refuses to accept a role that is not at the same career level as their current role?

 

[Sophea]

Hi LMA, as I understand it an employee will not be entitled to redundancy pay in this situation if they reject the new employer's job offer and:

• its terms and conditions are similar to those of the old job
• it recognises the employee's service with the old employer for redundancy pay;
• there would have been a transfer of employment if the employee had taken the job.

There is no universally accepted rule for what would constitute an "acceptable alternative employment offer". It depends on your former role, the industry and the conditions of employment. It will take into account your skills and capabilities or what you could have with some retraining and is in a similar or comparable location and offers similar terms of remuneration.

An unacceptable alternative employment offer could involve the offered alternative job:

• being an unreasonable distance from the employment location;
• requiring a completely different skill set;
• being on a vastly different shift pattern or roster; or
• having lower remuneration.

At the end of the day, what is acceptable is determined objectively by the court and is not dependant on how the employee judges the appropriateness of the new job offer.

 

[LMA]

Hi LMA, as I understand it an employee will not be entitled to redundancy pay in this situation if they reject the new employer's job offer and:

• its terms and conditions are similar to those of the old job
• it recognises the employee's service with the old employer for redundancy pay;
• there would have been a transfer of employment if the employee had taken the job.

There is no universally accepted rule for what would constitute an "acceptable alternative employment offer". It depends on your former role, the industry and the conditions of employment. It will take into account your skills and capabilities or what you could have with some retraining and is in a similar or comparable location and offers similar terms of remuneration.

An unacceptable alternative employment offer could involve the offered alternative job:

• being an unreasonable distance from the employment location;
• requiring a completely different skill set;
• being on a vastly different shift pattern or roster; or
• having lower remuneration.

At the end of the day, what is acceptable is determined objectively by the court and is not dependant on how the employee judges the appropriateness of the new job offer.

Thanks for the reply, I have a team of people affected by this. Most will be offered like for like role but some of my senior managers are likely to be downgraded to roles that they would have been doing over 5 years ago. Under this arrangement I would prefer that they were restructured out.

 

[Rod]

You negotiate what you can, and then it is up to each employee to work out what they want to happen once they know the details.

Sophea has listed the main factors that will apply if the employees are not happy with the outcome.

 

[LMA]

You negotiate what you can, and then it is up to each employee to work out what they want to happen once they know the details.

Sophea has listed the main factors that will apply if the employees are not happy with the outcome.

That is what I am planning. Unfortunately the law seems to be about economic outcome (money, terms and conditions etc.) rather than career level. Some people may be happy to go from a national leader role to an individual contributor with less responsibility for the same earnings but not these people.