The assignment of a new work place location can place a burden on an employee in the form of time, cost or even where that employee can live. In circumstances where an employee is worse off due to a relocation that employee may be entitled to claim a redundancy entitlement.
Is relocation allowed under the terms of your employment?
The first consideration for the Court is whether there is a mobility clause in the employment contract which allows your employer to unilaterally change the location of the workplace. If this is not permitted the employee may have a right to a redundancy.
In Han Jian Liu v NHP Electrical Engineering Products Pty Ltd the Court held that requiring the employee to move to another manufacturing location was as an unlawful request because it directly contradicted employment contract which stated his work was to be performed at ‘Richmond’.
However, in Kweifio-Okai v RMIT University a contract of employment stated that the employment would primarily occur at ‘Bundoora campuses with the possibility to work at others.’ Given that the employment contract described the possibility of alternative work locations, the employer had the right to relocate the employee.
If the employment contract is silent on the location of work, the Courts will look to see if the requested relocation is reasonable. An objective standard is used to assess reasonableness of relocation and factors that may be taken into consideration include:
In Han Jian Liu it was held that relocating the agreed place of work was unreasonable even when the employer was going to cover relocation costs and offered flexible working hours. This was because the employee had unique family responsibilities requiring him to tend to his elderly mother and to be available at certain times to collect his school-aged daughter.
Therefore, an employee’s private and familial duties are relevant and request of relocation may be held contrary to the stated objects of the Fair Work Act 2009 in assisting employees to balance work/family responsibilities.
Possible legal recourse and remedies
Where the original position is being relocated, an employee can argue that their position has become redundant because of the changes in the operational requirements of the employer’s enterprise. In turn, the employer may be liable for redundancy pay under the National Employment Standards or any applicable Enterprise Bargaining Agreement or company policy.