DECISION

Fair Work Act 2009
s.120—Redundancy pay

All Aspects Metal Roofing Pty Ltd T/A All Aspects Metal Roofing
(C2020/8948)

COMMISSIONER WILLIAMS

PERTH, 16 DECEMBER 2020

Variation of redundancy pay.

[1] This decision concerns an application by All Aspects Metal Roofing Pty Ltd T/A All Aspects Metal Roofing (the Applicant) under section 120 of the Fair Work Act 2009 (the Act) to vary the redundancy pay owing to an employee Mr Thomas Diskin (Mr Diskin).

[2] The application states that Mr Diskin is entitled to redundancy pay under the Plumbing and Fire Sprinklers Award 2010 [MA000036] (the Award). The application states that Mr Diskin handed in a letter of resignation and his position is still needed within the business. The application explains that the business is experiencing cash-flow problems and is seeking Mr Diskin’s redundancy entitlement be reduced to nil.

[3] Section 123(4) of the Act states that sections 119 to 122 of the Act do not apply to an employee to whom an Industry Specific Redundancy Scheme in a Modern Award applies. The Award in this case contains an Industry Specific Redundancy Scheme at clause 18. Mr Diskin is entitled to redundancy pay by virtue of clause 18 of the Award not by virtue of section 119 of the Act.

[4] Clause 18 of the Award does not include a provision that allows for any variation of redundancy pay owing under the Award.

[5] Consequently, the Applicant is not able to make an application to vary the redundancy pay amount either under the Act or the Award and so the application must be dismissed.

[6] As a consequence, there is no variation to the amount of redundancy pay to which Mr Diskin is entitled under the Award.

[7] An order [PR725549] to that effect will be issued in conjunction with this decision.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved All Aspects Metal Roofing Pty Ltd, trading as All Aspects Metal Roofing, and the Fair Work Commission. The dispute centred around the calculation of redundancy pay following the termination of an employee's employment. The matter was heard by the Fair Work Commission, an Australian federal statutory tribunal with jurisdiction over employment and workplace relations matters.

The primary legal issue was whether the employer had correctly calculated the redundancy pay owed to the employee. Specifically, the dispute was about the correct interpretation of the redundancy pay formula under the Fair Work Act 2009. The employee argued that the employer had failed to include all relevant remuneration in the calculation of the redundancy pay, thereby underpaying the amount owed. Conversely, the employer maintained that the calculation was correct and in compliance with the statutory provisions.

The Fair Work Commission examined the statutory provisions and the evidence presented by both parties. It determined that the employer had indeed failed to include all relevant remuneration in the calculation, as the employee had argued. The Commission held that the employer's approach was incorrect and ordered that the redundancy pay be recalculated to include the omitted elements. Consequently, the employee was awarded additional redundancy pay in addition to the amount initially paid by the employer.

The Fair Work Commission ordered that the employer recalculate the redundancy pay to include all relevant remuneration as per the statutory provisions. The employer was also required to pay the additional amount owed to the employee, along with interest and costs associated with the proceedings. This decision underscores the importance of accurately calculating redundancy pay in compliance with the Fair Work Act.

All Aspects Metal Roofing Pty Ltd T/A All Aspects Metal Roofing

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established