Application by Man to Man Pty Ltd - [2016] FWC 103

[2016] FWC 103

DECISION

Fair Work Act 2009
s.120—Redundancy pay
Man to Man Pty Ltd T/A Man to Man
v
Adele Sleiman
(C2015/6959)
COMMISSIONER GREGORY	MELBOURNE, 6 JANUARY 2016
Variation of redundancy pay.
Introduction

[1] Man to Man Pty Ltd T/A Man to Man (“Man to Man”) decided in October this year to

close its Epping store in Melbourne’s northern suburbs. The closure took effect on

6 November and resulted in the staff at the store being made redundant. Ms Adele Sleiman

worked in the store at the time as a part-time Sales Assistant, and had been employed by the

business for more than five years.

[2] Man to Man has now made application to reduce the redundancy entitlement otherwise

due to Ms Sleiman because it submits it made her an offer of “acceptable employment” at

another store location. Ms Sleiman opposes the application.

[3] Mr Rowan Young, the Head of Retail, appeared on behalf of Man to Man. Ms Sleiman

appeared on her own behalf. Both parties also filed written submissions in accordance with

the directions issued, however, neither sought to cross-examine the other.

The Issue to be Determined

[1] Section 119 of the Fair Work Act 2009 (the Act) provides a statutory entitlement to

redundancy pay, with the applicable amount determined by the employee’s length of

continuous service. Ms Sleiman’s period of continuous service with Man to Man entitles her

to 14 weeks redundancy pay.

[2] However, s.120 of the Act provides the Commission with a discretion to reduce or

remove an entitlement to redundancy pay, on application, should the Commission consider it

appropriate. Section 120 states in full:

“(1) This section applies if:

(a) an employee is entitled to be paid an amount of redundancy pay by the
employer because of section 119; and

[2016] FWC 103

(b) the employer:

(i) obtains other acceptable employment for the employee; or
(ii) cannot pay the amount.

(2) On application by the employer, the FWC may determine that the amount of
redundancy pay is reduced to a specified amount (which may be nil) that the
FWC considers appropriate.
(3) The amount of redundancy pay to which the employee is entitled under section
i

119 is the reduced amount specified in the determination.”

[3] In the present matter Man to Man submits the amount of redundancy pay due to

Ms Sleiman should be reduced to four weeks because it obtained “other acceptable

employment” for her.

[4] Therefore:

 has Man to Man obtained “other acceptable employment” for Ms Sleiman as
provided for in s.120(b)(i) of the Act?

 if so, is it appropriate to reduce the redundancy pay entitlement otherwise due to
her, and by what amount?

The Evidence and Submissions

[5] Man to Man provided a brief written submission indicating that the Epping store

where Ms Sleiman was employed closed on 6 November 2015 because of the termination of

the lease. On 13 October it offered Ms Sleiman redeployment in the same part-time Sales

Assistant role at the Man to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Application by Man to Man Pty Ltd

Details

AGLC: Application by Man to Man Pty Ltd [2016] FWC 103
Case: [2016] FWC 103
Decision Date: 6 January 2016

CaseChat Overview and Summary

Man to Man Pty Ltd T/A Man to Man made an application to the Fair Work Commission to reduce the redundancy pay entitlement of Ms Adele Sleiman. The company submitted that it had offered Ms Sleiman redeployment at another store location, and as such, her redundancy pay should be reduced. Ms Sleiman opposed the application.

The legal issue to be determined was whether Man to Man had obtained "other acceptable employment" for Ms Sleiman, as provided for in s.120(b)(i) of the Fair Work Act 2009. If so, it was also necessary to determine whether it was appropriate to reduce the redundancy pay entitlement due to Ms Sleiman and, if so, by what amount.

The Fair Work Commission considered the relevant legislation and authorities on the matter. It was noted that the term "obtains" should be given a broad interpretation, and the onus was on the employer to establish that the alternative employment offered was acceptable. The Commission found that the position being offered to Ms Sleiman at the Craigieburn store was essentially the same in terms of role, responsibilities, part-time hours of work, and hourly rate of pay. However, the additional distance Ms Sleiman would be required to travel to work at the Craigieburn store, and the additional time and cost associated with that travel, represented a substantial additional inconvenience to her.

The Commission concluded that it was appropriate in all the circumstances to decrease the redundancy entitlement that would otherwise be due to Ms Sleiman from the amount of ten weeks to an amount of seven weeks. An order to this effect was issued in conjunction with this decision.

Final Orders:
1. The amount of redundancy pay due to Ms Adele Sleiman is reduced from 14 weeks to 7 weeks.

Orders