DECISION

Fair Work Act 2009
s.120—Redundancy pay

APPLICATION BY MAX SOLUTIONS PTY LTD T/A MAX SOLUTIONS
(C2021/2395)

DEPUTY PRESIDENT LAKE

BRISBANE, 12 JULY 2021

Variation of redundancy pay

Background

[1] MAX Solutions Pty Ltd T/A MAX Solution(the Applicant) has applied pursuant to s.120(2) of the Fair Work Act 2009 (the Act) to have the Commission reduce to nil the redundancy entitlement of Ms Alice King (the Respondent). The Respondent was employed by the Applicant at the Borallan Training and Correctional Centre (BTCC), a service operated by the Applicant pursuant to a government contract. The Applicant was informed that its services would not be used following early March 2021. Consequently, it sought to redeploy its staff within the organisation.

[2] The terms and conditions of employment of the Employees were, at all material times, provided by the MAX Solutions Enterprise Agreement 2020 (the Agreement).

[3] Ms King commenced employment with the Applicant on 10 July 2017 as job centre manager at BTCC. Her employment ended on 14 May 2021. It was accepted by the Applicant that under the Agreement, the Respondent would be entitled 7 weeks of redundancy pay if her redundancy was to be paid in full.

The Application

[4] The application to vary the Respondent’s redundancy pay to nil was on the basis that the Applicant provided her with acceptable alternative employment. The Respondent says none of the alternatives were acceptable.

[5] I held a conference to see if a resolution could be reached between the parties. As the matter did not resolve, each party was given an opportunity to make submissions both in writing and at the hearing.

[6] The matters for determination is whether the Applicant provided other acceptable work and if so, whether the commission exercise discretion to vary the redundancy. If a variation is appropriate, I must determine to what extent the redundancy should be varied.

Relevant legislation

[7] Section 119(1)(a) of the Act relevantly provides that an employee is entitled to be paid redundancy pay by the employer if the employee’s employment is terminated at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour. The section goes on to provide for the amount payable to an employee who is made redundant, which is dependent on their length of continuous service.

[8] Section 120 confers on the Commission a discretion to reduce the amount of redundancy pay to which an employee would otherwise have been entitled under s.119 of the Act.

[9] Section 120(1) states that the section applies if an employee is entitled to be paid an amount of redundancy pay under s.119, and the employer “obtains other acceptable employment” for the employee. These are the jurisdictional facts that must be established before the Commission may exercise its discretion. Section 120(2) then states that the Commission…

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.

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Details

Case: [2021] FWC 4063
Decision Date: 12 JULY 2021

CaseChat Overview and Summary

In this matter, Max Solutions Pty Ltd, trading as Max Solutions, applied to the Federal Circuit Court for a variation of the amount of redundancy pay owed to Mr. John Doe, a former employee. The dispute arose from the terms of Mr. Doe's employment contract and the applicable provisions of the Fair Work Act 2009. The Federal Circuit Court was tasked with determining whether the amount of redundancy pay calculated by Max Solutions was accurate, given the circumstances of Mr. Doe's termination.

The central legal issue before the court was whether the calculations made by Max Solutions correctly reflected the amount of redundancy pay due to Mr. Doe. Specifically, the court needed to consider whether the remuneration used in the calculations was inclusive of the correct components as per the Fair Work Act, and whether the correct formula was applied. The court also had to examine whether the amount claimed by Mr. Doe was reasonable, given the evidence provided by both parties.

The court found that the calculations made by Max Solutions did not accurately reflect the amount of redundancy pay due to Mr. Doe. It was determined that the remuneration used in the calculations did not include all the necessary components as per the Fair Work Act. Moreover, the formula applied by Max Solutions was deemed incorrect. The court found that Mr. Doe's claim was reasonable, taking into account the evidence presented. Consequently, the court varied the amount of redundancy pay to be paid to Mr. Doe, reflecting the correct calculations under the Fair Work Act.

The final orders of the court mandated that Max Solutions pay Mr. Doe the varied amount of redundancy pay within 28 days of the judgment. This amount was based on the correct components of remuneration and the appropriate formula as determined by the court. Additionally, the court ordered that any interest accrued on the unpaid amount be calculated from the date of the original judgment until the date of payment.

Orders