Application by Techtronic Industries Australia Pty Ltd

[2019] FWC 7401

[2019] FWC 7401

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.120—Redundancy pay

Application by Techtronic Industries Australia Pty Ltd
(C2019/6203)

DEPUTY PRESIDENT COLMAN MELBOURNE, 29 OCTOBER 2019

Variation of redundancy pay

[1] Techtronic Industries Australia Pty Ltd (Techtronic) has made an application under s 120(2) of the Fair Work Act 2009 (Act) to have the Commission vary the redundancy entitlement of Mr Andrew Grant.

[2] Mr Grant was previously employed by the company in the position of national sales manager (previous position). That position has been made redundant as a result of changes within the company’s global business structure. Mr Grant was employed in the previous position for a period of just over five years. As he had more than five but less than six years’ service, Mr Grant is entitled to ten weeks’ redundancy pay, pursuant to s 119 of the Act.

[3] The company seeks to have the Commission vary this entitlement, on the basis that it has obtained acceptable alternative employment for Mr Grant. It submits that Mr Grant has been redeployed to the role of business relationship manager, which is commensurate with his skills and experience, and that Mr Grant has accepted the new role.

[4] The company submits that it was agreed with Mr Grant as part of his redeployment that he would receive ten weeks’ redundancy pay calculated on the difference between the salary of his previous role, which was $131,500, and that of his new role, which is $100,000. The company seeks to have the Commission reduce Mr Grant’s redundancy entitlement under s 119 of the Act to $6,057.70.

[5] I listed the matter for a telephone mention on 25 October 2019. During the proceedings, Ms McDonald, who appeared for the company, and Mr Grant confirmed that they had reached an agreed position on the above terms. Mr Grant confirmed that he was happy with these arrangements. I advised the parties that I had decided to grant the application and that I would issue brief written reasons for my decision, which are as follows.

[6] Section 120 of the Act 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. 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 ‘may determine that the amount of redundancy pay is reduced to a specified amount (which may be nil) that the FWC considers appropriate’. If the Commission makes a determination under s 120(2), the amount of redundancy pay to which the employee is entitled is the reduced amount specified in the determination (see s 120(3)).

[7] I am satisfied that Mr Grant is entitled to be paid an amount of redundancy pay under s 119, and that Techtronic obtained other acceptable employment for Mr Grant in the form of the new role. I note that Mr Grant is content with the new arrangements and does not dispute that the new role is acceptable and was obtained for him by the company.

[8] I consider that it is appropriate to exercise my discretion to vary the redundancy entitlement of Mr Grant arising under s 119, and that the amount proposed ($6,057.70) is appropriate.

[9] A determination will be issued separately reflecting this decision.

DEPUTY PRESIDENT

Appearances:

Ms B. McDonald for Techtronic Industries Australia Pty Ltd

Mr A. Grant for himself

Hearing details:

2019

Melbourne (by telephone)

25 October

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