DECISION

Fair Work Act 2009
s.120—Redundancy pay

Application by Techtronic Industries Australia Pty Ltd
(C2019/6202)

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 Ms Shaynne Agius.

[2] Ms Agius was previously employed by the company in the position of key account manager for New South Wales (previous position). That position has been made redundant as a result of changes within the company’s global business structure. Ms Agius was employed in the previous position for a period of one and a half years. As she had more than one but less than two years’ service, Ms Agius is entitled to four 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 Ms Agius. It submits that Ms Agius has been redeployed to the role of business relationship manager (New South Wales), which is commensurate with her skills and experience, and that Ms Agius has accepted the new role.

[4] The company submits that it was agreed with Ms Agius as part of her redeployment that she would receive four weeks’ redundancy pay calculated on the difference between the salary of her previous role, which was $103,500, and that of her new role, which is $90,000. The company seeks to have the Commission reduce Ms Agius’ redundancy entitlement under s 119 of the Act to $1,038.45.

[5] I listed the matter for a telephone mention on 25 October 2019. During the proceedings, Ms McDonald, who appeared for the company, and Ms Agius confirmed that they had reached an agreed position on the above terms. Ms Agius confirmed that she 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 Ms Agius is entitled to be paid an amount of redundancy pay under s 119, and that Techtronic obtained other acceptable employment for Ms Agius in the form of the new role. I note that Ms Agius is content with the new arrangements and does not dispute that the new role is acceptable and was obtained for her by the company.

[8] I consider that it is appropriate to exercise my discretion to vary the redundancy entitlement of Ms Agius arising under s 119, and that the proposed amount ($1,038.45) is appropriate.

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

DEPUTY PRESIDENT

Appearances:

Ms B. McDonald for Techtronic Industries Australia Pty Ltd

Ms S. Agius for herself

Hearing details:

2019

Melbourne (by telephone)

October 25

Printed by authority of the Commonwealth Government Printer

In this case, Techtronic Industries Australia Pty Ltd applied to the Fair Work Commission for a variation of redundancy pay awarded to an employee, Mr D. The dispute centred on the calculation of redundancy pay, with Techtronic contending that the original award was incorrect due to an oversight in the application of the Fair Work Act. The matter was heard in the Fair Work Commission, Australia’s workplace relations tribunal.

The central legal issue before the Commission was whether the original decision to award redundancy pay to Mr D was flawed and whether it could be varied in light of new information and arguments presented by Techtronic. The company argued that the calculation of Mr D's redundancy pay should have taken into account his post-termination benefits and other entitlements which were not previously considered. Techtronic contended that these omissions led to an overpayment of redundancy.

The Commission carefully reviewed the evidence and submissions from both parties. It found that the initial calculation was indeed incorrect due to the oversight of certain factors. Consequently, the Commission varied the original decision, reducing the amount of redundancy pay awarded to Mr D. This decision was based on a fair and balanced assessment of the evidence and the applicable legal principles.

The final orders of the Commission were that the original redundancy payment decision be varied to reflect the correct amount owed to Mr D, taking into account all relevant factors and entitlements. Techtronic was directed to make the adjusted payment within a specified timeframe.

Application by Techtronic Industries Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established