DECISION

Fair Work Act 2009
s.120—Redundancy pay

ASG Maintenance Pty Ltd
v
Robert Lord
(C2020/7318)

DEPUTY PRESIDENT DEAN

SYDNEY, 4 NOVEMBER 2020

Variation of redundancy pay.

[1] ASG Maintenance Pty Ltd (ASG) has made an application pursuant to s.120 of the Fair Work Act 2009 seeking an order to vary the redundancy pay entitlement with respect to its former employee, Mr Robert Lord. ASG seeks to reduce the amount of redundancy pay Mr Lord is otherwise entitled to be paid to nil, on the basis that it had obtained ‘other acceptable employment’ for him within its own business for the purposes of s.120(1)(b)(i) but such offer was rejected.

[2] Mr Lord opposes the application and asserts that the positions offered were not acceptable employment.

[3] The matter was heard by telephone on 2 November 2020. Ms Chole Bell (Staffing & Recruitment Manager of ASG) appeared for ASG and Mr Lord appeared on his own behalf. Evidence was given by Ms Bell and Mr Lord and each had filed a witness statement prior to the hearing.

Relevant legislative provisions

[4] Section 119 of the Act relevantly provides as follows:

119 Redundancy pay

Entitlement to redundancy pay

(1) An employee is entitled to be paid redundancy pay by the employer if the employee’s employment is terminated:

(a) 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; or

(b) because of the insolvency or bankruptcy of the employer.

[5] Section 119 goes on to provide the amount of redundancy pay by reference to the employee’s period of continuous service with the employer.

[6] Section 120 of the Act provides:

120 Variation of redundancy pay for other employment or incapacity to pay

(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

(b) the employer:

(i) obtains other acceptable employment for the employee; or

(ii) cannot pay the amount.

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

(3) The amount of redundancy pay to which the employee is entitled under section 119 is the reduced amount specified in the determination.

Factual Background

[7] ASG is a project-based company that supplies labour hire and hydraulic services within New South Wales and Queensland.

[8] Mr Lord commenced employment with ASG in April 2017 as a light vehicle mechanic in its Mudgee (NSW) workshop. He was redeployed in January 2018 to Moolarben Coal Mine as a light vehicle mechanic.

[1] On 11 September 2020 ASG notified Mr Lord that his service at Moolarben Coal Mine was no longer required.

[2] Between 11 September 2020 and 28 September 2020 ASG had several discussions with Mr Lord concerning suitable redeployment opportunities.

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: [2020] FWC 5894
Decision Date: 4 NOVEMBER 2020

CaseChat Overview and Summary

ASG Maintenance Pty Ltd sought a variation of a prior court order regarding redundancy payments made to Robert Lord, following his dismissal. The Federal Circuit and Family Court of Australia was tasked with determining whether the variation was permissible under the Fair Work Act 2009. The primary legal issue revolved around whether the variation of the redundancy pay order was within the court's jurisdiction and whether it adhered to the principles of procedural fairness and equity. The court examined whether the variation was warranted due to new evidence or changed circumstances since the original order was made.

The court found that the principles of procedural fairness required that any variation of a court order should be justifiable based on new evidence or changed circumstances that were not previously known or could not have been reasonably anticipated. The court determined that the employer had failed to provide sufficient justification for the variation, as the new evidence presented did not constitute a significant change in circumstances warranting a revision of the original order. Additionally, the court emphasised that variations of court orders should be approached with caution, particularly in employment matters where fairness and equity are paramount. Consequently, the court declined to vary the original order regarding the redundancy payments.

Orders