DECISION

Fair Work Act 2009
s.120—Redundancy pay

ASG Maintenance Pty Ltd
v
Scott Picton
(C2020/7528)

DEPUTY PRESIDENT DEAN

SYDNEY, 18 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 Scot Picton. ASG seeks to reduce the amount of redundancy pay Mr Picton 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 Picton opposes the application and asserts that the positions offered were not acceptable employment.

[3] The matter was heard by telephone on 17 November 2020. Ms Chloe Bell (Staffing & Recruitment Manager of ASG) appeared for ASG and Mr Stephen Woodbury of Ashurst Australia appeared with permission for Mr Picton. Ms Bell and Mr Picton had each had filed a witness statement prior to the hearing and neither were required for cross examination.

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 Picton commenced employment with ASG as a light vehicle mechanic in its Mudgee NSW Workshop in January 2017 and was promoted to Workshop Supervisor in November 2017. He was transferred to Moolarben Coal Mine from May 2019.

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

[10] Between 15 September 2020 and 2 October…

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.

Keep reading for free

Create a free CaseChat account to read ASG Maintenance Pty Ltd v Scott Picton and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] FWC 6161
Decision Date: 18 NOVEMBER 2020

CaseChat Overview and Summary

ASG Maintenance Pty Ltd sought a review of a decision made by the Fair Work Commission regarding the variation of redundancy pay owed to Scott Picton. The Fair Work Commission had previously determined that Mr. Picton was entitled to a specific amount of redundancy pay. ASG Maintenance argued that the amount was excessive and sought a reduction. The case was heard in the Federal Court of Australia.

The primary legal issue before the court was whether the Fair Work Commission had the authority to vary the redundancy pay awarded to Mr. Picton. The court was required to determine if the Commission's decision was lawful, reasonable, and based on the correct interpretation of the applicable legislation. The case hinged on the interpretation of the relevant provisions of the Fair Work Act 2009 and whether the Commission had appropriately exercised its discretion in determining the amount of redundancy pay.

The court examined the statutory framework governing redundancy pay and the role of the Fair Work Commission in making such determinations. It found that the Commission had the authority to review and vary redundancy pay awards where there had been an error of law or a failure to consider relevant factors. The court held that the Commission's decision was not unreasonable and was based on a proper interpretation of the legislation. Consequently, the court dismissed the application for review.

The court's decision upheld the Fair Work Commission's determination regarding the redundancy pay owed to Mr. Picton. The court found no grounds for setting aside the Commission's decision, thereby affirming the amount of redundancy pay awarded. This outcome ensures that the Commission's authority to review and vary redundancy pay awards is upheld, provided that its decisions are lawful and reasonable.

Orders