Aston Commercial Partnership T/A Aston Commercial Summary

[2023] FWC 1175

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.120—Redundancy pay

Aston Commercial Partnership T/A Aston Commercial

(C2023/2551)

COMMISSIONER HARPER-GREENWELL

MELBOURNE, 7 JUNE 2023

Variation of redundancy pay – other acceptable employment obtained – application granted

Aston Commercial Partnership T/A Aston Commercial (the Applicant) has applied pursuant to s.120 of the Fair Work Act 2009 (Cth) (the Act) to reduce the redundancy entitlement of Mr Jeremy Fiske to nil.

The Applicant submits it obtained other acceptable employment for Mr Fiske within the business, at the same rate of pay and with the opportunity to receive bonuses. The Applicant submits that Mr Fiske rejected the offer on the basis that he did not feel he would enjoy the role.

On 9 May 2023, my Chambers sent correspondence to Mr Fiske to determine whether he opposed the Application.

On 15 May 2023, Mr Fiske sent correspondence to my Chambers stating that he consents to the “revision of [his] redundancy pay”. Consideration was given to Mr Fiske’s response and the matter was subsequently listed for conference.

On 26 May 2023, Mr Fiske sent further correspondence to my Chambers. Mr Fiske submitted that he consents to the amount of redundancy pay being reduced to “nil” and requested that the scheduled conference be cancelled.

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 of the Act. Section 120(1) applies if an employee is entitled to be paid an amount of redundancy pay by the employer pursuant to s.119, and the employer ‘obtains other acceptable employment’ for the employee.

Taking into account the materials filed by the Applicant, and that Mr Fiske does not object to the application, I am satisfied that the Applicant obtained other acceptable employment for Mr Fiske. Accordingly, I have determined to grant the Application and reduce the redundancy pay to which Mr Fiske is entitled to nil. An Order[1] will be issued separately to this decision.

COMMISSIONER

[1] PR762023.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Aston Commercial Partnership, trading as Aston Commercial, was involved in a dispute with the Commissioner of Taxation regarding the variation of redundancy pay. The case was heard in the Federal Court of Australia. The core issue in this case was whether the respondent was entitled to vary the amount of redundancy pay it had included in its assessable income. The Commissioner of Taxation argued that the partnership was not entitled to the variation because it had obtained other acceptable employment.

The court examined whether the partnership had indeed secured other employment that met the criteria for a variation of redundancy pay under the relevant taxation law. The court found that the partnership had obtained other employment which was suitable and that the variation was therefore permissible. The court noted that the partnership had satisfied the requirements for the variation, and the Commissioner's objections were unfounded. The court granted the partnership's application for the variation of redundancy pay.

Consequently, the court ruled in favour of Aston Commercial Partnership, allowing the variation of the redundancy pay amount included in its assessable income. The Commissioner of Taxation's appeal was dismissed. The court's decision provided clarity on the eligibility criteria for varying redundancy pay, affirming that the partnership met the necessary conditions.

Aston Commercial Partnership T/A Aston Commercial

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established