Australian Footwear Pty Ltd T/A Munro Footwear Group v Nadia Sinkovic

[2024] FWC 2935

[2024] FWC 2935

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.120—Redundancy pay

Australian Footwear Pty Ltd T/A Munro Footwear Group
v

Nadia Sinkovic

(C2024/7039)

DEPUTY PRESIDENT O’NEILL MELBOURNE, 22 OCTOBER 2024

Variation of redundancy pay – employee redeployed to a new role – consent of employee - determination made

1. On 4 October 2024, an application was filed by Australian Footwear Pty Ltd T/A Munro Footwear Group (the Applicant), pursuant to s.120 of the Fair Work Act 2009 (Cth) (the ‘Act’) to vary the redundancy pay in respect of its employee Ms Nadia Sinkovic, on the basis that she had been offered and accepted alternative employment.

1. In the application, the Applicant set out the circumstances in which the determination is sought which included the following:

(a)Ms Sinkovic has worked for the Applicant for 2 years and 5 months. Due to lease expiry, the Melton store where Ms Sinkovic was employed would be closed, and as a consequence, her job would no longer be required. Following consultation, Ms Sinkovic was offered and accepted redeployment to another store within the business as a Part Time 2IC;

(b)Ms Sinkovic’s salary as a Part Time Store Manager at the Melton Store (30.5 hours per week) was $49,426 p/a and her new salary as a Part Time 2IC (34 hours per week) is $54,121.04 p/a. Ms Sinkovic’s salary will therefore be higher than her previous role; and

(c)The new role at the Williams Store in Watergardens is located 15.8km closer to Ms Sinkovic’s home.

In these circumstances, the Applicant sought that the redundancy entitlement to Ms Sinkovic of $5,703.01, be reduced to $950.50.

1. A Conference was held between the parties on 16 October 2024 where any concerns were addressed.

1. By email to my chambers on 22 October 2024, Ms Sinkovic consented to the reduction in redundancy pay sought by the Applicant.

The statutory context

1. The legislative provisions relevant to this application are found in s.119 and s.120 of the Act 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.

Note: Sections 121, 122 and 123 describe situations in which the employee does not have this entitlement.

Amount of redundancy pay

(2)The amount of the redundancy pay equals the total amount payable to the employee for the redundancy pay period worked out using the following table at the employee’s base rate of pay for his or her ordinary hours of work:

Redundancy pay period
Employee’s period of continuous service with the employer on termination	Redundancy pay period
1	At least 1 year but less than 2 years	4 weeks
2	At least 2 years but less than 3 years	6 weeks
3	At least 3 years but less than 4 years	7 weeks
4	At least 4 years but less than 5 years	8 weeks
5	At least 5 years but less than 6 years	10 weeks
6	At least 6 years but less than 7 years	11 weeks
7	At least 7 years but less than 8 years	13 weeks
8	At least 8 years but less than 9 years	14 weeks
9	At least 9 years but less than 10 years	16 weeks
10	At least 10 years	12 weeks

(3)A reference in this section to continuous service with the employer does not include periods of employment as a casual employee of the employer.

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, the FWC may determine that the amount of redundancy pay is reduced to a specified amount (which may be nil) that the 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.

1. Having considered the material filed, I find that the offer of part-time redeployment of 34 hours per week as a 2IC, accepted by Ms Sinkovic, constitutes ‘acceptable employment’ within the meaning of s.120 of the Act. Given the circumstances, it is appropriate that the total redundancy entitlement due to Ms Sinkovic of $5,703.01 be reduced to $950.50. An order to that effect will be issued contemporaneously with this decision.

DEPUTY PRESIDENT
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