Avenues Australia Pty Ltd T/A Avenues Australia v Kaylah Whitehead

[2025] FWC 1865

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 120—Redundancy pay

Avenues Australia Pty Ltd T/A Avenues Australia
v

Kaylah Whitehead

(C2025/5644)

COMMISSIONER LIM

PERTH, 3 JULY 2025

Variation of redundancy pay – incapacity to pay – consent position reached.

On Wednesday 18 June 2025, Avenues Australia Pty Ltd Trading As Avenues Australia applied to the Fair Work Commission for an Order under s 120 of the Fair Work Act 2009 (Cth) that the amount of redundancy pay due to Ms Kaylah Whitehead be reduced from six weeks’ pay to nil.

On Tuesday 1 July, I conducted a case management conference with the parties to program the matter. During the course of the proceedings, the parties reached an agreement about the amount that Avenues Australia should pay to Ms Whitehead and sought an Order giving effect to their in-principle agreement.

By consent, the parties sought an Order to reduce the amount of Ms Whitehead’s redundancy pay by four weeks to two weeks total on the basis that the Applicant was unable to pay Ms Whitehead, a Manager Service Delivery of Avenues Australia, the redundancy pay owing under s 120 of the Act.

Being satisfied that there was an application properly before the Commission pursuant to s 120 of the Act and that it was appropriate to do so, I have determined the dispute by issuing an Order[1] concurrently with this Decision in the terms sought by the parties. In doing so, the Commission advised the parties that it would be appropriate to publish short reasons for Decision in relation to the Order, and these are those reasons.

COMMISSIONER

Matter determined on the papers.

[1] PR788749.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Avenues Australia Pty Ltd, trading as Avenues Australia, sought a variation of the redundancy pay due to Ms Kaylah Whitehead, originally calculated under section 120 of the Fair Work Act 2009. Ms Whitehead, who was a Manager Service Delivery at Avenues Australia, was entitled to six weeks’ redundancy pay, but the company argued that it could not afford to pay the full amount due to financial difficulties. This led to an application to the Fair Work Commission for a reduction in the amount of redundancy pay. The dispute was ultimately resolved through a consent agreement reached between the parties during a case management conference.

The primary legal issue before the Commission was whether the amount of redundancy pay due to Ms Whitehead could be reduced from six weeks to two weeks, considering Avenues Australia's claim of an inability to pay. This involved interpreting section 120 of the Fair Work Act 2009, which governs redundancy payments, and assessing the circumstances under which a reduction might be justified. The Commission needed to determine whether the company’s financial hardship was genuine and sufficient to warrant a reduction in the redundancy pay amount.

The Fair Work Commission, upon reviewing the submissions and considering the consent agreement between the parties, found that the applicant's financial situation warranted a reduction in the redundancy pay. The Commission accepted the agreement to reduce the amount of redundancy pay from six weeks to two weeks, as both parties had reached a consensual resolution. The Commission issued an Order to reflect the terms agreed upon by the parties, acknowledging the company's financial constraints and the necessity to adjust the redundancy payment accordingly.

The Commission's final order, as requested by the parties, reduced the redundancy pay due to Ms Kaylah Whitehead from six weeks to two weeks. This decision was based on the mutual agreement between the employer and the employee, recognising the employer’s financial difficulties and the necessity for a compromise on the redundancy payment amount.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established