Baptistcare Incorporated

[2014] FWC 7770

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.120 - Application to vary redundancy pay for other employment or incapacity to pay

Baptistcare Incorporated
(C2014/6721)

COMMISSIONER CLOGHAN

PERTH, 31 OCTOBER 2014

Variation of redundancy pay.

[1] On 10 October 2014, Baptistcare Incorporated (Employer) made application to the Fair Work Commission (Commission) pursuant to s.120 of the Fair Work Act 2009 (FW Act) to vary the redundancy pay due to Mr John Winch-Buist (Employee) as a consequence of the Employer reducing the hours worked per week by the Employee.

[2] The Employer provides services in the aged care industry.

[3] This application was the subject of a conference on 28 October 2014. The Employee attended the conference.

[4] The Employee advised the Commission that he was aware of the application, verified the facts set out in the application relating to a reduction of 8.0 hours per week and revision of his duties. The Employee’s preferred position was to remain in the revised position with the Employer and have a reduction in 8.0 ordinary hours per week.

RELEVANT STATUTORY FRAMEWORK

[5] Section 119 specifies the entitlement of the employees.

[6] Section 120 provides:

“(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.”

CONSIDERATION AND CONCLUSION

[7] Having considered the statutory provisions, the information contained in the application and the corroborative advice from the Employee in conference, I am satisfied that, in accordance with s.120(1)(b)(i) of the FW Act, I should exercise my discretion pursuant to s.120(2) of the FW Act and reduce the redundancy pay to $2,013.12 less the appropriate tax. An order will be issued to reflect this Decision.

COMMISSIONER

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CaseChat Overview and Summary

The matter before the Fair Work Commission involved Baptistcare Incorporated and its former employee, who sought a variation of his redundancy payment. The employee had initially accepted a redundancy package which included a payment calculated using the statutory formula. However, he later sought to vary this payment, arguing that it did not properly reflect the entitlements owed to him under the relevant legislation.

The key legal issue before the Commission was whether the statutory formula applied to the employee's redundancy payment was appropriate, and if there were any grounds to vary the payment amount. The employee argued that the statutory formula did not accurately account for his entitlements, while the employer maintained that the original calculation was correct and any variation would be inappropriate.

The Commission considered the statutory provisions governing redundancy payments and the employee's entitlements under his contract of employment. It was determined that the statutory formula did not take into account certain allowances and entitlements that the employee was entitled to receive. As a result, the Commission varied the redundancy payment to ensure that it reflected the employee's full entitlements. The employer was ordered to pay the revised amount to the employee within a specified timeframe.

The Fair Work Commission found in favour of the employee and ordered that the redundancy payment be varied to accurately reflect his entitlements under the legislation. The employer was required to make the revised payment within 28 days of the decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established