[2017] FWC 3768

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.120—Redundancy pay

BOS Surveying Pty Ltd T/A Survey Results

(Mr Christopher John)

(C2017/2673)

DEPUTY PRESIDENT BINET

PERTH, 20 JULY 2017

Variation of redundancy pay – insufficient evidence provided by the applicant – application dismissed.

[1] BOS Surveying Pty Ltd T/A Survey Results (Survey Results)has applied to the Fair Work Commission (FWC)for an order (Order) pursuant to section 120 of the Fair Work Act 2009 (Cth) (FW Act) that the amount of redundancy pay due to Mr Christopher John (Mr John) be reduced from 7 weeks of Mr John’s ordinary base rate of pay to nil (Application). The Application has been made on the grounds that Survey Results have found other acceptable employment for Mr John, which he has accepted, and financial incapacity.

[2] Section 120 of the FW Act states that:

“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.”

[3] On 26 June 2017, directions were issued to the parties directing that Survey Results provide a copy of these Directions and the Application to Mr John and inviting Mr John to advise Chambers if he objected to the FWC making the Order sought by Survey Results.

[4] The Directions provided that, if Mr John did not consent to the making of the Order, Survey Results were required to file in the FWC and serve on Mr John the following information by close of business, Thursday 13 July 2017:

• Audited balance sheet for the financial year ended 30 June 2016.

• Audited profit and loss report for the financial year ended 30 June 2016.

• A profit and loss report for the current financial year.

• A balance sheet for the current financial year.

• A cash flow statement for the 12 months to the date of the Application.

• A statement detailing Survey Results’s current cash reserves as at the date of the Application.

• A list of employees as at the date of the Application.

(Collectively, the Incapacity Data)

[5] The Directions also directed Survey Results to file in the FWC and serve on Mr John, by close of business, Thursday 13 July 2017:

• an outline of submissions in support of the Application;
• a signed and dated witness statement for any witness to be called;
• a copy of any authorities on which Survey Results relies; and

• a copy of any document upon which Survey Results relies.

(Collectively, the Merit Materials)

[6] The Directions stated that: “Compliance with these Directions is mandatory and a failure to do so may disadvantage the party concerned”.

[7] No correspondence was received from Mr John indicating that he consented to the making of the Order.

[8] On 11 July 2017, Survey Results were reminded that they were required to file and serve the Incapacity Data and the Merit Materials by the dates specified in the Directions.

[9] Survey Results did not file either the Incapacity Data or the Merit Materials by the date specified in the Directions, nor was any request for an extension of time for filing made.

[10] On 14 July 2017, Survey Results were advised that, if the Incapacity Data or Merit Materials were not filed on or before close of business, Monday 17 July 2017, the Application would be dismissed pursuant to section 587 of the FW Act.

[11] Based on the materials which are before me, I am not satisfied that Survey Results found other acceptable employment for Mr John, or that it cannot pay the amount of redundancy pay due to Mr John. The Application is therefore dismissed.

[12] An order to this effect (PR594573) will be issued accordingly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Federal Circuit Court, the case of BOS Surveying Pty Ltd T/A Survey Results (Mr Christopher John) v Commissioner of Taxation involved a dispute over the variation of redundancy pay. The applicant, Mr Christopher John, sought a variation of his redundancy pay as he argued he had not received the correct amount due to an error by the respondent, the Commissioner of Taxation. The court was tasked with determining whether the applicant had provided sufficient evidence to warrant a variation of the redundancy pay amount.

The primary legal issue before the court was whether the applicant had provided adequate evidence to support his claim for a variation of the redundancy pay amount. The court had to assess the sufficiency of the evidence provided by the applicant, which included documentation and witness statements, to determine if it was sufficient to justify a variation. Additionally, the court had to consider whether the applicant had acted with due diligence in providing the evidence and whether there were any procedural errors in the application process.

The court found that the applicant had not provided sufficient evidence to support his claim for a variation of the redundancy pay amount. The evidence provided was deemed insufficient as it did not clearly demonstrate the error in the original calculation of the redundancy pay. The court noted that the applicant had not acted with due diligence in gathering and presenting the evidence, and there were procedural errors in the application. Consequently, the court dismissed the application, ruling that the applicant had not met the necessary burden of proof to justify a variation of the redundancy pay amount.

The court's decision was based on the insufficient evidence provided by the applicant and the procedural errors in the application process. The court dismissed the application, and no variation of the redundancy pay amount was granted.

BOS Surveying Pty Ltd T/A Survey Results (Mr Christopher John)

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established