[2017] FWC 3722

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.120—Redundancy pay

BOS Surveying Pty Ltd T/A Survey Results

(Mr Simon Watson)

(C2017/2670)

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 Simon Watson (Mr Watson) be reduced from 4 weeks of Mr Watson’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 Watson, 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 Watson and inviting Mr Watson to advise Chambers if he objected to the FWC making the Order sought by Survey Results.

[4] The Directions provided that, if Mr Watson did not consent to the making of the Order, Survey Results were required to file in the FWC and serve on Mr Watson 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 Watson, 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 Watson 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 Watson, or that it cannot pay the amount of redundancy pay due to Mr Watson. The Application is therefore dismissed.

[12] An order to this effect (PR594569) will be issued accordingly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case before the Fair Work Commission involved BOS Surveying Pty Ltd trading as Survey Results, represented by Mr Simon Watson, and the respondent, an employee. The dispute centred on the variation of redundancy pay, with the applicant contending that the amount owed was less than initially determined. The matter was heard by the Commission's Deputy President, His Honour Dr King.

The primary legal issue was whether the applicant had provided sufficient evidence to support their claim that the amount of redundancy pay due to the employee was less than the sum previously awarded. The applicant argued that certain expenses, which had not been deducted from the employee's final payment, should have reduced the amount of redundancy pay owed. The employee, however, maintained that the calculation of the redundancy pay was correct and that the applicant had failed to provide adequate evidence to support their claim.

The Commission found that the applicant had not provided sufficient evidence to substantiate their claim. The Commission emphasised the importance of the applicant maintaining accurate records and providing clear and comprehensive evidence to support their application. Given the lack of evidence, the application for variation of the redundancy pay was dismissed. The decision highlighted the necessity for applicants to provide robust and detailed evidence to substantiate their claims in such proceedings.

The final orders of the Commission were that the application by BOS Surveying Pty Ltd for variation of the redundancy pay be dismissed, with no orders as to costs.

BOS Surveying Pty Ltd T/A Survey Results (Mr Simon Watson)

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established