BOS Surveying Pty Ltd T/A Survey Results (Ms Kate Moore)

[2017] FWC 3838

[2017] FWC 3838

FAIR WORK COMMISSION

DECISION

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

BOS Surveying Pty Ltd T/A Survey Results

(Ms Kate Moore)

(C2017/2676)

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 Ms Kate Moore (Ms Moore) be reduced from 7 weeks of Mrs Moore’s ordinary base rate of pay to nil (Application). The Application has been made on the grounds that Survey Results does not have the financial capacity to pay the redundancy entitlements due to Ms Moore.

[1] 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.”

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

[3] The Directions provided that, if Ms Moore did not consent to the making of the Order, Survey Results were required to file in the FWC and serve on Ms Moore 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)

[4] The Directions also directed Survey Results to file in the FWC and serve on Ms Moore, 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)

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

[6] On 27 June 2017, Ms Moore contacted Chambers by telephone and advised that she objected to the making of the Order. She subsequently confirmed her objection in writing, copied to both Chambers and Survey Directions.

[7] On 11 July 2017, Survey Results were reminded that they were required, in light of Ms Moore’s objection, to file and serve the Incapacity Data and the Merit Materials by the dates specified in the Directions.

[8] 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.

[9] 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.

[10] Based on the materials which are before me, I am not satisfied that Survey Results cannot pay the amount of redundancy pay due to Ms Moore. The Application is therefore dismissed.

[11] An order to this effect (PR594739) will be issued accordingly.

DEPUTY PRESIDENT

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<Price code A, PR594736>