Bower and Secretary, Attorney-General's Department

The applicant sought review of a decision by the Respondent regarding a claim for an advance under the Fair Entitlements Guarantee Act 2012 (FEG Act) for redundancy pay. The applicant had been employed by Delux Freight Pty Ltd, then Deluxe Freight Operations Pty Ltd, and finally Ontime Management Services Pty Ltd, part of the Ontime Group. The Ontime Group companies, including Ontime Management, had a total of fewer than 15 employees at the time the applicant received notice of termination and when her employment ceased.

The central legal issue before the court was whether the applicant was entitled to an advance under the FEG Act for redundancy pay, given that her employer and the broader group were considered small business employers at the relevant time. This required determining the meaning of "immediately" in section 121(1) of the FEG Act, which defines when an employer is considered a small business employer for the purposes of redundancy pay entitlements.

The court reasoned that the applicant's employer, Ontime Management, and the Ontime Group, had fewer than 15 employees on 16 July 2019, the date the applicant was given notice of termination, and on 19 July 2019, when her employment ceased. The court found that the definition of a "small business employer" applied to both the company that employed the applicant and the Ontime Group as a whole. The court declined to interpret the word "immediately" in section 121(1) to extend back to the earlier dates when other employees' terminations were communicated, concluding that such an interpretation would be a step too far. The court noted that the applicant's generosity in agreeing to continue working for an extra week, to assist her employer, inadvertently caused her to miss out on an entitlement she would otherwise have had.

The decision under review was affirmed.