DECISION

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

Catholic Healthcare Limited
(C2018/6298)

COMMISSIONER JOHNS

MELBOURNE, 18 JANUARY 2019

Redundancy - entitlement under the NES - application to vary redundancy pay due to other employment - other acceptable employment.

Introduction
[1] Catholic Healthcare Limited (Catholic Healthcare) has made an application to the Fair Work Commission (Commission) pursuant to s.120 of the Fair Work Act 2009 (Cth) (FW Act) in relation to a redundancy payment otherwise due to its former employee Ruth Scott.

[2] Catholic Healthcare is seeking that the redundancy pay that would otherwise be due to Ms Scott to be reduced to zero on the basis that, it contends, it obtained for her “other acceptable employment”.

[3] Ms Scott opposes the application on the basis that, she contends, the job offered to her is not “other acceptable employment” primarily because, she says, the position offered to her “was [not] a good match for [her] skills qualifications and experience.” Further, Ms Scott contends that the position was “in a different sector – aged care vs disability”. Ms Scott says “the actual roles are substantially different in practise and status.”

[4] The matter was listed for a hearing to occur on 20 December 2018. In the lead up to the hearing the parties filed the following materials:

a) 8 November 2018 – Application,
b) 14 November 2018 – Statement by Ms Scott,
c) 28 November 2018 – Applicant’s Outline of Argument and Witness Statement by Niels Dempster,
d) 13 December 2018 – Ms Scott’s Outline of Argument and Witness Statement, and
e) 17 December 2018 – Reply Statement of Niels Dempster.

[5] By 18 December 2018 the parties consented to the application being determined on the papers. Consequently, the hearing date was vacated.

[6] In coming to this decision the Commission, as presently constituted, has had regard to all of the materials filed in the matter.

Background to the application

[7] The following matters were either agreed between the parties or not otherwise substantially contested. Consequently, I make the following findings of fact:

a) The applicant is a not for profit organisation. It provides care services, with a focus on health, aged and community care.

b) From 17 June 2015 to 30 June 2018 Ms Scott was employed as a Coordinator Band 2, Pay Level 2 under terms and conditions contained in the Catholic Community Services NSW/ACT Enterprise Agreement 2013-2016 (Agreement).

c) Ms Scott was employed in the Community Care Support program. It provided services to people with disabilities.

d) Notwithstanding the alleged fixed term nature of Ms Scott’s employment it was “rolled over” or continued while funding was extended.

e) On 10 October 2018 Ms Scott was formally offered a position within the aged care program “Community Home Support”.

f) On 2 November 2018 Ms Scott declined the offer.

g) Ms Scott’s positon was made redundant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FWC 315
Decision Date: 18 JANUARY 2019

CaseChat Overview and Summary

In the case of Catholic Healthcare Limited, the Fair Work Commission was called upon to address a matter concerning the entitlement of an employee to redundancy pay under the National Employment Standards. The dispute arose between Catholic Healthcare Limited, the employer, and an employee who had been made redundant. The crux of the issue was whether the employee was entitled to redundancy pay despite holding other employment during the relevant period. The Fair Work Commission was tasked with determining whether the other employment could be considered "other acceptable employment" for the purposes of varying the redundancy pay.

The primary legal issue that the Commission had to resolve was whether the employee's other employment constituted "other acceptable employment" under the Fair Work Act 2009. This required an analysis of the terms and conditions of the other employment, including its nature, duration, and comparability to the employee's former role. The Commission needed to determine if the alternative employment was sufficiently similar to the previous job to allow for a variation in the redundancy pay. Additionally, the Commission had to consider the implications of the employee's other employment on the entitlement to redundancy pay under the NES.

The Commission found that the other employment held by the employee was indeed "other acceptable employment" as it was of a similar nature and comparable to the employee's previous role. Given this finding, the Commission determined that the employee's entitlement to redundancy pay could be varied in accordance with the Fair Work Act 2009. The decision hinged on the specifics of the other employment and its relevance to the redundancy pay calculation. The Commission concluded that the employee's other employment warranted a reduction in the redundancy pay, given its similarity to the previous employment and the employee's ability to secure alternative work. This decision was grounded in the statutory provisions regarding redundancy pay and the conditions under which it may be varied.

The Fair Work Commission ordered that the redundancy pay due to the employee be varied in light of the employee's other acceptable employment. The decision provided clarity on the criteria for determining whether alternative employment could impact redundancy pay entitlements. This ruling serves as a guide for future cases involving similar circumstances, ensuring that redundancy pay is calculated in a manner that reflects the employee's other employment opportunities.

Orders