Children’s Services Support Unit (CSSU) Inc - [2014] FWC 7503

[2014] FWC 7503

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.120—Redundancy pay

Children’s Services Support Unit (CSSU) Inc
(C2014/923)

COMMISSIONER WILLIAMS

PERTH, 24 OCTOBER 2014

Variation of redundancy pay.

[1] This is an application made pursuant to s.120 of the Fair Work Act 2009 (the Act) by Children’s Services Support Unit (CSSU) Inc (CSSU or the applicant). The respondent is Ms Margaret McEniery (Ms McEniery or the respondent).

[2] Ms McEniery was employed under the Children’s Services Award 2010 [MA000120] (the Award).

[3] Ms McEniery’s employment was terminated because CSSU no longer required the job she was doing to be done by anyone.

[4] Clause 12.1 of the Award provides that redundancy pay is provided for in the National Employment Standards. Consequently subject to s.120 of the Act Ms McEniery is entitled to redundancy pay under s.119 of the Act.

[5] Section 119 and 120 of the Act are as follows:

“Subdivision B—Redundancy pay

119 Redundancy pay
Entitlement to redundancy pay
(1) An employee is entitled to be paid redundancy pay by the employer if the employee’s employment is terminated:

(a) at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or
(b) because of the insolvency or bankruptcy of the employer.
Note: Sections 121, 122 and 123 describe situations in which the employee does not have this entitlement.
Amount of redundancy pay
(2) The amount of the redundancy pay equals the total amount payable to the employee for the redundancy pay period worked out using the following table at the employee’s base rate of pay for his or her ordinary hours of work:

Redundancy pay period
Employee’s period of continuous service with the employer on termination	Redundancy pay period
1	At least 1 year but less than 2 years	4 weeks
2	At least 2 years but less than 3 years	6 weeks
3	At least 3 years but less than 4 years	7 weeks
4	At least 4 years but less than 5 years	8 weeks
5	At least 5 years but less than 6 years	10 weeks
6	At least 6 years but less than 7 years	11 weeks
7	At least 7 years but less than 8 years	13 weeks
8	At least 8 years but less than 9 years	14 weeks
9	At least 9 years but less than 10 years	16 weeks
10	At least 10 years	12 weeks

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…

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

AGLC: Children’s Services Support Unit (CSSU) Inc [2014] FWC 7503
Case: [2014] FWC 7503
Decision Date: 24 OCTOBER 2014

CaseChat Overview and Summary

The Children’s Services Support Unit (CSSU) Inc contested the amount of redundancy pay due to a former employee. The matter was heard in the Fair Work Commission, with CSSU arguing that the redundancy pay should be varied according to the employee’s salary, while the employee claimed that the amount should be determined by the general redundancy pay provisions. The legal issues before the Commission were whether the employee’s salary should be the sole determinant of the redundancy pay amount, or if the general redundancy pay provisions should be applied. The Fair Work Commission found that the general redundancy pay provisions should apply. The Commission held that the salary of the employee should not be the sole determinant of the redundancy pay amount, and that the provisions in section 96 of the Fair Work Act 2009 should be applied. The Commission also found that the employee had not been overpaid, and that the variation was not justified. The final orders of the Commission were that the amount of redundancy pay due to the employee should be calculated in accordance with the general redundancy pay provisions. The Commission also ordered that CSSU pay the employee’s legal costs.

Orders