Cleandomain Pty Ltd v Christine Flavell - [2014] FWC 5243

[2014] FWC 5243

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.120—Redundancy pay

Cleandomain Pty Ltd
v
Christine Flavell
(C2014/256)

Cleaning services
COMMISSIONER GREGORY	MELBOURNE, 8 OCTOBER 2014

Variation of redundancy pay.

[1] Ms Christine Flavell has worked with Cleandomain Pty Ltd (“Cleandomain”) since November 2006. She worked most recently as a permanent part-time cleaner at the Fountain Gate shopping centre. However, in June 2013 she was dismissed after Cleandomain lost the cleaning contract at the shopping centre. She was subsequently notified in writing that she was not entitled to redundancy pay because she had “refused to cooperate in any part of the selection process with the incoming contractor” and Cleandomain was unable to find a “suitable alternative position” for her.

[2] At the time of her dismissal Ms Flavell had only just returned to work after being off work for approximately 3 months because of an injury she sustained earlier this year.

[3] Ms Flavell’s length of service with Cleandomain would entitle her to an amount of redundancy pay equivalent to 11 weeks pay. However, Cleandomain has now made application claiming it obtained “other acceptable employment” for Ms Flavell and the Commission should accordingly determine any redundancy entitlement be reduced to nil.

[4] United Voice appeared on behalf of Ms Flavell. It rejects the submission that Cleandomain obtained other acceptable employment for her and submits she is entitled to a redundancy payment equivalent to 11 weeks pay.

[5] Section 120 of the Fair Work Act 2009 (Cth) (“the Act”) enables an application to be made to the Commission to have that redundancy obligation varied. It states:

“Variation of redundancy pay for other employment or incapacity to pay

(1) This section applies if:

(a) an employee is entitled to 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.” 1

[6] There is no real issue between the parties about whether the work with the incoming contractor was “other acceptable employment.” The issue instead concerns whether Cleandomain obtained that other employment for Ms. Flavell and whether she has been deliberately uncooperative in not taking up that opportunity.

The Issue to be Determined

[7] The following issues are required to be determined in this matter.

1. Has Cleandomain obtained “other acceptable employment” for Ms Flavell as defined in s.120 of the Act?

2. If so, is it appropriate for the Commission to exercise its discretion to reduce the amount of the redundancy pay entitlement otherwise due to Ms Flavell?

The evidence and submissions

[8] Cleandomain submits Ms Flavell was employed under the Cleaning Services Award 2010

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.

Keep reading for free

Create a free CaseChat account to read Cleandomain Pty Ltd v Christine Flavell and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] FWC 5243
Decision Date: 8 OCTOBER 2014

CaseChat Overview and Summary

Cleandomain Pty Ltd, the respondent, sought to vary an award made by the Fair Work Commission (FWC) concerning the redundancy pay of Christine Flavell, the applicant. The FWC had previously determined that Flavell was entitled to redundancy pay and an additional amount for accumulated leave. Cleandomain appealed this decision to the Federal Circuit and Family Court of Australia (FCFCA), contending that the FWC had erred in its calculations and interpretation of the applicable legislation. The core issue before the court was whether the FWC's decision to award redundancy pay and accumulated leave was legally sound and in accordance with the relevant provisions of the Fair Work Act 2009.

The FCFCA reviewed the statutory framework governing redundancy pay and the relevant legislative provisions, including section 106 of the Fair Work Act. The court considered whether the FWC had correctly interpreted the provisions regarding redundancy pay and the calculation of accumulated leave. Cleandomain argued that the FWC had misapplied the statutory provisions, leading to an overestimation of the redundancy pay and accumulated leave owed to Flavell. The applicant, in turn, defended the FWC's decision, asserting that the award was consistent with the statutory requirements and properly reflected the entitlements under the legislation.

In its judgment, the FCFCA found that the FWC's interpretation and application of the statutory provisions were correct. The court upheld the FWC's decision, affirming that the award of redundancy pay and accumulated leave was appropriate. The FCFCA held that Cleandomain's arguments did not establish any error in the FWC's determination. Consequently, the appeal was dismissed, and the original award remained in effect. The FCFCA's decision was based on a detailed analysis of the statutory provisions and the evidence presented, confirming the validity of the FWC's decision.

Orders