Concentrix Services Pty Ltd

[2023] FWC 707

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.120—Redundancy pay

Concentrix Services Pty Ltd

(C2022/8487)

DEPUTY PRESIDENT LAKE

BRISBANE, 24 MARCH 2023

Variation of redundancy pay – alternative work offered – other employment found to be acceptable – redundancy varied.

Concentrix Pty Ltd (the Applicant) has applied pursuant to s.120(2) of the Fair Work Act 2009 (the Act) to have the Fair Work Commission (the Commission) reduce the redundancy entitlement of Ms Kaori Price to nil.

The Applicant has provided Ms Price a role as Advisor II, Transaction Processing in a part time capacity (20 hours per week). The Applicant states they will continue to look for other duties and tasks for Ms Price.

The Applicant has stated that Ms Price had accepted the offer of the other acceptable employment provided to her. I heard the matter on 22 March 2023 to determine any objections to the variation of redundancy. Ms Price did not raise any objections to the Application.

Section 120 confers on the Commission a discretion to reduce the amount of redundancy pay to which an employee would otherwise have been entitled under s.119 of the Act.

Section 120(1) states that the section applies if an employee is entitled to be paid an amount of redundancy pay under s.119, and the employer ‘obtains other acceptable employment’ for the employee. These are the jurisdictional facts that must be established before the Commission may exercise its discretion. Section 120(2) then states that the Commission ‘may determine that the amount of redundancy pay is reduced to a specified amount (which may be nil) that the FWC considers appropriate’. If the Commission makes an order under s.120(2), the amount of redundancy pay to which the employee is entitled is the reduced amount specified in the determination (see s.120(3)).

Conclusion

Taking into account all of the circumstances and that the Respondent did not raise objections to her new role with Concentrix, I consider that I will exercise my discretion to reduce the Respondents’ redundancy pay to zero. I Order accordingly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Concentrix Services Pty Ltd applied to the Fair Work Commission to reduce the redundancy pay of Ms Kaori Price to nil, pursuant to section 120(2) of the Fair Work Act 2009. The Applicant offered Ms Price a part-time role as an Advisor II, Transaction Processing, and stated that it would continue to look for additional duties for her. The Applicant also claimed that Ms Price had accepted the offered employment. The Deputy President of the Commission, Lake, heard the matter on 22 March 2023, to determine any objections to the variation of redundancy. Ms Price did not raise any objections to the Application.

The Deputy President identified that section 120 confers on the Commission a discretion to reduce the amount of redundancy pay to which an employee would otherwise have been entitled under section 119 of the Act. Section 120(1) states that the section applies if an employee is entitled to be paid an amount of redundancy pay under section 119, and the employer obtains other acceptable employment for the employee. Section 120(2) then states that the Commission may determine that the amount of redundancy pay is reduced to a specified amount (which may be nil) that the FWC considers appropriate. The Deputy President concluded that all jurisdictional facts were established before the Commission could exercise its discretion.

Considering all the circumstances, and that the Respondent did not raise objections to her new role with Concentrix, the Deputy President exercised the discretion to reduce the Respondent's redundancy pay to zero. The Deputy President made an order accordingly. The Deputy President did not provide any further details about the reasons for the decision or the specific circumstances of the case.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established