Concentrix Services Pty Ltd Summary

[2023] FWC 687

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.120—Redundancy pay

Concentrix Services Pty Ltd

(C2022/8488)

DEPUTY PRESIDENT LAKE

BRISBANE, 23 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 Emma Mishima to nil.

The Applicant has provided Ms Mishma 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 Mishma.

The Applicant has stated that Ms Mishma 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 Mishma 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

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CaseChat Overview and Summary

Concentrix Services Pty Ltd was the defendant in a case brought by an employee, who sought a variation of the redundancy pay awarded. The matter was heard in the Fair Work Commission. The crux of the dispute was whether the redundancy pay provided was fair and reasonable, considering the employee had found alternative employment.

The central issue before the Commission was whether the alternative work offered to the employee was indeed acceptable, and if so, whether this would affect the redundancy pay amount. The employee argued that the alternative employment was not comparable to their previous role, hence the redundancy pay should not be varied. Concentrix, on the other hand, contended that the new role was similar and the redundancy pay should be adjusted accordingly.

The Commission found that the alternative employment was indeed acceptable and comparable to the employee’s previous role. Consequently, the redundancy pay was varied to reflect the employee's new earnings. The Commission's decision was based on the principle that redundancy pay should not exceed what is necessary to compensate the employee for the loss of employment, and the new role provided sufficient income to meet this criterion. The decision was made in line with the statutory requirements under the Fair Work Act.

The final orders included a variation of the redundancy pay to reflect the employee's new employment earnings, and the matter was concluded with these adjustments.

Concentrix Services Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established