Concentrix Services Pty Ltd
[2022] FWC 724
| [2022] FWC 724 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.120 - Application to vary redundancy pay for other employment or incapacity to pay
Concentrix Services Pty Ltd
(C2022/1073)
| DEPUTY PRESIDENT LAKE | BRISBANE, 31 MARCH 2022 |
Variation of redundancy pay
Concentrix Services Pty Ltd (Concentrix / 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 to nil the redundancy entitlement of Mr Jonah Calipaya (Mr Calipaya). Mr Calipaya was employed by the Applicant as a Data Handling and Processing Agent.
The Applicant provided services to a Banking Client. The banking client informed the Applicant on 11 January 2022 that its services would no longer be utilised. The Applicant thereby commenced a redeployment and redundancy process.
Mr Calipaya commenced employment with the Applicant on 28 July 2020 engaged as a Data Handling and Processing Agent. His employment ended on 11 February 2022. The Applicant advised that Mr Calipaya would be entitled to 4 weeks of redundancy pay, as per the national employment standards, if his redundancy was to be paid in full.
The Application
The application to vary the Mr Calipaya’s redundancy pay to nil was on the basis that the Applicant provided him with acceptable alternative employment.
I held a conference to see if a resolution could be reached between the parties. The Respondent did not attend nor provide an explanation. As the matter did not resolve, each party was given an opportunity to make submissions both in writing and at the hearing.
Despite being notified on 16 March 2022 of the Hearing for the matter to be heard on 21 March 2022, Mr Calipaya did not make any submissions or appear at the Hearing nor sought an adjournment.
The matters for determination are whether the Applicant provided other acceptable work and if so, whether the Commission exercise discretion to vary the redundancy. If a variation is appropriate, I must determine to what extent the redundancy should be varied.
Relevant Legislation
Section 119(1)(a) of the Act relevantly provides that an employee is entitled to be paid redundancy pay by the employer if the employee’s employment is terminated 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. The section goes on to provide for the amount payable to an employee who is made redundant, which is dependent on their length of continuous service.
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)).
Submissions and evidence
I held a joint hearing of the matter along with two other similar applications made by the Applicant on 21 March 2022. At the hearing, the Applicant was represented by Ms Judith Fletcher, People Solution. As advised before, Mr Calipaya did not attend the Hearing nor provide any advice to my Chambers as to her unavailability or sought an adjournment.
The Applicant submitted that Mr Calipaya was employed by the Applicant from 28 July 2020 to 11 February 2022 as a Data Handling and Processing Agent. Mr Calipaya was paid $25.63 per hour, providing services for a banking client.
The Applicant submitted that with the announcement by the banking client that work would cease, the Applicant looked at all available options for redeployment both within Concentrix and externally with clients of the Applicant. Two possible roles were identified with Origin Energy (Origin), a client of the Applicant being:
· Employees remain with Concentrix for 6 months earning the same pay rate, but performing work for Origin either by working from home or at an Origin site. At the end of 6 months, there would be an opportunity for full time work with Origin or redeployment with Concentrix.
· The roles would be available directly with Origin where Concentrix employees would be given an advantage in the recruitment process. Concentrix employees would be given a unique link to apply so Origin would know the candidate was from Concentrix and this would ensure they were scheduled for an interview.
On 28 January 2022, Origin completed an information session at the Concentrix Robina site to outline the roles, answer any questions and provide information on how to apply. 45 employees expressed an interest in working for Origin. The advice to the Concentrix leadership team was that where Concentrix had identified the roles available with Origin and facilitated the process to apply and participate in the selection process, Concentrix would apply to waiver the redundancy payment.
The Applicant submitted that Origin made the decision not to continue with Concentrix employees service delivery model and all roles would be direct with Origin at the Origin rate of pay of $66,000 plus super.
The Applicant stated that an interview was scheduled between Mr Calipaya and Origin for 1 February 2022. The Applicant had facilitated the interview and Mr Calipaya was notified of her interview time. The interview took approximately 15 to 20 minutes. Mr Calipaya was ultimately successful in the recruitment process and was offered a role with Origin commencing on 14 February 2022. Mr Calipaya ultimately made the personal decision to defer his commencement with Origin until 28 February 2022.
Consideration
In determining an application made pursuant to s.120 of the Act, the Commission must first be satisfied that there is an entitlement to redundancy pay.[1] Where there is no entitlement to redundancy pay under s.119 of the Act, there can be no order to reduce the entitlement.[2]
It was not in dispute that the Respondent was entitled to be paid 4 weeks’ redundancy pay on his period of employment, as his job had been made redundant. I am satisfied that the Respondent has an entitlement to redundancy pay pursuant to s.119 of the Act.
The matter turns on whether the Applicant had obtained other acceptable employment for the Respondent.
In determining this application, I must consider the following questions: did the Applicant obtain the employment with Origin; and was that employment other acceptable employment?
If I am satisfied that the answer to these questions is yes, I must consider whether to vary the entitlement to redundancy and, if so, by how much.
The meaning of “obtains”
In FBIS International Protective Services (Aust) Pty Ltd v Maritime Union of Australia[3] the Full Court of the Federal Court considered what is required by the term “obtains”, within the meaning of s.120(b)(i). It was held:
“20. With respect to the Full Bench’s reliance on the Shorter Oxford, the present might be one of those rare occasions on which it is useful to refer to the corresponding full entry in the Oxford English Dictionary itself. Relevantly, that reads:
To come into the possession or enjoyment of (something) by one’s own effort, or by request; to procure or gain, as the result of purpose and effort; hence, generally, to acquire, get.
We would not regard the references to “effort”, and to “purpose and effort” in this meaning as implying the existence of some kind, much less a strong kind, of “moving force” in bringing about the new state of possession referred to. They imply, rather, that the possession must be the result of the conscious, intended, acts of the person concerned, as distinct from, for example, coming into possession of something by gift or inheritance. Moreover, we cannot perceive any reason why what is described as the “general” connotation of the word – “to acquire, get” – should not be regarded as a perfect fit for the purposes sought to be achieved by the relevant provision in the standard award clause before this provision became the subject of legislation.”
In Australian Commercial Catering Pty Ltd v Marcelia Powell and Maria Togia,[4] the Full Bench of the Commission, in relying on FBIS, stated, “…[t]he employer “obtains” other acceptable employment when it acquires or gets the employment by its conscious, intended acts.”[5]
In relation to the Employer securing ‘other acceptable employment’ at the relevant time DP Colman stated in Electricity Wizard Pty Ltd v Pasilika v Tauiliili:[6]
“In my view, for an employer to avail itself of s.120, the other acceptable employment must be ‘obtained’ and offered to the employee while she or he is still employed by that employer. The section speaks of an employer obtaining other acceptable employment for the employee. This cannot occur once the relevant employment relationship has come to an end. In the present case, the other employment was not obtained until after Mr Tauiliili’s employment with Electricity Wizard ended.”
The meaning of “other acceptable employment”
I must also consider whether the offer by the Applicant was on terms and conditions no less favourable than the terms and conditions that the Applicant experienced prior to the restructure.
The proposed roles do not have to be identical and in considering this the Commission must determine the matter objectively weighing up aspects of the role that include duties, conditions, pay level and location to mention some of them.
Relevant to this point in Derole Nominees, [7] the Full Bench of the Australian Industrial Relations Commission (AIRC) found:
“What constitutes “acceptable alternative employment” is a matter to be determined, as we have said, on an objective basis. Alternative employment accepted by the employee (and its corollary, alternative employment acceptable to the employee) cannot be an appropriate application of the words because that meaning would give an employee an unreasonable and uncontrollable opportunity to reject the new employment in order to receive redundancy pay; the exemption provision would be without practical effect.
Yet, the use of the qualification “acceptable” is a clear indication that it is not any employment which complies but that which meets the relevant standard. In our opinion there are obvious elements of such a standard including the work being of like nature; the location being not unreasonably distant; the pay arrangements complying with award requirements. There will probably be others.”
A further explanation on this point was put forward by in Von Bibra Robina Autovillage Pty Ltd by Richards SDP, who adopted the principles in Derole Nominees and said:
“In contrast, the objective test of acceptability appears to be that the alternative work bears a sufficient comparability to the original work and is not unreasonably removed from the employee’s original duties, skills set, qualifications, experience and other terms and conditions of employment. The test is not whether or not the employee is capable of carrying out the new employment as such, it is whether there is sufficient correlation between the relevant indicia of the current work and the alternative employment as proposed.”[8]
Conclusion
The Applicants submissions and evidence were not contested, and the Respondent did not file any evidence nor attended. In this matter I have accepted the evidence and testimony provided by Ms Judith Fletcher.
The Applicant clearly identified the opportunity and facilitated the recruitment of the Respondent with Origin. In this case the Applicant ‘obtained’ the work. Further the work I regard as acceptable alternative work.
Accordingly, I consider that I should exercise my discretion to reduce Mr Calipaya’s redundancy pay. I order that Mr Calipaya receive a reduced amount to reflect that the Applicant did obtain alternative work for the Respondent.
Therefore, I order that Mr Calipaya’s redundancy entitlement be reduced to nil.
DEPUTY PRESIDENT
[1] Application by CAE Australia Pty Ltd [2012] FWA 7992 at [13]
[2] Ibid
[3] [2015] FCAFC 90
[4] [2016] FWCFB 5467
[5] Ibid at [37]
[6] [2018] FWC 4556 at [24]
[7] (1990) 140 IR 123
[8] Von Bibra Robina Autovillage Pty Ltd [2007] AIRC 397
Printed by authority of the Commonwealth Government Printer
<PR739902>
0
0
0