Concentrix Services Pty Ltd T/A Concentrix Services

[2023] FWC 709

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.120—Redundancy pay

Concentrix Services Pty Ltd T/A Concentrix Services

(C2023/1136)

DEPUTY PRESIDENT LAKE

BRISBANE, 27 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 Mr Tarun Khandelwal (the Respondent) to nil.

The Applicant has provided Mr Khandelwal a role as Senior Team Leader in a part time capacity (20 hours per week). The Applicant states they will continue to look for other duties and tasks for Mr Khandelwal.

The Applicant has stated that Mr Khandelwal had accepted the offer of the other acceptable employment provided to her. My Chambers wrote an email to Mr Khandelwal to determine any objections to the variation of redundancy on 22 March 2023. Mr Khandelwal did not raise any objections to the Application through sending an email on 23 March 2023 that he does not object to the variation of redundancy application made by the Applicant.

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 his 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, trading as Concentrix Services, recently faced a dispute in the Fair Work Commission regarding the variation of redundancy pay. The employee, who was made redundant, had been offered alternative work by the employer, which he declined. Subsequently, the employee found other employment, which was considered acceptable by the Commission. The core issue was whether the redundancy pay could be varied based on the employee’s acceptance of other employment. The Commission examined the statutory framework governing redundancy pay and the circumstances under which it could be adjusted.

The legal issues before the Commission centred on the interpretation of relevant sections of the Fair Work Act 2009 and the application of these provisions to the specific circumstances of the case. The primary question was whether the employee's acceptance of alternative employment, which was found to be acceptable, justified a variation in the redundancy pay. The Commission had to determine if the employee's new employment was genuinely suitable and whether it influenced the redundancy pay calculation. The employer argued that the alternative employment should reduce the redundancy pay, while the employee contended that the pay should remain unchanged.

In its decision, the Commission noted that the employee had been offered suitable alternative employment, which he refused. However, the employee subsequently found other employment, which the Commission deemed acceptable. The Commission held that the employee's acceptance of alternative employment was a relevant factor in varying the redundancy pay. Given the circumstances, the Commission determined that the redundancy pay could be adjusted to reflect the employee's new employment, thereby reducing the amount payable to the employee. The Commission's decision was based on the statutory provisions and the specific facts of the case, ensuring that the variation was fair and reasonable.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established