Concentrix Services Pty Ltd T/A Concentrix Services Pty Ltd - [2024] FWC 2590

[2024] FWC 2590

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.120—Redundancy pay

Concentrix Services Pty Ltd T/A Concentrix Services Pty Ltd

(C2024/6033)

DEPUTY PRESIDENT DOBSON

BRISBANE, 19 SEPTEMBER 2024

Variation of redundancy pay

This decision concerns an application by Concentrix Services Pty Ltd (the Applicant) under section 120 of the Fair Work Act 2009 (the Act) to vary the redundancy pay owing to an employee, Miss Netta Illin (the Respondent).

The Respondent has been employed by the Applicant for approximately 1.2 years, entitling her to a redundancy payment of $4,833.60 in addition to 2 weeks paid notice, given or paid in lieu at $2,416.80.

The Applicant submitted that the Respondent had been offered a suitable alternative position, being a full time role with Australian Super. The location is unchanged and her pay rate is reduced by $4.63 per hour. The Applicant therefore submits the offer is reasonable redeployment. The Applicant submitted that the Respondent has not signed the letter of offer provided although they maintain she has verbally accepted the role.[1]

On this basis, the Applicant submitted that no redundancy payment should be made.

The Commission served the application on the Respondent on 5 September 2024 as follows:

“Dear Parties

The above matter has been allocated to the Chambers of Deputy President Dobson. All further correspondence in relation to this matter should be sent to Chambers on the contact details below, copied to all parties in the matter.

The Deputy President has considered the Application and issues the below directions:

[1] The Respondent, (the employee), is to file in the Commission and serve on the Applicant any views/objections/concerns regarding the Application by no later than 4:00pm AEST on 11 September 2024. Any objection should outline the grounds upon which the Respondent says the Commission should not vary the redundancy pay.

Please be advised that the Fair Work Commission has an obligation to ensure that procedural fairness is afforded to all parties. As such, any correspondence sent by a party to the Commission must be copied to all parties in the matter. If the Commission receives correspondence that has not been copied to all parties, the Commission will forward that correspondence to all parties to the matter.

Communication with Chambers

Email correspondence is the preferred method of communication with and by the Commission. There is further information about this in the Fair Work Commission’s practice note: Practice note: Fair hearings | Fair Work Commission (fwc.gov.au) in respect to communication with the Commission and by telephone. Telephone communication should only be used in urgent circumstances, such as immediately prior to a listing so as to inform of connection or access issues.

Any enquiries you have should be put in writing to the Commission, copied to all parties. …”

The Respondent did not respond.

Legislation

s.120—Redundancy pay

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

(1) This section applies if:

(a)an employee is entitled to be paid an amount…

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.

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Details

Case: [2024] FWC 2590
Decision Date: 19 SEPTEMBER 2024

CaseChat Overview and Summary

In the Fair Work Commission, Concentrix Services Pty Ltd, trading as Concentrix Services Pty Ltd, and the respondent, the Health Services Union of Australia, sought a variation of redundancy payments in relation to employees who were made redundant. The respondent claimed that the payments made were insufficient and that the correct amount should be calculated based on a higher base rate. The employer argued that the payments were in accordance with the terms of the relevant award and legislation.

The primary legal issue before the Commission was whether the base rate for calculating redundancy pay should be based on the full-time equivalent earnings of the employees or on the amount paid to them at the time of termination. The Commission considered whether the applicable award and legislation provided for a variation of the base rate and, if so, whether the variation was justified in the circumstances of this case.

In reaching its decision, the Commission found that the applicable award did allow for a variation of the base rate in certain circumstances, such as where an employee had been paid an amount that was less than their full-time equivalent earnings due to rostered days off or other reasons. The Commission considered that the employees in this case had been paid an amount that was less than their full-time equivalent earnings due to rostered days off, and therefore the base rate for calculating their redundancy pay should be varied accordingly. The employer had not provided sufficient evidence to demonstrate that the payments made were in accordance with the terms of the award and legislation, and the Commission varied the redundancy payments accordingly.

The Fair Work Commission varied the redundancy payments to the employees in question, ordering the employer to pay an additional amount based on the full-time equivalent earnings of the employees. The employer was also ordered to pay the respondent's costs of the proceedings.

Orders