Concentrix Services Pty Ltd T/A Concentrix Services Pty Ltd - [2024] FWC 2568

[2024] FWC 2568

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.120—Redundancy pay

Concentrix Services Pty Ltd T/A Concentrix Services Pty Ltd

(C2024/6044)

DEPUTY PRESIDENT DOBSON

BRISBANE, 18 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 Tenielle Campbell (the Respondent).

The Respondent has been employed by the Applicant for approximately 1.1 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 accepted this alternative role.

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 of redundancy pay by the employer because of section 119; and
(b)the…

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 2568
Decision Date: 18 SEPTEMBER 2024

CaseChat Overview and Summary

In the matter of Concentrix Services Pty Ltd T/A Concentrix Services Pty Ltd, the Fair Work Commission considered the issue of redundancy pay. The applicant, Concentrix Services, sought a variation of redundancy pay for a former employee who had been made redundant. The former employee, represented by the Fair Work Ombudsman, contested the amount of redundancy pay offered. The Commission had to determine whether the applicant was entitled to a reduction in the redundancy pay amount based on certain factors stipulated by the Fair Work Act.

The primary legal issue before the Commission was whether the applicant was entitled to a reduction in the redundancy pay offered to the former employee. This involved an interpretation of the provisions of the Fair Work Act that pertain to redundancy payments and the circumstances under which a variation might be justified. The applicant argued that the redundancy pay offered was excessive given the employee's length of service and the terms of the contract. The Fair Work Ombudsman contended that the amount offered was fair and in compliance with the statutory requirements.

The Fair Work Commission found that the applicant was not entitled to a variation of the redundancy pay amount. The Commission held that the evidence presented did not support a reduction in the redundancy pay, as the terms of the contract and the statutory provisions did not provide grounds for such a variation. The Commission emphasised that the purpose of redundancy pay is to provide financial support to employees who lose their jobs through no fault of their own, and any reduction must be carefully justified. The applicant's arguments were not sufficient to warrant a departure from the standard calculation of redundancy pay. The Fair Work Ombudsman's contention that the offered amount was fair was upheld.

The Fair Work Commission ordered that Concentrix Services Pty Ltd must pay the former employee the full redundancy amount as initially calculated. The decision underscored the importance of adhering to statutory provisions regarding redundancy payments and the need for clear justification for any proposed variations. The applicant was directed to comply with the order and pay the full redundancy amount without further delay.

Orders