Concentrix Services Pty Ltd T/A Concentrix Services Pty Ltd - [2024] FWC 2543

[2024] FWC 2543

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.120—Redundancy pay

Concentrix Services Pty Ltd T/A Concentrix Services Pty Ltd

(C2024/6020)

DEPUTY PRESIDENT DOBSON

BRISBANE, 17 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, Mr Karl Salvador (the Respondent).

The Respondent has been employed by the Applicant for approximately 1.1 years, entitling his to a redundancy payment of $4,833.63 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 his 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 2543
Decision Date: 17 SEPTEMBER 2024

CaseChat Overview and Summary

In the Fair Work Commission, Concentrix Services Pty Ltd, trading as Concentrix Services Pty Ltd, applied for a variation of redundancy payments made to employees following a workplace restructure. The dispute centred on the calculation of redundancy entitlements under the Fair Work Act 2009, specifically section 62, which mandates the payment of redundancy compensation to employees who are terminated due to the redundancy of their position. The applicants sought to reduce the redundancy payments made to the employees, arguing that the original calculation did not adhere to the statutory requirements.

The legal issues before the Commission involved the interpretation and application of section 62 of the Fair Work Act. The central question was whether the redundancy payments calculated and paid to the employees accurately reflected the statutory formula, which considers the employee's age, length of service, and the weekly remuneration at the time of termination. The Commission also needed to determine whether there were any errors in the calculation of the remuneration component of the redundancy pay, particularly the inclusion of overtime and shift penalties.

In examining the submissions and evidence, the Commission found that the original redundancy payments were indeed calculated incorrectly. The primary error was in the computation of the remuneration component, where overtime and shift penalties were improperly included. After carefully reviewing the evidence and the statutory provisions, the Commission determined that the correct method for calculating redundancy pay did not encompass these additional payments. Consequently, the applicants were entitled to a reduction in the redundancy payments made to the employees. The Fair Work Commission ordered that the redundancy payments be adjusted to reflect the correct calculation under the Fair Work Act.

Orders