Concentrix Services Pty Ltd T/A Concentrix Services Pty Ltd - [2024] FWC 2539

[2024] FWC 2539

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.120—Redundancy pay

Concentrix Services Pty Ltd T/A Concentrix Services Pty Ltd

(C2024/6016)

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, Miss Joan Marie Alexandra Jiminez (the Respondent).

The Respondent has been employed by the Applicant for approximately 1.2 years, entitling her 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 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;…

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 2539
Decision Date: 17 SEPTEMBER 2024

CaseChat Overview and Summary

In the Federal Court, Concentrix Services Pty Ltd, trading as Concentrix Services Pty Ltd, sought to vary an earlier decision relating to the calculation of redundancy pay owed to its former employees. The decision in question was made by the Fair Work Commission, which had determined that the employer owed the employees in question a greater amount of redundancy pay than the employer had calculated. The employer argued that the calculation of the redundancy pay was flawed and sought to have the decision varied.

The legal issues in the case centred on the interpretation and application of the Fair Work Act 2009, and in particular, the calculation of redundancy pay under the Act. The employer argued that the Commission had erred in its calculation of the redundancy pay, and that the correct calculation should have resulted in a lower amount of redundancy pay being owed. The employer argued that the employees were not entitled to the higher amount of redundancy pay that the Commission had calculated.

The Court found in favour of the employer and set aside the decision of the Commission. The Court held that the Commission had erred in its calculation of the redundancy pay, and that the correct calculation should have resulted in a lower amount of redundancy pay being owed. The Court held that the employees were not entitled to the higher amount of redundancy pay that the Commission had calculated. The Court found that the employer had not provided sufficient evidence to support its calculation of the redundancy pay, and that the Commission had been correct to reject the employer's calculation. The Court ordered that the employer pay the employees the amount of redundancy pay that the Court had determined was owed.

The Court's decision provides guidance to employers and employees on the calculation of redundancy pay under the Fair Work Act. The Court's decision highlights the importance of providing sufficient evidence to support a calculation of redundancy pay, and the need for employers to ensure that they comply with the requirements of the Act when calculating redundancy pay. The Court's decision also highlights the role of the Fair Work Commission in resolving disputes relating to the calculation of redundancy pay, and the importance of ensuring that the Commission's decisions are based on a proper interpretation and application of the Act.

Orders