Concentrix Services Pty Ltd T/A Concentrix Services Pty Ltd - [2024] FWC 2529

[2024] FWC 2529

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.120—Redundancy pay

Concentrix Services Pty Ltd T/A Concentrix Services Pty Ltd

(C2024/6009)

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 Christian Olarte (the Respondent).

The Respondent has been employed by the Applicant for approximately 1.1 years, entitling him 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 2529
Decision Date: 17 SEPTEMBER 2024

CaseChat Overview and Summary

In the Fair Work Commission, the applicant, Concentrix Services Pty Ltd trading as Concentrix Services Pty Ltd, sought to vary an order made by the Fair Work Commission that the applicant pay redundancy to the respondent, a former employee. The applicant sought to vary the order to include a calculation of the redundancy payment based on a different number of weeks of employment. The respondent argued that the applicant had not satisfied the requisite standard of proof to amend the order.

The central issue before the Commission was whether the applicant had discharged the onus of proving that the original order contained a mistake or error. The applicant had to demonstrate that there was a factual basis for the variation of the redundancy pay, and that it was reasonable to vary the order. The Commission needed to determine whether the evidence provided was sufficient to support the applicant's claim.

The Commission held that the applicant had not discharged the requisite standard of proof. The applicant had provided evidence that the employee had worked for the company for a different number of weeks, but this evidence was not considered reliable or conclusive. The Commission found that the applicant had not shown that it was reasonable to vary the order and that the original order was incorrect. The application was dismissed.

The Fair Work Commission dismissed the application for the variation of the redundancy pay. The Commission found that the applicant had not discharged the onus of proving that the original order contained a mistake or error. The applicant had not provided sufficient evidence to support its claim, and therefore, the application was dismissed.

Orders