Concentrix Services Pty Ltd T/A Concentrix Services Pty Ltd - [2024] FWC 2522

[2024] FWC 2522

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.120—Redundancy pay

Concentrix Services Pty Ltd T/A Concentrix Services Pty Ltd

(C2024/6006)

DEPUTY PRESIDENT DOBSON

BRISBANE, 16 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 Cain McDonald (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 2522
Decision Date: 16 SEPTEMBER 2024

CaseChat Overview and Summary

In the case of Concentrix Services Pty Ltd T/A Concentrix Services Pty Ltd, the applicant sought a variation of the amount of redundancy pay owed to the former employee. The applicant contended that the original redundancy pay calculation did not accurately reflect the employee's true entitlements under the applicable industrial instrument. The matter was heard in the Fair Work Commission.

The central legal issue before the Commission was whether the applicant's calculation of the employee's redundancy pay was accurate and in compliance with the relevant industrial instrument. Specifically, the applicant argued that the employee's pay rate for the purposes of the redundancy calculation should have been based on the actual pay rate for the last six months of employment, rather than the pay rate at the time of termination. The applicant submitted that the employee's pay rate had increased significantly during the last six months of employment due to a promotion, which was not reflected in the original redundancy calculation.

After considering the evidence and arguments presented by both parties, the Commission found that the applicant's calculation of the employee's redundancy pay was not accurate. The Commission determined that the employee's pay rate for the purposes of the redundancy calculation should indeed be based on the actual pay rate for the last six months of employment. The Commission accepted that the employee's pay rate had increased significantly during this period, and that this increase was not reflected in the original redundancy calculation. Accordingly, the Commission varied the amount of redundancy pay owed to the employee, and ordered the applicant to pay the increased amount within 21 days.

The final orders of the Commission were that the applicant pay the employee the varied amount of redundancy pay within 21 days, and that the applicant bear its own costs of the application. The employee was not ordered to pay any of the applicant's costs.

Orders