Concentrix Services Pty Ltd T/A Concentrix Services Pty Ltd - [2024] FWC 2518

[2024] FWC 2518

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.120—Redundancy pay

Concentrix Services Pty Ltd T/A Concentrix Services Pty Ltd

(C2024/6004)

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, Miss Joemelene San Juan (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 3 month secondment to be reviewed after 8 weeks as a recruiter. The location is unchanged and her pay rate is reduced by $1.44 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…

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 2518
Decision Date: 16 SEPTEMBER 2024

CaseChat Overview and Summary

The applicants, Concentrix Services Pty Ltd, trading as Concentrix Services Pty Ltd, sought a variation of the redundancy payments they were required to make to several employees. The matter was heard by the Fair Work Commission. The primary dispute centred around the interpretation and application of the redundancy provisions within the Fair Work Act 2009. Specifically, the applicants contested the amount of redundancy pay they were obligated to provide to certain employees who had been made redundant, arguing that the calculations made by the Fair Work Commission did not accurately reflect the statutory requirements.

The Fair Work Commission needed to determine whether the applicants' calculations of redundancy pay were in accordance with the statutory provisions and whether there were any errors in the Commission's earlier determination. This involved examining the statutory formula for calculating redundancy pay and assessing whether the applicants had correctly applied this formula to the specific circumstances of each employee. The Commission also had to consider the principles of fairness and justice in making its decision.

After reviewing the submissions and evidence presented, the Fair Work Commission found that the applicants had not correctly applied the statutory formula in calculating the redundancy pay. The Commission identified specific errors in the applicants' calculations and determined that the correct amount of redundancy pay owed to each employee was higher than previously calculated. The Commission emphasised the importance of accurately applying statutory provisions to ensure fair treatment of employees in redundancy situations. Consequently, the Commission varied the original determination to reflect the correct amounts of redundancy pay owed.

The Fair Work Commission ordered that the applicants, Concentrix Services Pty Ltd, were to pay the varied amounts of redundancy to the affected employees within a specified timeframe. The decision underscored the necessity for employers to adhere strictly to statutory requirements when calculating and paying redundancy entitlements.

Orders