Concentrix Services Pty Ltd T/A Concentrix Services Pty Ltd
[2024] FWC 2578
•19 SEPTEMBER 2024
| [2024] FWC 2578 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.120—Redundancy pay
Concentrix Services Pty Ltd T/A Concentrix Services Pty Ltd
(C2024/6026)
| DEPUTY PRESIDENT DOBSON | BRISBANE, 19 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 Lily O’Grady (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 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 not signed the letter of offer provided although they maintain she has verbally accepted the role.[1]
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 employer:
i.obtains other acceptable employment for the employee; or
ii.cannot pay the amount.
(2) On application by the employer, the FWC may determine that the amount of redundancy pay is reduced to a specified amount (which may be nil) that the FWC considers appropriate.
(3) The amount of redundancy pay to which the employee is entitled under section 119 is the reduced amount specified in the determination.”
Case Law
Whilst the legislation does not set out the detailed basis for determining whether alternative employment is acceptable, the authorities set out that the issues must be assessed on an objective assessment of the factors.[2] Having considered other cases dealt with by the Commission,[3] I believe this can been defined as a two-part assessment.
Part 1: The Role of the Employer in finding the Alternative Employment
This involves an objective assessment of the Applicant’s role in finding the alternative role of the Respondent. The Commission has previously reduced the severance payment amount by 50% where the Applicant was able to show that it made considerable efforts in helping their redundant employees obtain alternative employment.[4] It has also been found that the Applicant must be a strong moving force towards the creation of the available opportunity.[5] In Hunt Energy and Mincer Co Australia Pty Ltd v Thomas,[6] the Commission held that while the employer had assisted the employee to obtain alternative employment, they had not themselves obtained the role and so there was no basis to consider a reduction in the redundancy payment obligation.[7]
Part 2: Suitable Alternate Employment
The Commission should have regard to factors including the nature of the work, pay, working hours, skills, duties, seniority and location of the work[8] as compared to the role held by the Respondent employee prior to being made redundant. Note the altered role and the reduced compensation I accept that the Respondent did not in this instance, find the role a suitable alternate role and as a consequence chose not to accept it.
Consideration
I note that the Respondent did not make any submissions in respect of this Application and on that basis I consider that the Respondent does not disagree with the submissions made by the Applicant in support of this application.
On the basis of the assertion by the Applicant that the Applicant offered the alternative employment[9] however the Respondent declined that offer[10] and the lack of any objection from the Respondent pursuant to my directions of 5 September 2024 as set out at paragraph [5], I am satisfied that the Applicant was responsible itself for the availability of the alternative employment to the Respondent.
I have determined that there is no basis for making an order for the reduction of redundancy payments in circumstances where the employee has not accepted the redeployment position offered. Given the change in the nature of the role and the remuneration, I do not consider the refusal to unreasonable. The Application is dismissed.
DEPUTY PRESIDENT
[1] Digital Court Book (DCB) pp.121-122 at [2.2].
[2] Clothing and Allied Trades Union of Australia v Hot Tuna Pty Ltd (1988) 27 IR 226.
[3] Vicstaff Pty Ltd (t/as Stratco) v May (2010) 204 IR 233; [2010] FWA 3141; See also Central Norseman Gold Corporation Ltd v Kempton (2010) 206 IR 1; [2010] FWA 5316; See also UXC Connect v Moore[2012] FWA 4296.
[4] Baywood Products Pty Ltd v Inall[2010] FWA 9303 (at [28]; See also Aztec Steel Pty Ltd v Gaden[2011] FWA 42 (at [22].
[5] Derole Nominees Pty Ltd and The Australian Chamber of Manufactures (1990) 140 IR 123 at 128.
[6] (2012) 226 IR; [2012] FWA 7845.
[7] Ibid.
[8] Ibid.
[9] C2024/6026 Form 45A Application to Vary Redundancy Pay at [1.5] and [2.1].
[10] DCB pp.[85]-[86].
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