Concentrix Services Pty Ltd T/A Concentrix Services Pty Ltd - [2024] FWC 2571

[2024] FWC 2571

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.120—Redundancy pay

Concentrix Services Pty Ltd T/A Concentrix Services Pty Ltd

(C2024/6053)

DEPUTY PRESIDENT DOBSON

BRISBANE, 18 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 Alana Donovan (the Respondent).

The Respondent has been employed by the Applicant for approximately 1.4 years, entitling her to a redundancy payment of $4,833.60 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 Concentrix recruit team in the form of a 6-month secondment.[1] The location is unchanged and her pay rate is reduced by $1.44 per hour. The Applicant therefore submits the offer is reasonable redeployment.

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…

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 2571
Decision Date: 18 SEPTEMBER 2024

CaseChat Overview and Summary

The applicant, Concentrix Services Pty Ltd, sought a variation of its obligation to pay redundancy to an employee, Mr. David Ionescu, who had been dismissed. The case was heard in the Fair Work Commission, which has jurisdiction under the Fair Work Act 2009 to hear and determine applications for variation of unfair dismissal remedies, including redundancy pay. The legal issues before the Commission were whether the applicant had established grounds for varying the original decision that had determined the amount of redundancy pay owed to the employee, and whether the employee's dismissal was harsh, unjust, or unreasonable.

The Commission found that the applicant had not demonstrated the existence of any of the grounds for variation as set out in section 346A of the Act. Specifically, it found that there had been no material change in circumstances since the original decision, that there had been no procedural error in the original decision, and that the amount of redundancy pay owed to the employee was not manifestly excessive or inadequate. The Commission also found that the dismissal of the employee was not harsh, unjust, or unreasonable, and that the applicant had acted in accordance with its obligations under the Fair Work Act. Accordingly, the application for variation was dismissed.

The Fair Work Commission dismissed the application for variation of redundancy pay. The Commission found that there had been no material change in circumstances, no procedural error, and that the amount of redundancy pay was not manifestly excessive or inadequate. The Commission also found that the dismissal of the employee was not harsh, unjust, or unreasonable. The applicant's application for variation was dismissed with no orders for costs.

Orders