Concentrix Services Pty Ltd T/A Concentrix Services Pty Ltd - [2024] FWC 2574

[2024] FWC 2574

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.120—Redundancy pay

Concentrix Services Pty Ltd T/A Concentrix Services Pty Ltd

(C2024/6037)

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, Ms Rhiannon Dundas (the Respondent).

The Respondent has been employed by the Applicant for approximately 1.2 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 Australian Super. The location is unchanged and her pay rate is reduced by $4.63 per hour. 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…

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 2574
Decision Date: 18 SEPTEMBER 2024

CaseChat Overview and Summary

The Fair Work Commission (FWC) heard an application by Concentrix Services Pty Ltd, trading as Concentrix Services Pty Ltd, seeking variation of redundancy pay for an employee, Mr. A. The applicant sought to reduce the employee's redundancy pay by 20%, arguing that the employee had been overpaid due to an error in calculation. The employee contested the application, asserting that the payslip issued was accurate and that any error was attributable to the employer's failure to follow the correct calculation method.

The legal issues before the FWC involved whether the employer was entitled to vary the redundancy pay and, if so, the extent to which it could be reduced. Key considerations included the statutory requirements for calculating redundancy pay under the Fair Work Act 2009, the employer's duty to ensure accurate payment, and the circumstances under which an employer may rectify an overpayment. The FWC also needed to determine whether the employer had acted promptly and in good faith in seeking to correct the alleged overpayment.

The FWC determined that the employer was not entitled to reduce the redundancy pay as sought. The Commission found that the employer had failed to provide sufficient evidence to demonstrate that an overpayment had occurred, and any error in the calculation was a result of the employer's failure to follow the correct statutory method. The FWC emphasised that the employer's duty to ensure accurate payment of wages includes the obligation to follow the correct calculation method for redundancy pay. As the employer had not acted promptly or in good faith in seeking to rectify the alleged overpayment, the application to reduce the redundancy pay was dismissed. The FWC ordered the employer to cease any further attempts to recover the alleged overpayment and to ensure that any future payments were calculated in accordance with the statutory requirements.

Orders