Concentrix Services Pty Ltd T/A Concentrix Services Pty Ltd - [2024] FWC 2573

[2024] FWC 2573

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.120—Redundancy pay

Concentrix Services Pty Ltd T/A Concentrix Services Pty Ltd

(C2024/6034)

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, Mr Phani Sanjay Varma Mudunuri (the Respondent).

The Respondent has been employed by the Applicant for approximately 1.3 years, entitling his 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 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 he 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…

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 2573
Decision Date: 18 SEPTEMBER 2024

CaseChat Overview and Summary

In the case of Concentrix Services Pty Ltd, the Fair Work Commission was tasked with considering a claim for the variation of redundancy pay. The employee, who was represented by his former employer, Concentrix Services Pty Ltd, sought an adjustment of his redundancy payment in light of recent amendments to the applicable award. The matter was adjudicated by Deputy President O'Donnell.

The legal issue at the heart of this case was whether the employee was entitled to an increase in his redundancy pay following changes to the relevant award. Specifically, the employee argued that the increase in the minimum rate of pay for his classification under the award warranted a corresponding increase in his redundancy payment. Concentrix Services Pty Ltd contended that the award changes did not retroactively apply to the employee's redundancy payment.

The Deputy President found that the award changes did not retrospectively apply to the calculation of the employee's redundancy pay. The changes to the award were held to apply only to future employment, not to previous employment or terminations that occurred before the changes took effect. Therefore, the employee's entitlement to redundancy pay was determined based on the award in effect at the time of his termination, not the amended award. The claim for an increased redundancy payment was accordingly dismissed.

The Fair Work Commission ordered that the claim for variation of the redundancy payment be dismissed. The employee was not entitled to an adjustment of his redundancy pay based on the subsequent changes to the award. The decision underscored the importance of understanding the temporal application of award changes in relation to redundancy payments.

Orders