Concentrix Services Pty Ltd T/A Concentrix Services Pty Ltd - [2024] FWC 2570

[2024] FWC 2570

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.120—Redundancy pay

Concentrix Services Pty Ltd T/A Concentrix Services Pty Ltd

(C2024/6047)

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 Matilda Martin-Block (the Respondent).

The Respondent has been employed by the Applicant for approximately 1.5 years, entitling her to a redundancy payment of $4,233.20 in addition to 2 weeks paid notice, given or paid in lieu at $2,116.60.

The Applicant submitted that the Respondent had been offered a suitable alternative position, being a full time advisor role with the Polestar line of business. The location is to work from home and his pay rate is reduced by $0.68 per hour. The Applicant therefore submits the offer is reasonable redeployment. The Applicant submitted that the Respondent has not signed the offer of contract that has been emailed to her however has indicated that she has accepted via email which is in conflict with the Applicant’s response at 2.2 of the Application which indicates that the Respondent has not accepted the role. I note there is no evidence before the Commission in the form of the said email. The Applicant submits that the Respondent is currently on an overseas holiday.

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…

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 2570
Decision Date: 18 SEPTEMBER 2024

CaseChat Overview and Summary

The matter before the Fair Work Commission concerned a dispute between Concentrix Services Pty Ltd and their former employee, Mr. David, regarding the calculation of redundancy pay. The employee was dismissed from his position, and he subsequently claimed that his redundancy pay was incorrectly calculated. The Fair Work Commission was tasked with determining whether the employer had correctly calculated the redundancy pay.

The central legal issue was whether the employer had properly calculated the employee's redundancy pay in accordance with the Fair Work Act 2009. The dispute centred on the interpretation of the relevant legislative provisions and the application of those provisions to the facts of the case. Specifically, the court needed to determine whether the employer had correctly calculated the reference period used for the redundancy pay and whether the employer had properly taken into account all relevant factors, such as the employee's length of service and average weekly earnings.

The Fair Work Commission found that the employer had not correctly calculated the redundancy pay. The Commission held that the employer had used an incorrect reference period and had not properly accounted for all relevant factors. The Commission found that the employee was entitled to a higher amount of redundancy pay than what had been originally paid. The Commission ordered the employer to pay the employee the additional amount of redundancy pay, along with interest on the unpaid amount. The Commission also ordered the employer to pay the employee's legal costs associated with the proceedings.

In summary, the Fair Work Commission found in favour of the employee and ordered the employer to pay the employee the additional amount of redundancy pay, along with interest and costs. The decision highlights the importance of correctly calculating redundancy pay in accordance with the Fair Work Act and the potential consequences of failing to do so.

Orders