Concentrix Services Pty Ltd T/A Concentrix Services v Sheridan Campbell

[2023] FWC 1241

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.120—Redundancy pay

Concentrix Services Pty Ltd T/A Concentrix Services
v

Sheridan Campbell

(C2023/1135)

DEPUTY PRESIDENT LAKE

BRISBANE, 30 MAY 2023

Variation of redundancy pay – alternative work offered – other employment found to be reduction of role – redundancy varied.

Concentrix Pty Ltd (the Applicant) has applied pursuant to s.120(2) of the Fair Work Act 2009 (the Act) to have the Fair Work Commission (the Commission) reduce the redundancy entitlement of Ms Sheridan Campbell to nil.

The Applicant provided Ms Campbell three options on 30 January 2023:

Option 1 - Team Leader – a Permanent full-time role located in Brisbane which required Ms Campbell to be in the office.
Option 2 - Advisor 1 – Permanent full-time role located at Robina with a reduced rate of pay and status/responsibility.
Option 3 - Advisor 1 – Casual ongoing role that was on a work from home basis which was her redundant role. The rate of pay was higher but no longer had entitlements of leave.

The Applicant lives in Varsity Lakes near the Gold Coast which is 2 hours and 15 minutes away from Brisbane. The other option was in Robina which is about 30 minutes from Varsity Lakes. Ms Campbell selected Option 3 – to be a casual advisor with Concentrix on 15 February 2023.

Section 120 confers on the Commission a discretion to reduce the amount of redundancy pay to which an employee would otherwise have been entitled under s.119 of the Act.

Section 120(1) states that the section applies if an employee is entitled to be paid an amount of redundancy pay under s.119, and the employer ‘obtains other acceptable employment’ for the employee. These are the jurisdictional facts that must be established before the Commission may exercise its discretion. Section 120(2) then states that the Commission ‘may determine that the amount of redundancy pay is reduced to a specified amount (which may be nil) that the FWC considers appropriate’. If the Commission makes an order under s.120(2), the amount of redundancy pay to which the employee is entitled is the reduced amount specified in the determination (see s.120(3)).

There was other acceptable employment for the employee under s120(1) of the Act. However, her current role had faced a significant reduction of hours. Option 1 would have the Applicant travel 2 hours by public transport or would require driving from Varsity Lakes to Brisbane to which parking is not provided.

The Applicant had been employed for 2 years and 7 months at the time of Application. The Applicant would be entitled to 6 weeks’ pay. Noting the significant change in hours of work, losing her future entitlements from a Full-Time employee to casual, and her role being moved to Brisbane to which the role is not suitable, I take into account an amount of redundancy that is appropriate to the Respondent.

Conclusion

Taking into account all of the circumstances and taking into account the objections raised by Mrs Campbell’s new role with Concentrix, I consider that I will exercise my discretion to reduce the Respondents’ redundancy pay to 3 weeks. I Order accordingly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Concentrix Services Pty Ltd T/A Concentrix Services v Sheridan Campbell, the applicant sought a reduction in the redundancy pay owed to the respondent, Sheridan Campbell. Concentrix Services offered Ms Campbell three options after a redundancy was announced, with the third option being a casual role that was effectively her previous position but with reduced entitlements. The case was heard by the Fair Work Commission and the Deputy President, Lake, who exercised discretion under s.120 of the Fair Work Act 2009 to reduce the redundancy pay to which Ms Campbell would otherwise be entitled.

The legal issues before the Court included whether the alternative employment offered to Ms Campbell constituted 'other acceptable employment' under s.120(1) of the Act, and if so, whether the Commission had the discretion to reduce the redundancy pay to nil or a lesser amount. The Court found that the third option offered to Ms Campbell was indeed acceptable employment, as it was essentially her former role with altered terms and conditions. However, given the significant reduction in hours, the loss of future entitlements, and the inconvenience of the new location, the Deputy President determined that the redundancy pay should be reduced but not entirely eliminated.

The Deputy President concluded that the appropriate amount of redundancy pay, taking into account all the circumstances, was three weeks. The Court considered the objections raised by Ms Campbell regarding her new role, including the significant reduction in hours, the loss of future entitlements from a full-time to a casual position, and the relocation of her role to Brisbane, which was not suitable given her residence near the Gold Coast. The Deputy President found that these factors warranted a reduction in the redundancy pay but not to nil, resulting in an order for a reduction to three weeks.

The Court's decision resulted in an order that the redundancy pay owed to Ms Campbell be reduced to three weeks, reflecting the significant changes in her employment terms and the factors considered by the Deputy President.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established