Concentrix Services Pty Ltd v Yuri Kamada

[2023] FWC 766

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.120—Redundancy pay

Concentrix Services Pty Ltd
v

Yuri Kamada

(C2022/8486)

DEPUTY PRESIDENT LAKE

BRISBANE, 30 MARCH 2023

Variation of redundancy pay – alternative work offered – other employment found to be acceptable – 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 Yuri Kamada to nil.

The Applicant has provided Ms Kamada a role as Advisor II, Transaction Processing in a part time capacity (20 hours per week). The Applicant states they will continue to look for other duties and tasks for Ms Kamada.

The Applicant has stated that Ms Kamada had accepted the offer of the other acceptable employment provided to her. My Chambers wrote an email to Ms Kamada to determine any objections to the variation of redundancy on 27 March 2023. Ms Kamada did not raise any objections to the Application and confirmed as such in an email on 30 March 2023 which stated that she does not object to the variation of redundancy application made by the Applicant.

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)).

Conclusion

Taking into account all of the circumstances and that the Respondent did not raise objections to her new role with Concentrix, I consider that I will exercise my discretion to reduce the Respondents’ redundancy pay to zero. I Order accordingly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Concentrix Services Pty Ltd sought to reduce the redundancy pay of Yuri Kamada pursuant to section 120 of the Fair Work Act 2009. Kamada had been offered a role as an Advisor II, Transaction Processing in a part-time capacity of 20 hours per week by Concentrix, which she accepted. Kamada did not object to the application to reduce her redundancy pay when notified. The Commission had to decide whether the jurisdictional facts were established for it to exercise its discretion to reduce the redundancy pay under section 120 of the Act.

The Commission noted that under section 120, if an employee is entitled to redundancy pay under section 119, and the employer has obtained other acceptable employment for the employee, the Commission may reduce the amount of redundancy pay to an amount it considers appropriate. Given that Kamada had accepted the offer of alternative employment, the Commission was required to determine whether it should exercise its discretion to reduce her redundancy pay. The Deputy President considered the fact that Kamada did not object to the variation and had accepted the alternative employment as relevant to the exercise of discretion.

Upon considering the circumstances, the Deputy President concluded that the Commission should exercise its discretion to reduce Kamada's redundancy pay to zero. The Deputy President noted the absence of objections from Kamada to the alternative employment and the acceptance of the offer as factors supporting the reduction. The Deputy President ordered that the redundancy pay be reduced to zero in accordance with the application.

The Deputy President ordered that Yuri Kamada's redundancy pay be reduced to nil. This order reflects the Commission's exercise of its discretion under section 120 of the Fair Work Act 2009, taking into account the acceptance of alternative employment by Kamada and her lack of objections to the reduction.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established