Concentrix Services Pty Ltd v Yuri Kamada

[2023] FWC 766

[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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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

1. 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

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