Dalart Pty Ltd T/A Charman Roofing

[2017] FWC 343

[2017] FWC 343

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.120—Redundancy pay

Dalart Pty Ltd T/A Charman Roofing
(C2016/7170)

COMMISSIONER WILLIAMS PERTH, 19 JANUARY 2017

Variation of redundancy pay.

[1] This decision concerns an application made by Dalart Pty Ltd T/A Charman Roofing (Charman or the Applicant) under section 120 of the Fair Work Act 2009 (the Act). The Respondent is Mr Andrew Wilson (Mr Wilson).

[2] Charman is covered by the Dalart Pty Ltd t/as Charman Roofing Enterprise Agreement 2015 [AE420450]. This agreement includes Clause 25 Redundancy which says that the entitlements to redundancy payments will be as provided for in the Act.

[3] Section 119 of the Act provides for redundancy pay where an employee’s employment is terminated at the employer’s initiative, because the employer no longer requires the job to be done by anyone.

[4] Section 120 of the Act, set out below, provides that if an employee is entitled to be paid an amount of redundancy pay because of section 119 and the employer obtains other acceptable employment for that employee, on application, the Commission may determine that the amount of redundancy pay owing will be reduced.

“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 an amount of redundancy pay by the employer because of section 119; and
(b) the employer:
(i) obtains other acceptable employment for the employee;
or
(ii) cannot pay the amount.

(2) On application by the employer, the FWC may determine that the amount of redundancy pay is reduced to a specified amount (which may be nil) that the FWC considers appropriate.

(3) The amount of redundancy pay to which the employee is entitled under section 119 is the reduced amount specified in the determination.”

[5] This application is made under section 120 of the Act for the redundancy pay owing to Mr Wilson to be reduced on the grounds that Charman say they have obtained other acceptable employment for him.

[6] Having received the application made by Charman I issued directions which required Charman to provide a written outline of submissions and a copy of any witness statements they would rely upon by 21 December 2016. The directions also required Mr Wilson to provide his materials by 11 January 2017. The directions stated that the matter would be determined on the papers and that if either party failed to comply with the directions, the matter may proceed and be decided on the basis of the materials filed in compliance with the directions.

[7] Charman have not provided any materials to the Commission in compliance with the directions. Mr Wilson shortly after the directions were made provided a stream of emails largely dealing with his interactions with Charman over this and related matters. In those materials Mr Wilson did, in his email of 8 December 2016, deal with the question of what other acceptable employment may be in the circumstances here.

[8] Charman’s application states that Mr Wilson’s base rate of pay for ordinary hours of work at the date of his redundancy was $50.00 per hour. It states he is entitled to 4 weeks redundancy pay. The application says Charman is asking the Commission to reduce the redundancy pay to 2 weeks.

[9] The application asks whether Charman has obtained other acceptable employment for the employee to which Charman have answered “Yes” and provided the following details “Go from Supervisor on $50.00 per hour to tradesmen on $35.00 per hour.” The application says that the Mr Wilson did not accept the offer of other employment because he “Cannot afford to live on those wages.”

[10] Mr Wilson in his email of 8 December 2016, that was addressed to Charman and copied to my Chambers, says that the “other acceptable employment” offer does not include overtime which even on his supervisor contract he says he heavily relied on. Mr Wilson says the new contract has capped hours. The email says that not only would his pay decrease $15.00 per hour but that he would no longer be entitled to the fuel card which he previously had under his supervisor contract, he would also have to buy a new phone as he no longer is entitled to the company phone under the new contract.

Consideration

[11] The onus is on the Applicant to demonstrate to the Commission that the other employment that was offered to Mr Wilson is “other acceptable employment”. The information provided to the Commission is that the other employment involves a reduction in pay from $50.00 per hour to $35.00 per hour which amounts to a 30% decrease in wages. Mr Wilson also indicates there will also be other benefits lost, as explained above, if he had accepted the other employment. It also appears to be a fundamentally different role, the prior employment being as a supervisor and the other employment as a tradesman. In the circumstances there are significant negatives involved in the other employment. Considering the size of the lost wages for Mr Wilson and the other negative elements I am not satisfied the other employment was “other acceptable employment” at all. Consequently I will not grant this application to reduce the redundancy pay owing to Mr Wilson.

[12] There will be no reduction in the redundancy pay to which Mr Wilson is entitled and this application will now be dismissed. An order to that effect will be issued.

COMMISSIONER

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