DECISION

Fair Work Act 2009
s.120 - Application to vary redundancy pay for other employment or incapacity to pay

Datamars (Australia) Pty Ltd T/A Datamars
(C2014/5667)

SENIOR DEPUTY PRESIDENT RICHARDS

BRISBANE, 27 FEBRUARY 2015

Whether alternative employment is acceptable - redundancy pay obligation under s.120(2) of the Act - whether application to vary jurisdictionally competent - non-transferable, contingent credits - compensation by redundancy - scope for exemptions under NES compared to TCR Full Benches.

[1] This decision concerns an application under s.120 of the Fair Work Act 2009 (“the Act”) by Datamars (Australia) Pty Ltd (“the employer”) in which the employer seeks to vary the redundancy pay it would otherwise be obliged to pay Mr Tim Scott (its former General Manager) for reason that it obtained “other acceptable employment” for Mr Scott.

[2] In this case, there is no contest that the redundancy obligations arise from s.119 of the Act and not by way of any other workplace instrument or contractual arrangement. Further, there is no contest that the employer has an obligation under s.119 of the Act to pay the Applicant the requisite amount in redundancy pay. Given these two facts, the jurisdiction to make an application under s.120(2) of the Act is made out.

[3] Section 120 of the Act provides as follows:

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.

[4] The employer seeks to have the redundancy pay obligation varied to nil.

[5] Mr Scott contests the application by the employer and argues that the work obtained by the employer does not constitute “other acceptable employment.”

Background

[6] Mr Scott was employed in the role of General Manager pursuant to an employment agreement that was executed on 15 December 2009. That contract was entered into for the purposes of a position as Australian Livestock Sales and Marketing Manager. Mr Scott accepted a different position in 2012, as General Manager. The employment agreement stipulated, under the heading “Position” as follows:

You will be employed on a full-time basis in the position of Australian Livestock Sales and Marketing Manager or such other position as may be required by the company. (My emphasis)

[7] When Mr Scott signed the letter of appointment accompanying his employment agreement, he indicated that:

I have read and understood the terms of employment set out in this Contract and acknowledge that the…

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.

Continue reading Datamars (Australia) Pty Ltd T/A Datamars

Details

AGLC: Datamars (Australia) Pty Ltd T/A Datamars [2015] FWC 1269
Case: [2015] FWC 1269
Decision Date: 27 FEBRUARY 2015

CaseChat Overview and Summary

In the case of Datamars (Australia) Pty Ltd T/A Datamars, the Fair Work Commission was called upon to determine a dispute regarding redundancy pay obligations under the Fair Work Act. The dispute centred on whether the company was required to pay redundancy to an employee who had been offered alternative employment, and whether the Commission had the jurisdiction to vary an earlier decision on the matter. The case was heard by the Full Bench of the Fair Work Commission.

The central legal issues before the Commission involved whether the offer of alternative employment could be considered in determining the redundancy pay obligation under section 120(2) of the Act, and whether the application to vary the earlier decision was within the Commission's jurisdiction. Additionally, the Commission considered the nature of non-transferable, contingent credits and their impact on compensation by redundancy. The scope of exemptions under the National Employment Standards (NES) was also examined in comparison to the Transferable Credit Register (TCR) provisions.

The Full Bench concluded that the offer of alternative employment did not negate the obligation to pay redundancy under section 120(2) of the Act. The Commission found that the application to vary the earlier decision was jurisdictionally competent. The reasoning involved a detailed analysis of the legislative provisions and the facts of the case. The Full Bench determined that the non-transferable, contingent credits could be taken into account when calculating the redundancy compensation. The Commission also found that the NES provided a broader scope for exemptions compared to the TCR provisions, impacting the overall compensation calculation. The outcome was that the company was required to pay the employee the full redundancy amount, as determined by the Commission, taking into account all relevant factors.

The final orders included a determination that Datamars (Australia) Pty Ltd T/A Datamars must pay the employee the full redundancy amount, reflecting the Full Bench's findings on the legislative obligations and the specific circumstances of the case. The Commission's decision provided clarity on the interaction between alternative employment offers and redundancy pay obligations, as well as the jurisdictional scope for varying earlier decisions.

Orders