De Freitas & Ryan Property Consultants Pty Ltd T/A De Freitas & Ryan

[2020] FWC 6912

[2020] FWC 6912

FAIR WORK COMMISSION

DECISION

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

De Freitas & Ryan Property Consultants Pty Ltd T/A De Freitas & Ryan
(C2020/8151)

COMMISSIONER WILLIAMS PERTH, 18 DECEMBER 2020

Variation of redundancy pay.

[1] This decision concerns an application by De Freitas & Ryan Property Consultants Pty Ltd to reduce the amount of redundancy pay to which an employee, Mrs Casey Aldersley (Mrs Aldersley), is entitled under the Real Estate Industry Award 2020 (the Award).¹

[2] The Applicant has provided written materials regarding this matter. Mrs Aldersley has not responded to the Commissions invitation to provide a response to the application.

Factual findings

[3] The Applicant advises, and it is not contested, that it has been purchased by Rental Management Australia (RMA), who have offered Mrs Aldersley the same position under their management, and Mrs Aldersley has accepted that offer.

Submissions

[4] The Applicant asserts that they have obtained other acceptable employment for Mrs Aldersley and so the amount of redundancy pay should be reduced by 50 %.

The Award

[5] Clause 30 – Redundancy, of the Award, states that redundancy pay is provided by the National Employment Standards at ss 119 to 123 of the Fair Work Act 2009 (the Act).

The National Employment Standards

[6] Sections 119 and 120 of the Act are relevant for the purposes of this decision and are set out below.

“Subdivision B—Redundancy pay

119      Redundancy pay

Entitlement to redundancy pay

(1) An employee is entitled to be paid redundancy pay by the employer if the employee’s employment is terminated:

(a) at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or

(b) because of the insolvency or bankruptcy of the employer.

Note: Sections 121, 122 and 123 describe situations in which the employee does not have this entitlement.

Amount of redundancy pay

(2) The amount of the redundancy pay equals the total amount payable to the employee for the redundancy pay period worked out using the following table at the employee’s base rate of pay for his or her ordinary hours of work:

Redundancy pay period
Employee’s period of continuous service with the employer on termination	Redundancy pay period
1	At least 1 year but less than 2 years	4 weeks
2	At least 2 years but less than 3 years	6 weeks
3	At least 3 years but less than 4 years	7 weeks
4	At least 4 years but less than 5 years	8 weeks
5	At least 5 years but less than 6 years	10 weeks
6	At least 6 years but less than 7 years	11 weeks
7	At least 7 years but less than 8 years	13 weeks
8	At least 8 years but less than 9 years	14 weeks
9	At least 9 years but less than 10 years	16 weeks
10	At least 10 years	12 weeks

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.”

The issue - Other acceptable employment

[7] The issue to be determined by the Commission is whether the employer has obtained “other acceptable employment” for the respondent employee.

[8] Given the employee remains in the same position, in the absence of any contrary evidence, I accept the Applicant’s assertion that they have obtained other acceptable employment for the Respondent employee.

[9] I consider the 50% reduction in redundancy pay appropriate. An order to that effect will now be issued.²

COMMISSIONER

On the papers

Printed by authority of the Commonwealth Government Printer

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1 MA000106.

2 PR725655.