Dennis Transport Pty Ltd v Barry Roberts, Niel Stevens & Terry Dempsey

[2015] FWC 6455

[2015] FWC 6455

FAIR WORK COMMISSION

DECISION

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

Dennis Transport Pty Ltd
v
Barry Roberts, Niel Stevens & Terry Dempsey
(C2015/5898; C2015/5899; C2015/5900)

DEPUTY PRESIDENT SAMS SYDNEY, 16 SEPTEMBER 2015

Variation of redundancy pay - employees redundant due to loss of contract - employees re-employed by new contractor - consent of employees - determination made.

[1] This decision deals with three applications filed on 1 September 2015 by Dennis Transport Pty Ltd (the ‘applicant’), pursuant to s 120 of the Fair Work Act 2009 (the ‘Act’) to vary the redundancy pay in respect to three of its driver employees, Mr Barry Roberts, Mr Niel Stevens and Mr Terry Dempsey, on the basis that the applicant had obtained other acceptable employment for each of them.

[2] In the applications, Ms A Horne set out the circumstances in which the determination was sought as follows:

‘We (employer) arranged for employees to attend job interviews with new employer who is taking on a third party contract previously undertaken. This ensures the same service to be provided to the same customers without disruptions to services. Job requirement and skill level remains the same for the contract, with the only change being the service provider. There will be no break in employment.’

In these circumstances, the applicant sought that the redundancy entitlement of each of the employees be reduced to nil.

[3] At a hearing of the application, Ms A Horne appeared for the applicant. Mr Roberts and Mr Stevens appeared to respond to the application and confirmed that they had accepted alternative offers of employment with the new contractor and that they did not oppose the determination sought by the applicant. It was said that the three drivers finished the employment with the applicant on a Friday and commenced employment with a new employer, performing the same duties on the following Monday. Mr Dempsey did not appear at the hearing, but subsequently corresponded with my Chambers to advise that he had also accepted the alternative offer of employment with the new contractor and that he too did not oppose the determination sought by the applicant.

The statutory context

[4] The legislative provisions relevant to this application are to be found in ss 119 and 120 of the Act as follows:

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.

[5] Having considered the submissions of the parties and the application filed by the applicant, I find that the alternative employment accepted by Mr Roberts, Mr Stevens and Mr Dempsey constitutes ‘acceptable employment’ within the meaning of s 120 of the Act. Given these circumstances and with the consent of the three respondent drivers, it is appropriate that the redundancy entitlement otherwise due to Mr Roberts, Mr Stevens and Mr Dempsey be reduced to nil. A determination to that effect will be issued contemporaneously with this decision.

DEPUTY PRESIDENT

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