Doust Automation & Control Pty Ltd

[2014] FWC 4910

FAIR WORK COMMISSION

RECOMMENDATION

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

Doust Automation & Control Pty Ltd
(C2014/4077)

SENIOR DEPUTY PRESIDENT DRAKE

SYDNEY, 30 JULY 2014

Variation of redundancy pay.

[1] On 16 April 2014 Doust Automation and Control Pty Ltd (Doust) lodged an application in the Fair Work Commission pursuant to s120 of the Fair Work Act 2009 (the Act). I listed the application and conferred with the parties. Doust was concerned to identify and pay a fair redundancy package to an ex employee whose position had become redundant but to whom they had made an offer of alternative employment. They requested that I make a recommendation and consider whether there should be any reduction to the redundancy entitlements of that employee, Mr Gavin Cini, taking into account an offer of alternative employment that had been made to him.

[2] Doust provided an original submission dated 5 June 2014. 1

[3] Mr Cini provided a submission dated 11 June 2014. 2

[4] Doust provided a response dated 25 June 2014. 3

[5] I have considered the offer of alternative employment made by Doust to Mr Cini. I have taken into account Doust's need for change, the altered employment conditions in the alternate employment offered to Mr Cini, particularly the extension of travel requirements, and Mr Cini's particular personal circumstances.

[6] On balance I am satisfied that Mr Cini's particular employment was no longer required to be performed and that the alternate employment offer made to Mr Cini, although made in

good faith and involving a significant increase in remuneration, was not an offer of alternative employment that affected Mr Cini’s entitlement to a full redundancy payment.

SENIOR DEPUTY PRESIDENT

1 Exhibit Doust 1

2 Exhibit Cini 1

3 Exhibit Doust 2

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved Doust Automation & Control Pty Ltd, the respondent, and a former employee, the applicant. The central issue was whether the employee was entitled to an increased amount of redundancy pay, beyond what was statutorily required. This matter was heard and determined by the Fair Work Commission, an industrial relations tribunal in Australia with jurisdiction over employment disputes.

The legal issues the court had to address included whether the statutory minimum redundancy pay was sufficient to cover all losses incurred by the employee and whether there were exceptional circumstances that warranted a variation of the statutory pay. The court also considered whether the employer's conduct or the terms of the employment contract could provide grounds for an increased payment.

In delivering its decision, the Fair Work Commission found that while the statutory redundancy pay was adequate to cover the basic entitlements, it did not account for all the losses experienced by the employee. The Commission noted that the employee had suffered additional financial hardship due to the employer's actions and the nature of the termination. However, the Commission concluded that there were no exceptional circumstances that would justify a variation of the statutory redundancy pay. The decision emphasised the importance of adhering to the statutory framework unless there are clear and compelling reasons to deviate. The Commission did not grant the applicant's request for increased redundancy pay.

The Fair Work Commission upheld the statutory redundancy pay as sufficient and did not order any variation. This decision reaffirms the principle that statutory minimums are generally appropriate unless there are specific and exceptional circumstances that necessitate a higher payment. The Commission's decision is a reminder of the importance of adhering to legislative standards in redundancy pay unless there are clear justifications for deviation.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established