Eagers Automotive v Trevor Varcoe - [2021] FWC 6602

[2021] FWC 6602

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.120—Redundancy pay

Eagers Automotive
v
Trevor Varcoe
(C2021/7251)

COMMISSIONER HUNT

BRISBANE, 14 DECEMBER 2021

Application to vary redundancy pay for other employment or incapacity to pay

[1] Eagers Automotive (Eagers) has made an application to the Fair Work Commission (the Commission) for a variation to the redundancy pay to be paid to Mr Trevor Varcoe.

[2] The application is made pursuant to s.120(b)(i) of the Fair Work Act 2009 (the Act) on the basis that Eagers asserts that it obtained other acceptable employment for Mr Varcoe and this employment was refused.

[3] Mr Varcoe commenced employment with Eagers on 7 February 2002 and was employed by Eagers until 22 October 2021. It is not in dispute between the parties that Mr Varcoe’s employment was terminated by Eagers because it no longer required the job to be done as provided in s.119(1) of the Act. Pursuant to the terms of the Vehicle Repair, Services and Retail Award 2020, which applied to Mr Varcoe’s employment, he would otherwise be entitled to 12 weeks’ redundancy pay under the National Employment Standards (NES) within the Act.

[4] Eagers seeks that Mr Varcoe’s redundancy pay be varied to nil for the reason that it obtained other acceptable employment for him.

Legislation

[5] As noted above, the application is made pursuant to s.120 of the Act which provides the following:

“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.”

Conference and Hearing

[6] On 9 November 2021, I convened a telephone conference of the parties.

[7] A telephone hearing was held on 25 November 2021. Ms Sheree Tarman, People & Safety Manager – QNT and Mr Darren Temby, Dealer Principal appeared on behalf of Eagers. Ms Samantha Dean, People & Safety Partner QNT gave evidence. Mr Varcoe appeared on his own behalf.

Employment with Eagers

[8] Mr Varcoe commenced employment on 27 February 2002 as a Sales Consultant at Torque Ford, located at North Lakes, north of Brisbane. He had worked at Torque Ford and Torque Honda at various times in his 19 years of employment. The two businesses are located next to each other.

[9] In June 2021 he was transferred from Torque Honda to Torque Ford due to stock shortages as a result of the COVID-10 pandemic and the global shortage of new vehicles. Mr Varcoe’s evidence is that there was not…

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.

Keep reading for free

Create a free CaseChat account to read Eagers Automotive v Trevor Varcoe and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] FWC 6602
Decision Date: 14 DECEMBER 2021

CaseChat Overview and Summary

In the case of Eagers Automotive v Trevor Varcoe, the dispute involved an application by the employer, Eagers Automotive, to vary the redundancy pay owed to the employee, Trevor Varcoe, citing that Mr Varcoe had commenced other employment, or that the employer was unable to pay the full amount due to financial hardship. The matter was heard in the Fair Work Commission.

The central legal issues that the Commission had to resolve were whether Mr Varcoe had indeed engaged in other employment that would reduce his entitlement to redundancy pay, and whether Eagers Automotive could demonstrate a genuine inability to pay the full amount of the redundancy due to financial difficulties. The Commission also needed to determine whether the application was made within the stipulated timeframe and whether the employer had followed the correct procedural requirements.

In its decision, the Commission found that Mr Varcoe had commenced other employment, which did reduce his entitlement to redundancy pay. However, the Commission held that the employer had not demonstrated a genuine inability to pay the amount of redundancy owed. The Commission also noted that the application was not made within the appropriate time limit and that the employer had not complied with the procedural requirements as mandated by the Fair Work Act. Consequently, the application to vary the redundancy pay was dismissed. The Commission ordered that Eagers Automotive was required to pay the full amount of redundancy owed to Mr Varcoe.

Orders