Enterprise Business Services (Australia) Pty Ltd v Kasun Siriwardene

[2014] FWC 5418

[2014] FWC 5418

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.120—Redundancy pay

Enterprise Business Services (Australia) Pty Ltd
v
Kasun Siriwardene
(C2014/4972)

COMMISSIONER CRIBB MELBOURNE, 8 AUGUST 2014

Variation of redundancy pay.

[1] Enterprise Business Services (Australia) Pty Ltd (the applicant, the company, EB Services) has made an application, under section 120 of the Fair Work Act 2009 (the Act), to have the redundancy pay payable to an employee reduced.

[2] The reason for the company’s application is that its commercial agreement to provide IT services to Jemena Limited (Jemena) will terminate on 30 September 2014. At this time, Jemena will insource the IT services currently being provided by EB Services. Offers of employment have been made by Jemena to EB Services employees to continue their current roles and functions with recognition of their service and accrued leave entitlements.

[3] Section 120 of the Act provides:

“(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 application has been dealt with on the papers. The Commission emailed and also wrote to the employee affected by the application, Mr Kasun Siriwardene, asking for his views. Mr Siriwardene did not respond to either the email or the letter from the Commission.

[5] The company is seeking an order that the redundancy monies payable to Mr Siriwardene be reduced to zero. This is on the basis that suitable alternative employment has been found by EB Services for Mr Siriwardene on comparable terms and conditions with continuity of service and accrued leave entitlements. In the documentation provided, it is evident that Mr Siriwardene has declined the offer of comparable employment with Jemena.

[6] Having considered the statutory provisions together with the information contained in, and attached to, the application, I am satisfied that I should exercise my discretion, pursuant to section 120(2) of the Act, and reduce the amount of redundancy pay payable to Mr Siriwardene to nil.

[7] An order 1 to this effect will be issued with this decision.

 1   PR554087

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<Price code A, PR554086>