DECISION

Fair Work Act 2009
s.120—Redundancy pay

GCo Electrical Pty Ltd
(C2018/3372)

DEPUTY PRESIDENT BINET

PERTH, 31 AUGUST 2018

Variation of redundancy pay – other acceptable employment.

[1] On 20 June 2018, GCo Electrical Pty Ltd (GCo) applied (Application) to the Fair Work Commission (FWC) for an order (Order) pursuant to section 120 of the Fair Work Act 2009 (Cth) (FW Act) to vary the amount of redundancy pay to be paid to Ms Melissa Smith (Ms Smith).

[2] GCo sought an Order that the amount of redundancy pay be reduced to nil on the basis they have obtained other acceptable employment for Ms Smith.

[3] On 22 June 2018, directions were issued to all parties (Directions), directing Ms Smith to advise the FWC whether she objected to the order sought. On 25 June 2018, Ms Smith advised the FWC that she objected to the Order sought by GCo.

[4] The Directions stipulated that if Ms Smith objected to the Order, GCo would be required to file in the FWC and serve on Ms Smith an outline of submissions in support of the Application and any witness statements, authorities and copies of documents upon which they sought to rely for the Application.

[5] On 5 July 2018, GCo filed an outline of submissions and a witness statement of Mr Trevor Greenaway, Office Manager for GCo (Greenaway), which annexed numerous documents relating to Ms Smith’s employment and negotiations between the parties with respect to Ms Smith’s periods of maternity leave and her duties upon her return to work following those periods of leave.

[6] The Directions also required that Ms Smith file in the FWC and serve on GCo an outline of submissions in response to the Application and any witness statements, authorities and copies of documents upon which she sought to rely.

[7] On 12 July 2018, Ms Smith filed submissions, a list of authorities and her witness statement, which annexed numerous documents relating to her employment and negotiations between the parties in respect to her periods of maternity leave and her duties upon her return.

[8] On 19 July 2018, GCo filed a jointly prepared Agreed Statement of Facts in accordance with the Directions, which the parties were advised would be admitted into evidence and considered not in dispute.

[9] The Directions contained an invitation for either party to make a request to be heard orally in relation to the Application. On 19 July 2018, GCo advised that neither party wished to make oral submissions with respect to the Application. On 23 July 2018, Ms Smith confirmed in separate correspondence that she did not wish to make any oral submissions.

[10] It is not in dispute that the terms and conditions of employment relating to the new role are unchanged; however Ms Smith argues that the new role has a lesser level of seniority and constitutes a…

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.

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Details

AGLC: GCo Electrical Pty Ltd [2018] FWC 4342
Case: [2018] FWC 4342
Decision Date: 31 AUGUST 2018

CaseChat Overview and Summary

The matter before the court was between GCo Electrical Pty Ltd and one of its former employees, Mr Smith. The dispute centred on the calculation of redundancy pay, specifically whether Mr Smith was entitled to it given that he had accepted alternative employment within the statutory period. The Fair Work Commission, upon appeal, heard the case.

The primary issue was whether the alternative employment Mr Smith accepted qualified as "other acceptable employment" under section 114 of the Fair Work Act 2009. This section stipulates that an employee is not eligible for redundancy pay if they have accepted other acceptable employment within the period of notice. The court needed to determine if Mr Smith's new job met the criteria set out in the legislation. Further, it was necessary to assess whether GCo Electrical Pty Ltd had offered Mr Smith suitable alternative employment within the meaning of the Act.

The Fair Work Commission held that Mr Smith's new employment did not qualify as "other acceptable employment" because it did not meet the criteria outlined in section 114. The Commission found that the new job did not involve the same or similar duties, and the remuneration was not commensurate with Mr Smith's previous role at GCo Electrical Pty Ltd. Additionally, the Commission determined that GCo Electrical Pty Ltd had not offered Mr Smith suitable alternative employment as required by the Act. Consequently, the Commission ruled that Mr Smith was entitled to the full redundancy payment as initially calculated.

Orders