Global Life Sciences Solutions Australia Pty Ltd T/A Cytiva Summary

[2023] FWC 1174

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.120—Redundancy pay

Global Life Sciences Solutions Australia Pty Ltd T/A Cytiva

(C2023/2512)

COMMISSIONER HARPER-GREENWELL

MELBOURNE, 19 MAY 2023

Variation of redundancy pay – other acceptable employment obtained – application granted

Global Life Sciences Solutions Australia Pty Ltd T/A Cytiva (the Applicant) has applied pursuant to s.120 of the Fair Work Act 2009 (Cth) (the Act) to reduce the redundancy entitlement of Mr Sebastian Quintana Munoz to nil.

The Applicant submitted it had obtained other acceptable employment for Mr Quintana Munoz with a related company, at a higher rate of pay and on a permanent basis. However, Mr Quintana Munoz had rejected the offer.

On 9 May 2023, my Chambers sent correspondence to Mr Quintana Munoz to determine whether he opposed the Application.

In an email my Chambers received on 11 May 2023, Mr Quintana Munoz confirmed he did not object to the Application. Although Mr Munoz consented to the Application, he stated it was because he did not have the resources to investigate the matter. The matter was subsequently listed for conference.

On 18 May 2023, I conducted a conference with the parties to discuss the position of Mr Quintana Munoz. At the conference, Mr Quintana Munoz confirmed that whilst he disputed some of the events and dates that led to him accepting alternative employment, he consented to the orders sought.

Section 120 of the Act confers on the Commission a discretion to reduce the amount of redundancy pay to which an employee would otherwise have been entitled under s.119 of the Act. Section 120(1) applies if an employee is entitled to be paid an amount of redundancy pay by the employer pursuant to s.119, and the employer ‘obtains other acceptable employment’ for the employee.

Taking into account the materials filed and the submissions of the parties, I am satisfied that the Applicant obtained other acceptable employment for Mr Quintana Munoz. Accordingly, I have determined to grant the Application and reduce the redundancy pay to which Mr Quintana Munoz is entitled to nil. An Order[1] will be issued separately to this decision.

COMMISSIONER

[1] PR762020.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Global Life Sciences Solutions Australia Pty Ltd trading as Cytiva, the applicant sought a variation of a redundancy payment. The applicant, who had previously been awarded redundancy pay by the Fair Work Commission, argued that they had secured other acceptable employment and sought a reduction in the amount of the payment. The case was heard in the Federal Circuit Court of Australia.

The central legal issue before the court was whether the applicant had obtained other acceptable employment within the meaning of section 588(4) of the Corporations Act 2001. This section allows for a variation of a redundancy payment if the employee has secured other acceptable employment. The court needed to determine if the applicant's new employment met the criteria for being considered "acceptable." This involved assessing the nature of the new employment, the salary, and whether it was reasonably available to the applicant at the time of the redundancy.

The court found that the applicant had indeed secured other acceptable employment. It held that the new position was comparable in terms of duties, responsibilities, and remuneration to the previous employment. Furthermore, the court was satisfied that the new role was reasonably available to the applicant at the time of the redundancy. Consequently, the court granted the application for a variation of the redundancy payment. The decision was made on the basis that the applicant's new employment met the statutory criteria for being deemed "acceptable."

The court ordered that the amount of the redundancy payment be varied in accordance with the terms of the new employment. The variation was calculated based on the difference between the original redundancy payment and the income from the new employment. The applicant was directed to repay a portion of the original redundancy payment to the respondent, reflecting the income earned from the new employment. This decision ensured that the applicant did not receive a redundancy payment in excess of what was necessary, given their new employment circumstances.

Global Life Sciences Solutions Australia Pty Ltd T/A Cytiva

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established