Goroacen Services Pty Limited v Cally Edmonds - [2024] FWC 2763

[2024] FWC 2763

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.120—Redundancy pay

Goroacen Services Pty Limited
v

Cally Edmonds

(C2024/3089)

COMMISSIONER MATHESON

SYDNEY, 3 OCTOBER 2024

Variation of redundancy pay – other acceptable employment – amount reduced to zero.

Goroacean Services Pty Limited (Applicant) has made an application pursuant to s.120 of the Fair Work Act 2009 (Cth)(Act) seeking to reduce the amount of redundancy pay it is required to pay to its employee Cally Edmonds on the grounds that it obtained other acceptable employment for her.

Section 120(1) of the Act provides that s.120 applies if:

(a) an employee is entitled to be paid an amount of redundancy pay by the employer because of s.119; and

(b) the employer:

(i)obtains other acceptable employment for the employee; or
(ii)cannot pay the amount.

Section 120(2) of the Act provides that on application by the employer, the Fair Work Commission (Commission) may determine that the amount of redundancy pay is reduced to a specified amount (which may be nil) that the Commission considers appropriate.

Section 120(3) of the Act provides that the amount of redundancy pay to which the employee is entitled under s.119 is the reduced amount specified in the determination.

Both parties were self-represented before the Commission and following a conference both parties consented to the determination of the matter based on the materials before the Commission.

Section 120(1)(a) – Is Ms Edmonds entitled to be paid an amount of redundancy pay by the Applicant because of s.119?

Section 119(1) of the Act provides that an employee is entitled to be paid redundancy pay by the employer if the employee’s employment is terminated:

(a)at the employer's initiative because the employer no longer requires the job by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or
(b)because of the insolvency or bankruptcy of the employer.

Sections 121, 122 and 123 describe situations in which the employee does not have this entitlement. It was not in contention, and I find that none of the circumstances in s. 121, 122 and 123 apply to Ms Edmonds.

There is a complex factual matrix in this matter that I deal with below.

The Applicant’s business activities

The Applicant’s trading name is ‘The Boathouse Group’, it employs over 650 employees and operates 10 hospitality venues across Sydney and Patonga in New South Wales and is opening new venues, including a venue in Wollongong.[1] The Applicant’s operations include dining, accommodation, weddings, events, homewares, a ferry service and an amusement park.[2] Some of its venues offer a retail range of products for guests to purchase as part of their guest experience and the Applicant also has an e-commerce offering via its website and social media platforms.[3]

Ms Edmonds’ role in the business

Ms Edmonds held the role of Store Manager (Store Manager Role) in a homewares store at Palm Beach which is attached to a hospitality venue.

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

Case: [2024] FWC 2763
Decision Date: 3 OCTOBER 2024

CaseChat Overview and Summary

The case involves a dispute between Goroacean Services Pty Limited (Applicant) and Cally Edmonds (Respondent). The Applicant, trading under The Boathouse Group, sought to reduce the amount of redundancy pay it was required to pay to Ms Edmonds under s.120 of the Fair Work Act 2009 (Cth). The Respondent, Ms Edmonds, contested the application, arguing that the Applicant had not obtained other acceptable employment for her as required by s.120(1)(b) of the Act. The legal issues were whether Ms Edmonds was entitled to redundancy pay under s.119 of the Act, and if so, whether the Applicant obtained other acceptable employment for her under s.120(1)(b) of the Act, which would reduce the amount of redundancy pay. The Commissioner found that Ms Edmonds was entitled to redundancy pay as her employment was terminated at the Applicant’s initiative because it no longer required her job to be done by anyone. However, the Commissioner also found that the Applicant obtained other acceptable employment for Ms Edmonds in the form of the Retail and Store Manager Role, which was offered to her. The Commissioner determined that the amount of Ms Edmonds’ redundancy pay should be reduced to zero, taking into account the offer of other acceptable employment and the fact that Ms Edmonds elected not to accept it.

Orders