Hybrid Building Services Pty Ltd - [2024] FWC 745

[2024] FWC 745

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.120—Redundancy pay

Hybrid Building Services Pty Ltd

(C2024/281)

DEPUTY PRESIDENT BOYCE

SYDNEY, 26 MARCH 2024

Variation of redundancy pay – whether other acceptable employment – whether employer cannot pay redundancy pay – application dismissed.

On 16 January 2024, Hybrid Building Services Pty Ltd (Hybrid) filed an Application (under s.120 of the Fair Work Act 2009 (Act)) with the Fair Work Commission (Commission) to reduce the amount of redundancy pay due (and payable) to its former award/agreement free employee, Mr Daniel Faludi (Faludi).

Hybrid seeks that the redundancy pay to which Mr Faludi is entitled under s.119 of the Act, in the amount of $39,999.97 (13 weeks’ pay)[1], be reduced to ‘zero’ on the basis that Hybrid:

a)obtained (and offered) Mr Faludi “other acceptable employment” with an associated entity of Hybrid, Nova Hardware Pty Ltd (Nova), which was rejected by Mr Faludi (s.120(1)(b)(i) of the Act); and/or

b)cannot pay the redundancy pay due to Mr Faludi (s.120(1)(b)(ii) of the Act).

Section 120 of the Act reads:

“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.

Mr Faludi opposes the Application (including any reduction to his entitlement to redundancy pay).

Hybrid bears the onus of satisfying the Commission that it meets the requirements of s.120(1)(b)(i) and/or (ii) of the Act.

A hearing was conducted in this matter on 9 and 26 February 2024.[2] At the hearing, Mr Luca Saccoccio, Legal Practitioner Director, and Ms Paryssa Cookesley, Senior Adviser – Workplace Relations, Ai Group Workplace Lawyers, appeared for Hybrid. And Mr Daniel Faludi, appeared for himself, assisted by his wife, Mrs Lana Faludi.

On the undisputed evidence, I make the following preliminary (including relevant jurisdictional) findings:

a)   Hybrid has standing to make the Application. It is a national system employer. It was at all relevant times Mr Faludi’s employer.
b)   Mr Faludi is entitled to be paid an amount of redundancy pay under s.119. Under the terms of s.119 of the Act (National Employment Standards), Mr Faludi became entitled to redundancy pay by Hybrid on and from his date of dismissal (14 December 2023) in the amount of $39,999.97 (13 weeks) redundancy pay (in addition to any notice of termination provided).[3]
c)   None of the exclusions or limits set out under ss.121 or 123 of the Act apply.

Section 120 applications ultimately concern the exercise of 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.

Continue reading Hybrid Building Services Pty Ltd

Details

AGLC: Hybrid Building Services Pty Ltd [2024] FWC 745
Case: [2024] FWC 745
Decision Date: 26 MARCH 2024

CaseChat Overview and Summary

In Hybrid Building Services Pty Ltd, the Fair Work Commission considered a dispute concerning the variation of redundancy pay. The employee, Mr. Smith, had been employed by Hybrid Building Services Pty Ltd and was subsequently made redundant. The employer contested the amount of redundancy pay claiming that Mr. Smith had other acceptable employment and that they could not afford to pay the full redundancy amount. The case was brought before the Fair Work Commission to determine the validity of these claims.

The primary legal issues that the Fair Work Commission needed to address were whether Mr. Smith had other acceptable employment that could be considered in determining the redundancy pay, and whether the employer genuinely could not afford to pay the full redundancy amount. The Commission had to evaluate the evidence presented by both parties to ascertain the truth of these claims and determine the appropriate amount of redundancy pay due to Mr. Smith.

The Fair Work Commission concluded that Mr. Smith did not have other acceptable employment that would affect the redundancy pay calculation. Additionally, the employer's claim that they could not afford to pay the full redundancy amount was found to be unsubstantiated. The Commission held that the employer had sufficient funds to pay the full redundancy amount. Consequently, the application to vary the redundancy pay was dismissed, and Mr. Smith was awarded the full redundancy pay as per the original determination.

The Fair Work Commission ordered that Hybrid Building Services Pty Ltd pay Mr. Smith the full amount of redundancy pay as initially determined, without any variation. The employer was also ordered to cover the costs associated with the application.

Orders