Jeanswest Corporation Pty Ltd T/A Jeanswest v Nicole Tsaldaris

[2015] FWC 3060

[2015] FWC 3060

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.120—Redundancy pay

Jeanswest Corporation Pty Ltd T/A Jeanswest
v
Nicole Tsaldaris
(C2015/2293)

COMMISSIONER GREGORY MELBOURNE, 5 MAY 2015

Variation of redundancy pay.

Introduction

[1] This matter concerns an application by Jeanswest Corporation Pty Ltd (“Jeanswest”) to vary the redundancy pay entitlement due to one of its employees, Ms Nicole Tsaldaris, because it has obtained other acceptable employment for her. After receiving the application the Commission issued directions for filing and service of evidence and submissions to Jeanswest and Ms Tsaldaris. Jeanswest subsequently provided a written submission in accordance with those directions, however, nothing was received from Ms Tsaldaris. In addition, she did not attend when the matter came on for hearing. Jeanswest then advised the Commission it did not wish to make further oral submissions, or provide further evidence in support of its application. The Commission accordingly decided to determine the matter on the basis of the materials filed.

The Issue to Be Decided

[2] Section 120 of the Fair Work Act 2009 (Cth) enables an application to be made to the Commission for variation of redundancy pay entitlements. Section 120 states:

“(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.” 1

[3] Therefore:

1. Has Jeanswest obtained “other acceptable employment” for Ms Tsaldaris as provided for in s.120?

2. If so, is it appropriate for the Commission to exercise its discretion to reduce the amount of the redundancy pay entitlement from due to Ms Tsaldaris?

Evidence and Submissions

[4] The submissions provided by Jeanswest indicate Ms Tsaldaris has been employed with the business since December 2012. In July 2014 she was promoted to a permanent Assistant Store Manager role at its Watergardens store. However, after a subsequent review of its operations Jeanswest decided it no longer needed an Assistant Store Manager at that location. It met with Ms Tsaldaris in December to discuss this possibility and confirmed its decision in February 2015.

[5] It submits that in subsequent discussions Ms Tsaldaris was informed of an Assistant Store Manager vacancy at another store in the same region, and was also told she could apply for other vacancies elsewhere. It also indicated to her that a full-time Senior Retail Member position would be available to her if she chose to remain at the Watergardens store. It submits Ms Tsaldaris indicated in response her preference was to remain at the Watergardens store and she would accept the Senior Retail Member position at that location.

[6] Jeanswest continues to submit that on the basis of these discussions the full-time Senior Retail Member role was offered to Ms Tsaldaris in March this year. It was also indicated to her that she could take a redundancy package if that was her preferred option. However, she accepted the Senior Retail Member role and now occupies that position. This arrangement was confirmed in writing. The letter also indicated to Ms Tsaldaris that as a consequence of her accepting that offer Jeanswest would be seeking to vary the redundancy entitlement otherwise due to her.

[7] The current application by Jeanswest proposes to vary that entitlement to instead make a payment to Ms Tsaldaris of an amount equivalent to the difference between her previous salary and her current salary over a period of 6 weeks, being a total gross amount of $1,060.20.

Consideration

[8] I am satisfied it is appropriate for the Commission to exercise its discretion in this case to vary the amount of redundancy pay that might otherwise be due to Ms Tsaldaris. I am also satisfied it is appropriate to vary the amount to the amount proposed by Jeanswest.

[9] Jeanswest offered Ms Tsaldaris a role in the same position that she currently occupied at another store located in a similar region after the decision was made that her position was no longer required at the Watergardens store. Ms Tsaldaris was also given the opportunity to apply for other vacant positions. In addition, it was indicated to her that she could elect to take a redundancy package if that was her preferred option. However, her preference has been to remain at the Watergardens store, even though this means she has taken on a different position at a lower salary level.

[10] I am accordingly satisfied in all the circumstances that Jeanswest did obtain “other acceptable employment” for Ms Tsaldaris, although she subsequently chose to reject that offer in order to remain at her preferred store location. Having come to this conclusion I am also satisfied it is appropriate to reduce the amount of redundancy pay that might otherwise be due to Ms Tsaldaris to the amount proposed by Jeanswest. An order to this effect will be issued in conjunction with this decision.

COMMISSIONER

 1   Fair Work Act 2009 (Cth) at s.120

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