Kalwun Development Corporation Limited v Mrs Jeanette Garrett

[2016] FWC 4720

[2016] FWC 4720

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.120 - Application to vary redundancy pay for other employment or incapacity to pay

Kalwun Development Corporation Limited
v
Mrs Jeanette Garrett
(C2016/3903)

COMMISSIONER BOOTH BRISBANE, 28 JULY 2016

Variation of redundancy pay - other acceptable employment.

[1] This is an application under s.120 of the Fair Work Act 2009 (the Act) by which Kalwun Development Corporation Limited (the Employer) has sought to reduce the amount of redundancy pay it must otherwise pay Mrs Jeanette Garrett (the Employee). The Employer seeks the reduction on the basis of the efforts it has made to obtain employment for the Employee.

Legislation

[2] The scale of redundancy pay is set out in s.119 of the Act. Section 120 of the Act sets out various rules and provides as follows:

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.

[3] The Employer asserts that the affected employee was made redundant from her role with the employer, but remains in the employment of the Employer in a different role. The employer asserts that the new role is based at the same location, however, the Employee

• will be permanently losing 14.8 hours per week in the new role;



• has been offered redundancy for these hours at $34.41 per hour x 12 weeks being $6111.24;



• is offered payment for the difference between the old hourly rate and new hourly rate for 12 weeks being $738.72 as well; thus



• is offered a Total Redundancy payment of $6849.96.

[4] The facts asserted by the Employer are agreed to by the Employee (by way of a statutory declaration provided to the Commission) in the following terms:

“Kalwun Development Corporation has offered me alternate employment as Payroll Officer. I consider the alternative employment to be acceptable along with a part redundancy payment.”

Conclusion

[5] The Employee accepted the alternative employment as a Payroll Officer, with a reduction in hours and salary.

[6] The Employer seeks to reduce the redundancy payment to $6849.96. The Employee does not contest the reduction and accepts it along with the offer of alternative employment.

[7] Accordingly I am satisfied that I should exercise my discretion under s.120(2) of the Act and reduce the amount of redundancy pay on the the basis that alternative employment has been obtained by the Employer with a reduction in hours and salary.

[8] The amount of redundancy pay that the Employer is obligated to pay the affected employee is reduced to $6849.96.

COMMISSIONER

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