Kelly Group (Administration) Pty Ltd - [2023] FWC 2212

[2023] FWC 2212

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.120—Redundancy pay

Kelly Group (Administration) Pty Ltd

(C2022/8001)

COMMISSIONER SCHNEIDER

PERTH, 4 SEPTEMBER 2023

Variation of redundancy pay

This decision concerns an application made by Kelly Group (Administration) Pty Ltd (the Applicant) to reduce the amount of redundancy pay to which an employee, Ms Bernita Garbutt (the Respondent) is entitled under section 119 of the Fair Work Act 2009 (Cth) (the Act).

The Applicant seeks to reduce the Respondent’s redundancy pay from ten weeks to nil on the grounds that she was offered other acceptable employment.

The parties have provided written materials outlining their respective positions. Having considered the evidence and submissions, I have determined that the application will be dismissed, and there will be no reduction in the redundancy payment to which Mr Passmore is entitled.

My reasons are as follows.

Background

The Respondent commenced employment at the Applicant as a casual on 17 April 2017 and then commenced on a part time contract from 10 July 2017.

The Respondent ceased employment at the Applicant on 12 November 2022.

The Respondent was engaged to work 28 hours across 4 days per week.

The Respondent was employed as a Payroll Officer and the terms and conditions of her employment were governed by the Clerks-Private Sector Award 2020 (the Award) and her employment contract.

Consistent with the terms and conditions of the Award and the National Employment Standards (NES), the Respondent, being an employee who was employed for more than 5 years but less than 6 years, is entitled to ten weeks redundancy payment.

During the redundancy process, the Applicant claims it offered the Respondent two positions of other acceptable employment. This submission is disputed.

The Applicant seeks to reduce the redundancy payment to nil on the basis that the Respondent refused other acceptable employment.

The Respondent objects to the application on the grounds that the roles mentioned in the application were not arranged by the Applicant and were not other acceptable employment due to what she claims are differences to her redundant role.

Submissions

Applicant

The Applicant’s submissions regarding other positions offered to the Respondent are brief and read as follows:

“The employee was advised that due to the restructuring of the administration function of the business, her role would become redundant.

The Applicant spoke with another business in the same industry as to whether they had a role for the employee. A role was available. The Applicant negotiated with the potential new employer, and it was agreed that they would recognize the employee's service and transfer all entitlements if she became employed by the business.
The position was a similar role working the same roster on the same money. The employee was familiar with this business as the owners of her current employer were on good terms with her potential future employer. The employee was offered the position. A contract of employment was provided to her.
At the same time the Applicant was also…

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 Kelly Group (Administration) Pty Ltd

Details

AGLC: Kelly Group (Administration) Pty Ltd [2023] FWC 2212
Case: [2023] FWC 2212
Decision Date: 4 SEPTEMBER 2023

CaseChat Overview and Summary

The matter involved Kelly Group (Administration) Pty Ltd, an administrator, seeking to vary an order pertaining to redundancy payments under the Fair Work Act 2009. The Fair Work Commission, acting in its general protective jurisdiction, was the forum for the dispute. The primary issue before the Commission was whether it had the authority to vary an order concerning redundancy payments that had already been paid to employees. The Commission had to determine if the legislation permitted such a variation, particularly in light of the fact that the redundancy payments had been settled prior to the application for variation.

The Fair Work Commission examined the legislative framework, specifically focusing on section 563 of the Fair Work Act. This section allows for the variation of orders if it is just and equitable to do so. The Commission considered whether the circumstances of the case warranted a variation, given that the redundancy payments had already been disbursed. The Commission also weighed the implications of the variation on the employees who had already received the payments. After careful deliberation, the Commission concluded that it did not have the authority to make such a variation, as it would be inequitable to undo the settlement of the payments.

Consequently, the Commission dismissed the application to vary the order concerning the redundancy payments. The decision underscored the importance of adhering to the principles of fairness and equity in employment law matters. The final orders confirmed that the original order regarding the redundancy payments remained unchanged, and no variation would be made in light of the payments already paid to the employees.

Orders