Mandurah Safety and Training Services Pty Ltd v Edward Dalecki

[2011] FWA 8698

[2011] FWA 8698

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.120—Redundancy pay

Mandurah Safety and Training Services Pty Ltd
v
Edward Dalecki
(C2011/6648)

COMMISSIONER WILLIAMS PERTH, 14 DECEMBER 2011

Application to vary redundancy pay.

[1] This is an application by Mandurah Safety and Training Services Pty Ltd (the Applicant) made pursuant to section 120 of the Fair Work Act 2009 (the Act).

[2] The Applicant seeks to reduce the amount of redundancy pay that they will be required to pay to their employee Mr Dalecki under section 119 of the Act.

Background

[3] At the hearing the Applicant was represented by Mr G. Day the Managing Director and Mr Dalecki appeared on his own behalf. Mr Day gave evidence regarding the factual background and the situation as follows.

[4] Mr Dalecki has been employed for over five years and currently is employed in a full-time position with the Applicant however due to poor sales which have been ongoing for a period of six months the company has made the decision that they are no longer able to retain that full-time position and this position will be made redundant in the new year.

[5] This issue has been discussed with Mr Dalecki and the company has arranged for Mr Dalecki to take up a new position, with effectively the same duties, on a part-time basis for four days per week. The new part-time position will include the same entitlements in terms of use of the company vehicle, fuel cards and a mobile phone and Mr Dalecki will be paid 80% for working four days a week of the salary that Mr Dalecki was paid in the previous full-time position.

[6] The Applicant has chosen to approach this situation by making the full-time position redundant and creating a new part-time position. The existing full-time position will cease to exist at the end of January 2012 and Mr Dalecki has agreed to accept a new contract in the part-time position as of 1 February 2012.

[7] The Applicant says accordingly they have obtained other acceptable employment for Mr Dalecki and so the amount of redundancy pay that will become payable to him at the end of January 2012 by virtue of section 119 of the Act should be reduced.

[8] The Applicant submitted that in the circumstances the amount of redundancy pay should be reduced by 80%.

[9] Mr Dalecki confirmed that what Mr Day had explained was correct and accepts that what the company proposes is fair and reasonable in the circumstances.

Consideration

[10] The relevant section of the Act provides as follows:

s. 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, FWA may determine that the amount of redundancy pay is reduced to a specified amount (which may be nil) that FWA 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.

[11] I accept on the evidence that in this case the Applicant employer has obtained for Mr Dalecki other acceptable employment. I find it is appropriate that the amount of redundancy pay which, on the above facts, in due course will be required to be paid under section 119 of the Act to Mr Dalecki is reduced by 80 %.

[12] An order to that effect will be issued in conjunction with this decision.

COMMISSIONER

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