Mater Misericordiae Limited T/A Mater

[2024] FWC 2322

[2024] FWC 2322

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.120—Redundancy pay

Mater Misericordiae Limited T/A Mater

(C2024/5521)

DEPUTY PRESIDENT DOBSON BRISBANE, 2 SEPTEMBER 2024

Variation of redundancy pay

1. This decision concerns an application by Mater Misericordiae Limited T/A Mater (the Applicant) under section 120 of the Fair Work Act 2009 (the Act) to vary the redundancy pay owing to an employee, Mr Daniel McGreevy (the Respondent).

1. The Respondent has been employed by the Applicant for approximately 6 years and 11 months, entitling him to $19,228.76 in redundancy payment.

1. The Applicant submitted that the Respondent had been offered a suitable alternative position, being a permanent position that is classified higher than his current substantive position under the applicable Enterprise Agreement. The Applicant therefore submits the Respondent will not experience any reduction to their current wage or terms and condition of employment. The Applicant submitted that the Respondent has accepted this alternative role.

1. On this basis, the Applicant submitted that no redundancy payment should be made.

1. The Commission served the application on the Respondent on 15 August 2024 as follows:

“Dear Parties

Reference is made to the above matter which has been allocated to Deputy President Dobson. All further correspondence directed to the Fair Work Commission (the Commission) in respect of this matter is to be sent to Deputy President Dobson’s Chambers at the contact details below, copying in the other parties to this matter.

Directions

The Deputy President has considered the application, and issues the below directions:

1.   The Applicant is to advise how many employees were employed by the Applicant at the time of the Respondent’s acceptance of the role. Please do so by no later than 4:00pm (AEST) 16 August 2024.

2.   The Respondent, Mr Daniel McGreevy, is directed to file and serve a written response to the attached application to vary redundancy pay, copying in the Applicant, by no later than 4:00pm (AEST) 19 August 2024. This can be done either using the Form F1 (found on the Commission’s website) or by a written document (using Microsoft Word or PDF)”

1. The Commission sent a further email to the Respondent on 16 August 2024 as follows:

“Dear Parties

The Deputy President has further considered this application. The earlier directions are vacated, and the following directions are issued:

1.   The Applicant is required to file with the Commission and serve on the Applicant, submissions and any evidence upon which the Applicant intends to rely, in support of its application. Please do so by no later than 4:00pm (AEST) 22 August 2024.

2.   The Respondent, Mr Daniel McGreevy, is directed to file with the Commission and serve on the Applicant, a written response to the application and the further submissions made by the Respondent, and any evidence in which you intend to rely, by no later than 4:00pm (AEST) 29 August 2024. This can be done either using the Form F1 (found on the Commission’s website) or by a written document (using Microsoft Word or PDF).”

1. The Applicant filed submissions in line with the directions, the Respondent did not respond.

1. The Applicant has confirmed in correspondence to the Commission that the new employment contract is offered on the basis that the Respondent’s continuity of employment with the Applicant remains unbroken.

1. In all of the circumstances I am satisfied that it is appropriate to exercise power to reduce the redundancy amount.

1. I have determined that the redundancy payment should be reduced to an amount of $0. An Order to that effect is issued in conjunction with this decision.

DEPUTY PRESIDENT

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