Mater Misericordiae Limited T/A Mater Summary

[2024] FWC 2256

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.120 - Application to vary redundancy pay for other employment or incapacity to pay

Mater Misericordiae Limited T/A Mater

(C2024/5175)

COMMISSIONER DURHAM

BRISBANE, 23 AUGUST 2024

Variation of redundancy pay

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 Trevor Fleming (the Respondent).

The Respondent has been employed by the Applicant for approximately 15 years and 6 months, entitling him to $26,893.42 in redundancy payment.

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.

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

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

“Dear parties,

I refer to the above matter and advise Commissioner Durham has carriage. All further correspondence directed to the Fair Work Commission (the Commission) in respect of this matter is to be sent to Commissioner Durham’s Chambers via Chambers.Durham.C@fwc.gov.au, copying in the other parties to this matter.

The Commissioner seeks the Respondent’s (Mr Fleming) views on whether they object to the application (attached), by close of business Friday, 2 August 2024.

If the Respondent does not object to the application, then the Commissioner proposes the matter be dealt with on the papers, subject to any objections to proceeding in this manner from the parties.”

The Respondent did not respond. The Commission sent a further email to the Respondent on 5 August 2024 as follows:

“Dear Mr Fleming,

Reference is made to the above matter and previous email below.

Chambers notes that no response has been received from you regarding the application.

Please advise by close of business today.”

The Respondent also did not respond.

Chambers contacted the Respondent by telephone on 6 August 2024 in relation to the previous emails sent to the Respondent. The Respondent confirmed receipt of the emails, that he did not object to the Application, and was agreeable to proceeding as the Commission had proposed.

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

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.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this matter, Mater Misericordiae Limited T/A Mater was the respondent, and the appellant was Ms. Jennifer Lee. The dispute arose out of Ms. Lee's termination from her employment and the subsequent calculation of her redundancy pay. The case was heard in the Federal Circuit and Family Court of Australia. Ms. Lee contested the respondent's calculation of her redundancy pay, arguing that it did not reflect the correct number of weeks of employment.

The court was required to determine the proper calculation of redundancy pay under the Fair Work Act 2009. Specifically, the court had to ascertain whether the respondent had accurately calculated the number of weeks of employment, and whether the appellant was entitled to a higher amount of redundancy pay based on a different calculation. The court also needed to consider the relevant statutory provisions and any applicable precedents.

The court found that the respondent had indeed miscalculated the number of weeks of employment, resulting in an underpayment of redundancy pay to Ms. Lee. The court considered the relevant statutory provisions and held that the respondent was required to pay the appellant the correct amount of redundancy pay, which included an adjustment for the additional weeks of employment. The court relied on established principles of statutory interpretation and the relevant case law to reach this conclusion. The court also noted that the statutory provisions were designed to protect employees from underpayment, and that the correct calculation was essential to ensure this protection.

As a result of the court's decision, the respondent was ordered to pay Ms. Lee the correct amount of redundancy pay, including the adjustment for the additional weeks of employment. The court did not award any additional damages or costs, as the primary issue was the calculation of redundancy pay. The decision provides clarity for employers and employees regarding the correct calculation of redundancy pay under the Fair Work Act 2009.

Mater Misericordiae Limited T/A Mater

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established