Mater Misericordiae Limited T/A Mater v Tynan O'Connell

[2024] FWC 2093

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.120—Redundancy pay

Mater Misericordiae Limited T/A Mater
v

Tynan O’Connell

(C2024/4938)

COMMISSIONER SIMPSON

BRISBANE, 9 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 Tynan O’Connell (the Respondent).

The Respondent has been employed by the Applicant for approximately 11 years and 6 months, entitling him to $21,359.04 in redundancy payment.

The Applicant submitted that the Respondent had been offered a suitable alternative position for a 4-year fixed term with no reduction in hourly rate or other terms and conditions of employment under the applicable Enterprise Agreement. The new role commenced on 22 July 2024 and will cease on 30 July 2028. The Respondent 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 25 July 2024 as follows:

“Dear parties,
I refer to the above matter and confirm it has been allocated to Commissioner Simpson.
The Commissioner seeks that the Respondent (Tynan O’Connell) advise if there is any objection to the application to vary redundancy pay.”

The Respondent confirmed on 30 July 2024 that he consented to the reduction in redundancy pay as he had accepted the offered alternative employment:

“Hi! I’m just replying that I’m happy with new job offer and I don’t object the varying of the redundancy. Thankyou”

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.

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

The case before the Fair Work Commission involves Mater Misericordiae Limited T/A Mater, the Applicant, and Mr Tynan O'Connell, the Respondent. The Applicant sought to vary the redundancy pay owed to the Respondent, who had been employed for about 11 years and 6 months, resulting in an entitlement of $21,359.04 in redundancy payment. The basis of the application was that the Respondent had accepted a suitable alternative position offered by the Applicant. This new role was for a 4-year fixed term, with no reduction in hourly rate or other terms and conditions of employment as per the applicable Enterprise Agreement. The Respondent accepted this alternative employment, which started on 22 July 2024 and is set to end on 30 July 2028.

The legal issues at hand involved whether the acceptance of an alternative employment position by the Respondent justified a variation of the redundancy payment. The Applicant argued that since the Respondent accepted the alternative position, the redundancy payment should be reduced. The Respondent initially did not object to the application to vary the redundancy pay, confirming his acceptance of the new job offer. The Commission had to determine whether the Respondent's acceptance of the alternative employment and the conditions under which it was offered warranted a reduction in the redundancy payment.

The Commission concluded that the Respondent's acceptance of the alternative employment and the continuity of employment with the Applicant, as confirmed in the correspondence, justified a reduction in the redundancy payment. The Respondent's consent to the reduction in redundancy pay, along with the terms of the alternative employment, supported the Applicant's position. The Commission exercised its power under section 120 of the Fair Work Act 2009 to reduce the redundancy amount, determining that it was appropriate to reduce it to $0. Consequently, an Order to that effect was issued in conjunction with the decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established