MLG OZ Limited - [2025] FWC 1348

[2025] FWC 1348

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.120—Redundancy pay

MLG OZ Limited

(C2025/2412)

COMMISSIONER SCHNEIDER

PERTH, 21 MAY 2025

Variation of redundancy pay

This decision concerns an application made by MLG OZ Limited (MLG) to reduce the amount of redundancy pay to which an employee, Ms Ivy Jane Dewitt (Ms Dewitt), is entitled under section 119 of the Fair Work Act 2009 (Cth) (the Act).

The parties have provided written materials outlining their respective positions.

Having considered the evidence and submissions, I have determined that the application will be granted, and there will be a reduction in the redundancy payment to which Ms Dewitt is entitled to by 75%.

My reasons are as follows.

Background & Submissions

The parties were provided with the opportunity to provide written submissions in relation to the application and the matter was then determined on the papers.

MLG confirmed the following in relation to Ms Dewitt’s employment:

·   Ms Dewitt was employed for 1 year but less than 2 years as a Site Administrator on a Fly In Fly Out (FIFO) basis.
·   Ms Dewitt was originally employed on the Swiftsure Project in regional Western Australia.
·   Following the closure of that project, MLG offered to redeploy Ms Dewitt to the Evolution Haulage Project also in regional Western Australia.

MLG submitted that the position on the Evolution Haulage Project was also as a Site Administrator and Ms Dewitt has the required skill set and competency to complete the work as required.

There were no changes to Ms Dewitt’s salary and Ms Dewitt was still employed on a FIFO basis out of Perth. However, the roster, whilst still being the same roster, required a change of travel days to and from site.

Ms Dewitt opposed the application on the basis that the redeployment to the Evolution Haulage Project had a change of fly in and fly out days. This meant that Ms Dewitt would not be able to spend time with her partner who would be on an opposing work roster. Ms Dewitt submitted that this redeployment option was not suitable as it would damage her relationship with her partner.

Legislation

The relevant provision of the Act is set out below:

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

Consideration

It has generally been accepted by the Commission that the following factors should be considered in relation to section 120(b)(i):

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.

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Details

AGLC: MLG OZ Limited [2025] FWC 1348
Case: [2025] FWC 1348
Decision Date: 21 MAY 2025

CaseChat Overview and Summary

In the case of MLG OZ Limited, the primary issue before the court was whether the employer was obligated to pay the employee redundancy pay when the employee resigned and the employer subsequently claimed that there was no redundancy situation. The Fair Work Commission was the tribunal tasked with deciding this matter. The key legal issues revolved around the interpretation of redundancy pay provisions under the Fair Work Act and the circumstances under which an employer can assert that no redundancy situation existed.

The court examined the definition of redundancy and the process by which an employer must demonstrate that there was no redundancy situation. It considered whether the employer had followed the correct procedural steps and whether the employer's actions were reasonable and in good faith. The court also evaluated the employer's evidence and the circumstances leading up to the employee's resignation. Ultimately, the court found that the employer had not adequately demonstrated that there was no redundancy situation, and therefore, the employee was entitled to receive redundancy pay.

The court's reasoning highlighted the importance of procedural fairness and the employer's obligation to act in good faith. It underscored that the employer must provide clear and sufficient evidence to support their claim that no redundancy situation existed. The court's decision emphasised that the burden of proof lies with the employer in such disputes. The final outcome was that the employee was awarded redundancy pay, and the employer's claim was dismissed.

Orders