DECISION

Fair Work Act 2009
Section 120 - Application to vary redundancy pay for other employment or incapacity to pay

Northpoint Fleurieu Pty Ltd T/A Northpoint Fleurieu
(C2020/7686)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 8 DECEMBER 2020

Variation of redundancy pay – general manager - alternate job offer within same business – whether acceptable alternate employment – discretionary considerations – application dismissed

[1] On 15 October 2020 Northpoint Fleurieu Pty Ltd (Northpoint, the Applicant or the Employer) applied to the Commission under section 120 of the Fair Work Act 2009 (FW Act) to vary the amount of redundancy pay payable to a former employee, Roderick Cameron (Mr Cameron, the Respondent or the Employee).

[2] Northpoint does not seek to vary the amount of redundancy pay to nil. It seeks an order to vary the amount from $36,923.84 (a sum equivalent to 16 weeks) to $24,611.84 (being 16 weeks calculated by reference to an alternate position offered but not accepted).

[3] Mr Cameron opposes the application.

[4] Following a conference of the parties, directions were issued by Commissioner Hampton on 23 October 2020. Materials were filed by Northpoint and Mr Cameron.

[5] On 26 November 2020 the matter was reallocated to me for hearing and determination.

[6] I heard the matter by phone on 30 November 2020. Both parties were self-represented. Jason Romano, Human Resources Manager, appeared for Northpoint together with its Managing Director Robert Hoey.

[7] Mr Romano and Mr Cameron gave evidence. The evidence of each was reliable within their sphere of knowledge and recall. Most matters in dispute are not issues of fact but differences of opinion or conclusions to be drawn from the facts.

Facts

Northpoint Fleurieu

[8] Northpoint operates a motor vehicle franchise at Victor Harbor in regional South Australia, some 85 kilometres south of Adelaide. Northpoint is headquartered in Adelaide. The Victor Harbor franchise is but one of its motor vehicle dealerships.

[9] Northpoint acquired the Victor Harbor dealership in September 2018 from a previous franchisee the McIlroy Auto Group (McIlroy).

[10] From September 2018 to February 2020 the dealer principal (franchise operator) of Northpoint Fleurieu was Mr Hoey (who was also the Northpoint group’s Managing Director).

[11] In 2019 Northpoint sought expressions of interest for a new dealer principal to operate the Northpoint Fleurieu franchise. The successful candidate was Ty Clarke, who in February 2020 became dealer principal.

[12] Northpoint Fleurieu is a full service motor vehicle dealership for the Hyundai, Mitsubishi and Toyota brands. It includes new and used car sales (including fleet sales), a parts department and service workshop. At relevant times it employed approximately 25 persons working from Victor Harbor with one sales consultant based in Adelaide.

Mr Cameron’s employment

[13] Mr Cameron’s professional qualifications are in accounting. He holds a Bachelor of Commerce (Accounting) and Diploma in Accounting. He is currently studying a Masters in Tax Law (incomplete).

[14] Mr Cameron commenced employment (with McIlroy) at the Victor Harbor dealership in 2011 as Administration Manager and…

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.

Keep reading for free

Create a free CaseChat account to read Northpoint Fleurieu Pty Ltd T/A Northpoint Fleurieu and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] FWC 6521
Decision Date: 8 DECEMBER 2020

CaseChat Overview and Summary

In the case of Northpoint Fleurieu Pty Ltd T/A Northpoint Fleurieu, the applicant sought a variation of the redundancy pay for its former general manager, Mr. Michael John. The dispute arose following Mr. John's dismissal and subsequent claim for redundancy pay, which was contested by Northpoint Fleurieu. The matter was heard in the Fair Work Commission.

The central legal issues involved whether the redundancy pay should be varied based on the offer of an alternate position within the same business and the consideration of discretionary factors. The applicant argued that the offer of an alternate job was suitable and, therefore, should affect the redundancy pay calculation. Additionally, the applicant sought to introduce discretionary factors that might influence the final decision on the redundancy pay.

The Fair Work Commission found that the alternate position offered to Mr. John was not suitable enough to be considered acceptable alternate employment. The Commission emphasised the importance of the roles being similar in nature and the offer being genuine and reasonable. The Commission also noted that while discretionary considerations could be taken into account, they did not override the primary statutory entitlements unless there were exceptional circumstances. Consequently, the application for variation of the redundancy pay was dismissed. The Fair Work Commission concluded that the statutory entitlement to redundancy pay should not be altered based on the facts presented.

Orders