Oscar Oscar Group Services Pty Ltd v Lees - [2012] FWA 3901

[2012] FWA 3901

FAIR WORK AUSTRALIA

DECISION

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

Oscar Oscar Group Services Pty Ltd
v
Ms Alyce Lees
(C2011/6109)

COMMISSIONER ASBURY

BRISBANE, 4 MAY 2012

Application to vary redundancy pay for other employment - case law and principles re exercise of discretion to reduce redundancy pay - whether employer provided acceptable alternative employment - application refused.

[1] This is an application under s.120 of the Fair Work Act 2009 (the Act) by Oscar Oscar Pty Ltd seeking an order to reduce the redundancy pay to which Ms Alyce Lees is entitled. The grounds upon which the application is made are that another position has been tailor made to suit Ms Lees and has not been accepted.

[2] Directions were issued setting the terms of s.120 of the Act and requiring (in some detail) that the parties file submissions, witness statements or documents in support of, and in response to, the application. Oscar Oscar filed a document in the form of a letter addressed: “To whom it May concern,” signed by its payroll officer Ms Webb who was also present at the hearing of this matter. The Company also filed a bundle of material comprising letters of offer and position descriptions for the original and the proposed alternative position. Ms Webb’s involvement in the circumstances and incidents relied on by Oscar Oscar as the basis for the application, was minimal. No other material was filed on behalf of Oscar Oscar. Ms Lees filed an outline of submissions and a witness statement appending relevant documentation, as required by the Directions. The position descriptions and letters of offer filed by Oscar Oscar were identical to some of the documents filed by Ms Lees. However, Ms Lees filed additional documents. All of Ms Lees’ material was served on Oscar Oscar as required and none of the documents provided by Ms Lees were challenged by Oscar Oscar. Accordingly I have relied on those documents.

[3] At the hearing, Oscar Oscar sought to be represented by Counsel. Ms Lees who was representing herself, objected. The issues in dispute were narrow and based on a position description relating to the position occupied by Ms Lees that was made redundant, and the position she was offered as an alternative to the redundancy.

[4] Permission was not granted for the Company to be represented by Counsel on the basis that the matter was not unduly complex and it would not be unfair given that Ms Lees was not represented and had taken all of the necessary steps to file and serve her material in accordance with the Directions.

[5] Notwithstanding that Oscar Oscar did not comply with the Directions, Ms Webb was permitted to adopt the letter under her signature and to give evidence on the basis of its contents. Ms Webb was also able to cross-examine Ms Lees, and was granted an adjournment to enable Counsel to prepare her to conduct…

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

Case: [2012] FWA 3901
Decision Date: 4 MAY 2012

CaseChat Overview and Summary

In the matter of Oscar Oscar Group Services Pty Ltd versus Lees, the dispute arose from the respondent's application to the Fair Work Commission to have the redundancy pay for other employment varied. The applicant, Oscar Oscar Group Services Pty Ltd, sought to challenge the decision of the Commission to deny the application. The legal issues before the court were primarily concerned with the principles and case law governing the exercise of the Commission's discretion to reduce redundancy pay and whether the employer had provided an acceptable alternative employment to the respondent. The court was required to determine whether the employer had acted reasonably and in good faith in offering the alternative employment and if the Commission's decision to deny the application was legally sound.

The court examined the relevant legislation and case law, focusing on the principles that guide the exercise of discretion to reduce redundancy pay. It was established that the employer's primary obligation was to provide an alternative employment that was genuinely available and suitable for the employee. The court considered the evidence presented by the employer and the employee regarding the alternative employment offered. The court concluded that the employer had not provided an acceptable alternative employment, as the position offered did not meet the necessary criteria of being genuinely available and suitable for the employee. As a result, the court found that the employer's decision to reduce the redundancy pay was unreasonable and in breach of the statutory requirements. Consequently, the court upheld the Commission's decision to deny the employer's application to vary the redundancy pay for other employment.

The court's reasoning was based on the established principles and case law concerning the exercise of discretion to reduce redundancy pay. The court found that the employer had not met its obligations to provide an acceptable alternative employment, and therefore, the Commission's decision to deny the application was legally sound. The court emphasised the importance of adhering to the statutory requirements when offering alternative employment and the need for the employer to act reasonably and in good faith. As a result of the court's decision, the application to vary the redundancy pay for other employment was refused.

Orders