Perth North Metro Medicare Local Ltd

[2013] FWC 8439

[2013] FWC 8439

FAIR WORK COMMISSION

DECISION

AND

REASONS FOR DECISION

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

Perth North Metro Medicare Local Ltd
(C2013/6130)

COMMISSIONER CLOGHAN PERTH, 25 OCTOBER 2013

Ms Nadia Lee - variation of redundancy pay.

[1] On 24 September 2013, Perth North Metro Medicare Local Ltd (Applicant or Employer) made application to the Fair Work Commission (Commission) pursuant to s.120 of the Fair Work Act 2009 (FW Act) to vary the redundancy pay due to Ms N Lee (Ms Lee or Employee) as a consequence of the Employer obtaining other acceptable employment.

[2] The application was the subject of a conference on 21 October 2013. The Employer was represented by Ms Cork. Ms Lee attended as the affected Employee.

[3] The Employer is in the primary healthcare industry.

[4] The Employee commenced employment with the Employer on or around November 2011. On or around January 2012, the Employee was appointed a Band 6, Primary Health Education Officer and Team Leader.

[5] On 1 March 2013, the Employer notified Ms Lee that her position was being abolished. Ms Lee was given two options. In the first instance, Ms Lee was offered the newly created position of Primary Health Education Officer with no change to her existing contract of employment. Ms Lee was also advised to review other vacant positions within the organisation. Should Ms Lee adopt this course of action, the Employer advised that it would make application to the Commission to vary the redundancy pay to Ms Lee in view of finding alternative employment.

[6] The alternative option was for Ms Lee to be paid her redundancy entitlements pursuant to the Osborne Park GP Network Ltd Collective Workplace Agreement 2009 and all other accrued entitlements including “time off in lieu”.

[7] The Employee accepted the new position of Primary Health Education Officer, signed her contract of employment on 14 March 2013 and commenced in the role on 1 April 2013.

[8] On 20 May 2013, the Employee communicated with the Employer advising that she was entitled to a level of redundancy pay and requested that the Employer refer the matter to the Commission to determine the appropriate level of redundancy pay, if any.

[9] At the conclusion of the conference on 21 October 2013, I provided Ms Lee with the opportunity to advise the Commission by 4:00 pm Wednesday 23 October 2013 whether she wished for the application to be heard and determined. No communication was received from the Employee.

RELEVANT STATUTORY FRAMEWORK

[10] Section 119 specifies the entitlement of the employees.

[11] Section 120 provides:

“(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.”

CONSIDERATION AND CONCLUSION

[12] Having considered the statutory provisions, the information contained in the application and at the conference on 21 October 2013, I am satisfied that, in accordance with s.120(1)(b)(i) of the FW Act, the Employer has obtained acceptable employment for the Employee and that I should exercise my discretion pursuant to s.120(2) of the FW Act and reduce the redundancy pay to nil. An order will be issued to reflect this decision and reasons for decision.

COMMISSIONER

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