Queensland Police Citizens Youth Welfare Association T/A PCYC Queensland
[2025] FWC 324
•5 FEBRUARY 2025
| [2025] FWC 324 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.120—Redundancy pay
Queensland Police Citizens Youth Welfare Association T/A PCYC Queensland
(C2024/8287)
| DEPUTY PRESIDENT DOBSON | BRISBANE, 5 FEBRUARY 2025 |
Variation of redundancy pay
This decision concerns an application by Queensland Police Citizens Youth Welfare Association (QPCYWA) under section 120 of the Fair Work Act 2009 (the Act) to vary the redundancy pay owing to an employee, Ms Renee Elizabeth Penny (Penny).
Ms Penny commenced employment with QPCYWA on 26 October 2017 as a casual employee and became permanent on 4 November 2019. Ms Penny was engaged as a Service Manager at Gleneagle OSHC until her role became redundant on 13 December 2024 due to the closure of that service. Having been employed for the relevant period of 5 years and 1 month, it would entitle her to $16,381.80 in redundancy payment.
Legislation
Section 119 of the Act provides a statutory right to redundancy pay in amounts calculated based on an employee’s continuous service with the employer.
Section 120 of the Act provides as follows:
“(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.”
Background and Submissions
QPCYWA submitted that Ms Penny had been offered a suitable alternative position, being a permanent position as a Service Manager at Mt Warren Park, a larger Service entitling her to a higher salary than her substantive position under the applicable Enterprise Agreement. QPCYWA further submitted that as a consequence, Ms Penny would not experience any reduction to her current wage or terms and condition of employment. Ms Penny declined the offered role due to the distance and inconsistency with her childcare responsibilities. On this basis, QPCYWA submitted that no redundancy payment should be made.
My chambers wrote to Ms Penny on 4 December 2024 and asked her to provide a response to the QPCYWA application. There being contested facts surrounding the consultation process and the offered roles, I issued directions for the filing of an outline of submissions and supporting material/evidence. Having regard to the views of the parties I determined to proceed by way of determinative conference held in Brisbane on 13 January 2025. Both Ms Whale of QPCYWA and Ms Penny gave evidence at the hearing.
Ms Penny submitted that the alternative role offered by the Applicant was not suitable because it was unreasonably far and was not a reasonable distance to travel, citing a travel directions screenshot that indicated the commute was over 45 minutes. Ms Penny further submitted that the new role was not consistent with her childcare obligations. Ms Penny provided that having newly returned from maternity leave she was responsible for dropping her child off to childcare, and her partner was not able to assist as he commences work before the childcare facility opens. Ms Penny submitted that the redeployment offer did not constitute acceptable employment.
QPCYWA submitted that during the period of consultation with Ms Penny, the existing Mt Warren Park service manager had resigned, and they had determined that this was a suitable opportunity for Ms Penny. Following the concerns raised by Ms Penny, QPCYWA was prepared to accommodate Ms Penny’s obligations by removing the split shifts and with additional flexibility to working hours that would work around Ms Penny’s childcare obligations.
QPCYWA submitted that after Ms Penny was not satisfied and had rejected the offer, seeking instead to be made redundant, QPCYWA had further revised its offer however it did not have an opportunity to put that further offer to Ms Penny because Ms Penny refused to consult any further. QPCYWA submitted that they would have permitted Ms Penny to determine which two full days she wanted to work in order to accommodate her childcare needs and that due to the size of the service she would not be required to open the service on all of her days and could instead arrange alternate staff to do that. QPCYWA asserts that this demonstrates it had obtained acceptable employment for Ms Penny.
At the hearing, Ms Penny stated that she had not considered the offers being put forward by QPCYWA because she had already decided to accept another role with another employer that was closer to home. Ms Penny gave evidence that she was first consulted about her position at Service Manager at Gleneagle OSHC becoming redundant on 16 October 2024 and she applied for another role external to QPCYWA on 29 October 2024 which she was subsequently offered on 11 November 2024. It was QPCYWAs’ evidence that Ms Penny advised her Area Manager, Ms Hart on 30 October 2024 that she was not interested in any of the opportunities offered to her and that she was not interested in any further consultation.[1]
Ms Penny advised QPCYWA that she would be taking long service leave from 8 November 2024 up until her last day of employment on 13 December 2024.[2] I was satisfied based on the evidence given by both Ms Penny and Ms Whale, that QPCYWA did not approve Ms Penny’s leave however they felt they had no choice but to accommodate it because Ms Penny proceeded to take it anyway. Further, Ms Penny gave evidence that she commenced working for her new employer, whilst she was on long service leave, for the period 23 November 2024 until her employment with QPCYWA came to an end on 13 December 2024. Ms Penny gave evidence that she did not have approval to have a second job, despite acknowledging that approval was required for her to do so. I note that consequently, Ms Penny was paid twice during the period 23 November 2024 to 13 December 2024 (a period of about 3 weeks). In addition, whilst Ms Penny was given 8 week’s notice of her redundancy, she was also paid out an additional 4 week’s notice.
In respect of the additional travel time Ms Penny says would be required if she had of taken the Mt Warren Park role, I am satisfied based on the evidence provided by Ms Whale, that QPCYWA were prepared to have this absorbed in QPCYWA time. Such action would negate any negative impact of additional travel time because the travel time would have occurred at QPCYWA’s expense. Additionally, I find that QPCYWA had offered that the Mt Warren Park role would have accommodated flexibility around working hours to benefit Ms Penny as well as a higher level of remuneration in recognition of it being a larger service. Being a larger service meant it also carried additional staff, which would on QPCYWAs evidence, which I accept, accommodate having others to step in and support Ms Penny having more flexible working hours.
Consideration
In the 2004 Redundancy Case,[3] the Full Bench of the Australian Industrial Relations Commission confirmed the purpose of redundancy pay is to compensate an employee for matters such as the trauma associated with the termination of employment, the loss of non-transferable credits such as sick leave, the loss of security and seniority, lower job satisfaction and diminished social status and conditions.
In applications such as these, the onus lies on the employer company seeking the exemption from redundancy payment obligations and the discretion exists for the Commission to make an order to reduce or remove an employee’s statutory entitlement to redundancy pay to an amount, which may be nil, that it considers appropriate.
The Full Bench of the Commission in Australian Commercial Catering Pty Ltd v Powell and Togia; Powell v Australian Commercial Catering Pty Ltd[4] outlines the approach that I intend to follow in considering QPCYWA’s application to reduce Ms Penny’s redundancy pay:
“[35] In considering an application made by an employer under s.120, the Commission must first consider whether either of the circumstances set out in paragraphs (a) or (b) of s.120(1) applies. Consideration under s.120 is enlivened upon an application being made by the employer for a reduction in the amount of redundancy pay otherwise payable under s.119. In dealing with such an application, the Commission must first determine whether the pre-conditions for the application of the section set out in s.120(1) are satisfied - that is, that the employee the subject of the application has an entitlement under s.119 to redundancy pay, and that the employer has either obtained other acceptable employment for the employee or cannot pay the redundancy entitlement.
[36] As was pointed out in the Full Court decision, “The origin of s 120 lies in the decision of the Full Bench of the Conciliation and Arbitration Commission in Termination, Change and Redundancy Case (1984) 8 IR 34 to introduce an entitlement to severance pay for all employees under federal awards whose employment had been terminated because of redundancy”.[5] Cases decided in relation to award provisions established pursuant to those test case provisions are therefore relevant in the consideration of s.120.
[37] In relation to s.120(1)(b)(i), whether alternative employment obtained by the employer is “acceptable” is to be determined objectively, not by reference to whether the employment is subjectively acceptable to the employee.[6] The determination of whether alternative employment is acceptable requires an assessment and value judgment on the part of the decision-maker.[7] The employer “obtains” other acceptable employment when it acquires or gets the employment by its conscious, intended acts.[8]
[38] Once it is concluded that the preconditions in s.120(1) are satisfied so that s.120 is applicable, it will be necessary for the Commission to determine under s.120(2) whether the employee’s entitlement to redundancy pay under s.119 should be reduced and, if so, by how much. This requires the exercise of a broad discretionary power.[9] Any determination by the Commission for a reduced amount of redundancy pay then becomes the employee’s entitlement under s.119: s.120(3).”
Section 119(1)(a) of the Act
I am satisfied Ms Penny is entitled to be paid an amount of redundancy pay. Her employment was terminated by QPCYWA because it no longer required the Service Manager role at Gleneagle OSHC performed by Ms Penny to be done by anyone.
Section 120(1)(b)(i) of the Act
I am also satisfied QPCYWA obtained other acceptable employment for Ms Penny, in that it acquired or got the employment for her as a Service Manager at the Mt Warren Park OSHC by its conscious, intended acts.
Firstly, I am satisfied QPCYWA offer the Service Manager role at Mt Warren Park. The offer was a conscious, intended act which resulted in Ms Penny having suitable alternative employment there.
Secondly, I am satisfied the nature of the employment at Mt Warren Park is acceptable. The role was an equivalent role albeit a slightly larger centre which resulted in Ms Penny being offered a higher salary to that which she enjoyed at Gleneagle. In addition, Ms Penny’s additional travel time in the new role was to be reduced by absorbing it into working time at the Mt Warren Centre and in addition, QPYCWA offered to change split shift arrangements and working times to further accommodate Ms Penny’s needs.
Section 120(2) of the Act
Having concluded that s.120 of the Act is applicable, I must consider whether it is appropriate to reduce the amount of redundancy pay that is payable to Ms Penny. In all the circumstances of this matter, I consider I should. Ms Penny was aware approximately 2 months in advance that her employment would likely be terminated on the basis of redundancy. QPCYWA while initially not being able to identify an alternate role, was able to identify one which it offered to her during the consultation period prior to her substantive role no longer being required. It was Ms Penny who made the conscious decision to refuse to consider any offers made by QPCYWA and I am satisfied that the offer that was made was reasonable in all of its respects. Finally, I note Ms Penny was able to commence employment with another employer whilst she was on leave from QPCYWA on 23 November 2024.
Having regard to these matters and Ms Penny’s ability to earn an additional 7 weeks pay[10] up to and including her last day of employment with QPCYWA, I consider it appropriate to reduce Ms Penny’s redundancy pay to zero.
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.
DEPUTY PRESIDENT
Appearances
Ms Tarrant for the Applicant.
Ms Penny for herself.
Hearing
13 January 2025
In person/Video
Brisbane
[1] Digital Court Book (DCB) p.10.
[2] Ibid.
[3] (2004) 129 IR 155.
[4] [2016] FWCFB 5467.
[5] [2015] FCAFC 189 at [12].
[6] Clothing & Allied Trades Union of Australia v Hot Tuna Pty Ltd (1988) 27 IR 226; Clothing Trades Award 1982(1) [1990] AIRC 980; (1990) 140 IR 123.
[7] [2015] FCAFC 189 at [45].
[8] FBIS International Protective Services (Aust) Pty Ltd v Maritime Union of Australia [2015] FCAFC 90 at [20].
[9] Ibid at [21]; [2015] FCAFC 189 at [42], [60].
[10] Paragraph [11] of this decision.
Printed by authority of the Commonwealth Government Printer
<PR784028>
0
0
0