Rsea Pty Ltd v Dexter Tuba-Ang
[2015] FWC 5857
•1 OCTOBER 2015
| [2015] FWC 5857 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.120—Redundancy pay
RSEA Pty Ltd
v
Dexter Tuba-Ang
(C2015/4569)
COMMISSIONER SPENCER | BRISBANE, 1 OCTOBER 2015 |
Variation of redundancy pay
Introduction
[1] This Decision relates to an application filed pursuant to s.120 of the Fair Work Act 2009 (Cth) (the Act). The application has been made by RSEA Pty Ltd (the Applicant/Employer). The Applicant has applied to the Fair Work Commission (the Commission) seeking that the redundancy entitlement of Mr Dexter Tuba-Ang (the Respondent/Employee) be reduced to nil.
[2] The Applicant submitted that the amount of the redundancy payment should be reduced, as it had made an offer of other acceptable employment to the Respondent, which the Respondent declined. The Applicant submitted it is not making the application because the business is unable to pay the Respondent his redundancy entitlements, but, for the above reasons (the provision of other acceptable employment) pursuant to s.120(1)(b)(i).
[3] Directions were issued for the filing of material. The Applicant and Respondent filed their submissions and evidence. The Applicant was provided an opportunity to provide any material in reply by 6 August 2015. On 13 August 2015, the Applicant sought an extension of 3 additional days to provide the material in reply. The extension was granted. No material in reply was received by the Applicant by the extended timeframe. On 26 August 2015, the Applicant was provided a further opportunity to provide material in reply, and was requested to confirm whether they wished to proceed with the application. The Applicant confirmed on 9 September 2015 that they wished to proceed with the application on the material filed to date. Both parties consented to the mater being dealt with on the papers on the basis of the material already provided.
[4] Whilst not all submission and evidence filed in this matter have been referred to, all of such have been considered.
Relevant legislation
[5] The National Employment Standards (NES) prescribe the minimum entitlements to redundancy pay pursuant to s.119 of the Act:
- 119 Redundancy pay
Entitlement to redundancy pay
(1) An employee is entitled to be paid redundancy pay by the employer if the employee’s employment is terminated:
(a) at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or
(b) because of the insolvency or bankruptcy of the employer.
Note: Sections 121, 122 and 123 describe situations in which the employee does not have this entitlement.
Amount of redundancy pay
(2) The amount of the redundancy pay equals the total amount payable to the employee for the redundancy pay period worked out using the following table at the employee’s base rate of pay for his or her ordinary hours of work:
Redundancy pay period | ||
Employee’s period of continuous service with the employer on termination | Redundancy pay period | |
1 | At least 1 year but less than 2 years | 4 weeks |
2 | At least 2 years but less than 3 years | 6 weeks |
3 | At least 3 years but less than 4 years | 7 weeks |
4 | At least 4 years but less than 5 years | 8 weeks |
5 | At least 5 years but less than 6 years | 10 weeks |
6 | At least 6 years but less than 7 years | 11 weeks |
7 | At least 7 years but less than 8 years | 13 weeks |
8 | At least 8 years but less than 9 years | 14 weeks |
9 | At least 9 years but less than 10 years | 16 weeks |
10 | At least 10 years | 12 weeks |
[6] The application has been made pursuant to s.120(1)(b)(i) of the Act which provides:
- 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.
(emphasis added)
Background
[7] The Respondent had been employed on a full-time basis, working 38 hours per week as a Warehouse/Retail Assistant at the Applicant’s Acacia Ridge branch. The Respondent stated his salary was $39,988 gross per annum, based on $769 per week. The Applicant’s material indicated that the Respondent’s salary was $39,998.40 per annum (equating to $769.20 per week). According to the application, the Respondent had worked for the Applicant from 14 April 2010 to 1 July 2015, a total of 5 years and 2 months. The Respondent stated he commenced work for the Applicant in March 2010.
[8] On 29 June 2015, the Applicant held a meeting with the Respondent, regarding the restructure of its business operations. At that meeting, the Applicant informed the Respondent that his position of Warehouse/Retail Assistant at the Acacia Ridge branch would be made redundant. The Applicant also informed the Respondent that the position of Retail Assistant at the Morningside branch had been deemed to be an alternative suitable position for redeployment for the Respondent. The position was offered to the Respondent.
[9] On 30 June 2015, the Applicant provided written notification of the Respondent’s termination of employment and provided details of the offer for redeployment from the Acacia Ridge branch to the Morningside branch.
[10] The letter, dated 30 June 2015, stated as follows:
“…
Dear Dexter,
Notification of Termination Due to Redundancy
As per our recent discussions, RSEA Pty Ltd (“RSEA or “we”) has made a decision to restructure its operations, to develop a more cost effective business structure given the economic challenges faced by RSEA. Due to this change, unfortunately your current Warehouse/Retail Assistant role at the Acacia Ridge store will cease to exist and as a result, this position will become redundant.
At our meeting on 29 June 2015, we discussed all relevant information resulting in this workplace change, including the nature of the change and the expected effects on your current position. We also discussed the redundancy process and measures to mitigate the effect of your redundancy.
You were also informed that RSEA had reviewed other positions within the company to ascertain whether there was a suitable position to which you may be redeployed. I then informed you of a suitable position of Retail Assistant at the Morningside branch that you could be redeployed into, which is the only suitable position available at this time. In order to finalize the restructure, we require that you provide a response to me in writing by close of business on Tuesday the 30th June 2015. Should you not respond, we will take this to mean you do not wish to accept the offer of redeployment.
Details of the Retail Assistant position are set out below:
1. Commencement date in the role of Retail Assistant is 1st July 2015
2. The position will report to (name omitted) – Morningside Branch Manager
3. Your annual salary will remain unchanged and be $39,998.40 per annum plus superannuation.
4. All other employment conditions will remain the same, as set out in your current contract of employment.
Please note, your current Warehouse/Retail position will be made redundant on 30 June 2015. As such, it’s imperative that you consider and advise us whether you wish to accept or reject our offer of redeployment. Should you decline redeployment into the Retail Assistant position, your employment will unfortunately be terminated effective close of business 30 June 2015 and RSEA will lodge an application with the commission to vary your redundancy pay. RSEA will be in contact with you in relation to their decision.
On behalf of RSEA, we greatly appreciate all of yours efforts during your time with the business, and do hope that you will consider remaining with us in the new role offered.
Please do not hesitate to speak with either Human Resources or me in relation to any of the above or attached at any time.
Yours faithfully,
Lee Hughes
South QLD Manager”
[11] On 30 June 2015, the Respondent sent an email to the Applicant refusing the offer of redeployment. The email, sent at 12:15pm, stated as follows:
“Hi Lee and Pauline
As requested, I am providing a written confirmation that I am declining the redeployment to the Morningside store.
Thank you.
…”
[12] The Respondent’s employment was terminated on 1 July 2015.
Summary of the Applicant’s submissions
[13] The Applicant submitted that they conducted a review of its Acacia Ridge branch in June 2015 to develop a more cost effective business structure, given the economic challenges it faced. In this review, the Applicant identified that the position of Warehouse/Retail Assistant at the Acacia Ridge branch was redundant.
[14] The Applicant submitted that it had reviewed other positions in the business to ascertain whether there was a suitable available position. The Applicant offered the Respondent the role of Retail Assistant at its Morningside branch.
[15] The Applicant submitted that the difference in travel to Morningside is 18.2km from the Acacia Ridge branch and 23.8km from the Respondent’s home.
[16] The Applicant provided the particulars of the Retail Assistant position as follows:
- Commencement date in the role from 1July 2015;
- The position would report to (name omitted) – Morningside Branch Manager
- The annual salary would remain unchanged at $39,998.40 per annum plus superannuation.
- All other employment conditions would remain the same, as set out in the Respondent’s current contract of employment.
[17] The Applicant contended that the Respondent was given a period of 24 hours to consider the offer of redeployment.
[18] The Applicant submitted that the Respondent declined the offer of redeployment at 12:15pm on 30 June 2015 by email, but that he earlier had verbally advised Ms Pauline Cucia (Employee Relations Manager) that “he would decline the offer of redeployment as he enjoyed warehouse duties and did not want to perform retail assistant duties 100% of the time”.
Summary of the Respondent’s Submissions
[19] The Respondent later provided in his submissions that he was employed at RSEA Acacia Ridge as a Warehouse Controller and that his primary job entailed dispatching and receiving goods, to the extent of:
“(a) Sending orders to customers out;
(b) Forklift driving of goods, around the warehouse and on to/off trucks;
(c) Loading and unloading trucks with goods;
(d) Following up goods that have not been received, or, excess goods;
(e) Contacting customers to collect their orders;
(f) Undertaking credits and returns;
(g) Following up discrepancies and variances within orders, credits and returns;
(h) Clean and clearing the warehouse, in association with safe work practices;
(i) Arranging merchandise within the store when required (ensuring the stock is well presented);
(j) Occasionally required to undertaking stocktake at certain times of the year.”
[20] The Respondent submitted that, with respect to the duties in (d), (e), (f) and (g), these comprised approximately 40% of his daily duties, with the remaining 60% being within the warehouse collectively involving goods.
[21] The Respondent submitted that on 29 June 2015, he was advised in a meeting that his position was being made redundant. The Respondent further submitted that he was offered alternative employment, effective 1 July 2015, at the Morningside office of RSEA.
[22] The Respondent submitted that the role at the Morningside office was “primarily a sales position, in part with retail, and not Warehouse control related”.
[23] The Respondent submitted that he was not able to make the decision immediately and required time to process what had been raised during the meeting. The Respondent further submitted that on Tuesday, 30June 2015, Mr Lee Hughes, Queensland South Manager of the Applicant, approached the Respondent to ask what the Respondent’s position on the offer of redeployment was. The Applicant submitted that he told Mr Hughes that he was declining the offer because of family commitments.
[24] The Respondent submitted that the Applicant’s offer of redeployment at the Morningside branch does not fall under the definition of “acceptable” pursuant to s.120(1)(b)(i) of the Act.
[25] The Respondent submitted the position was an unreasonable distance from the current location, and home equating to a distance of 22 kilometres. The Respondent further submitted that he would have had to drive 22.8 kilometres through peak hour traffic each morning and afternoon, which would place restrictions on his lifestyle, including:
- Increased petrol costs (an extra $30.60 per week or $1591.60 per annum)
- The loss of up to 1.5 hours due to travel time per day
- Significant and systematic disruption of family routine
[26] The Respondent contended that he had not been made privy to the hours or conditions offered in the alternative position at Morningside. The Respondent accepted that he was informed at the meeting, held on 29 June 2015, that the pay would remain the same. The Respondent also submitted that he was informed that the alternative Morningside position would be a retail position, different from his usual occupation as a Warehouse Controller.
[27] The Respondent argued that the alternative position would cause him and his family to incur hardship, due to increased petrol costs, increased travel time, disruption to routine, and increased day care expenses.
[28] The Respondent submitted that the alternative position offered by the Applicant did not come under the definition of acceptable employment in accordance with the Act, and on that basis, the entitlement to severance pay due to redundancy should not be reduced.
[29] The Respondent relied on the case of Vicstaff Pty Ltd T/A Stratco v Bradley May; Malcolm McFerran 1, in which Commissioner Bissett held as follows:
“[29] The determination of whether or not alternative employment is acceptable must be determined objectively and not subjectively from the perspective of the employer or employees. That the alternative employment may be rejected does not objectively make it unacceptable nor does the fact that the employment was offered make it, by virtue of the offer, acceptable. Further, that one of the persons out of a group may have accepted the employment does not make the employment acceptable for the others in the group. The reasons for the acceptance of alternative employment are many and varied and general conclusions should not be drawn from a particular circumstance.
[30] It is therefore incumbent upon the employer (Vicstaff) in this matter to demonstrate that the alternative employment is acceptable taking into account all matters relevant in such a consideration. Had the alternative work been considered acceptable to the individuals one imagines they would have accepted the work offered.”
[30] The Respondent submitted that the factors of the increased distance affecting his ability to pick up his daughter, the increased cost of petrol, and the significant variation of his current employment, when combined, “highlight[ed] the mindset of the employee that was conveyed to the employer: that it was unreasonable due to petrol cost, distance and time.”
[31] The Respondent further submitted that the Applicant did not offer to him any travel “support” and it was concerning to the Respondent that the length of time for the Respondent to make and prepare for such a change was not sufficient.
[32] The Respondent submitted as follows:
“It would not be unreasonable to hypothesise that if travel support had been offered and a moderate variation of hours provided, the respondent might have considered it. However… the only time they had to discuss the offer was over the space of one night.”
Consideration
[33] An application pursuant to s.120 has a number of elements, of which the Commission must be satisfied, prior to issuing an Order, to vary redundancy pay.
[34] Firstly, the wording of s.120 is that an entitlement to redundancy pay must exist, in order for the Commission to consider varying that redundancy pay entitlement 2. Where there is no entitlement under s.119 there can be no order to reduce the “entitlement” pursuant to s.1203.
[35] An entitlement to redundancy pay under s.119 arises where an employee’s employment is terminated either at the employer’s initiative, because the employer no longer required the job done by the employee, or to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or because of the insolvency or bankruptcy of the employer.
[36] For the purposes of this application, the Commission is satisfied that the Respondent has an entitlement to redundancy pay under s.119, as the Applicant no longer required the job, done by the Respondent, to be done by anyone, and that this is not due to the ordinary and customary turnover of labour, or because of the insolvency or bankruptcy of the Applicant.
[37] As the Respondent had been employed by the Applicant for between 5 and 6 years, his redundancy entitlement is 10 weeks wages. It then needs to be considered whether a variation of the redundancy pay for offering other acceptable employment, is warranted.
Other Acceptable Employment
[38] The Applicant stated they have obtained other acceptable employment for the Respondent pursuant to s.120(1)(b)(i) of the Act.
[39] The Commission must consider the submissions and evidence regarding any alternate employment to enable the Commission to assess the “acceptable” nature of that employment.
[40] Vice President Lawler in Datacom Systems Vic Pty Ltd v Rasiq Khan; Siddharth Desai 4 summarised the principles relating to the variation of redundancy pay and acceptable alternative employment as follows:
“[8] In NUW v Tontine Fibres [2007] AIRCFB 1016 (Tontine) a Full Bench of the AIRC considered the meaning of the expression “acceptable alternative employment” in a redundancy provision in an enterprise agreement. It was common for enterprise agreements to reflect award provisions and contain redundancy entitlements that could be reduced if the employer obtained acceptable alternative employment (or some variant of that expression). The Full Bench observed:
“[23] It is well established... that the concept of acceptable alternative employment is to be determined objectively. As noted by a Full Bench in Australian Chamber of Manufacturers v Derole Nominees Pty Ltd:
“What constitutes “acceptable alternative employment” is a matter to be determined, as we have said, on an objective basis. Alternative employment accepted by the employee (and its corollary, alternative employment acceptable to the employee) cannot be an appropriate application of the words because that meaning would give an employee an unreasonable and uncontrollable opportunity to reject the new employment in order to receive redundancy pay; the exemption provision would be without practical effect.
Yet, the use of the qualification “acceptable” is a clear indication that it is not any employment which complies but that which meets the relevant standard. In our opinion there are obvious elements of such a standard including the work being of like nature; the location being not unreasonably distant; the pay arrangements complying with award requirements. There will probably be others.” 5
[24] The onus of establishing that the alternative employment in question is acceptable rests with the applicant employer. In order to establish whether the alternative employment obtained by the employer is acceptable it is necessary to have regard to such matters as pay levels, hours of work, seniority, fringe benefits, workload and speed, job security and other matters (including the location of the employment and travelling time). ...”
[9] Other employment does not cease to be “acceptable” merely because it is on terms that are less advantageous to that of the terminating position. Tontine makes it clear that there are matters of degree involved.”
(emphasis added)
[41] Vice President Lawler also summarised the principles regarding the entitlement to and variation of redundancy pay, and the relevant provisions of the Act, as follows:
“[23] In summary:
- The purpose of the redundancy entitlement conferred by s.119 is primarily to compensate the employee for loss of non-transferrable credits, especially long service leave.
- It is not the intention of s.119 to fully compensate the employee in all or even most cases. The specified amounts are manifestly inadequate for that purpose.
- The redundancy entitlement in s.119 has no “income maintenance” purpose and is not intended to address the requirement to search for another job and/or to tide over an employee during a period of unemployment albeit that the it should be regarded as having a minor component referable to the inconvenience and hardship associated with redundancy.
- To the extent that alternative employment is “obtained” by the outgoing employer, matters referred to Tontine (obvious including elements such as the work being of like nature; the location being not unreasonably distant; the pay arrangements complying with award requirements) are relevant in assessing whether that employment is “acceptable” which is in turn relevant in assessing what, if any, reduction is appropriate. [Note that in Tontine, the alternative employment was with the same employer and there was no loss of continuity or non-transferrable credits. Nevertheless, the alternative employment, while assessed as “acceptable” still had material disadvantages that rendered it appropriate to award a portion of the entitlement.]
- Where there is no continuity of employment or recognition of long service and other non-transferrable credits that were not paid out by the outgoing employer then the employer should be entitled to the majority of the s.119 entitlement. To the extent that the alternative employment is disadvantageous when compared to the previous employment that will also sound in lesser reduction than might otherwise have been the case.” 6
[42] In the current case, on the material filed, there was nothing to indicate that there was not to be continuity of employment if the Respondent accepted the Morningside position.
[43] In considering “acceptable alternative employment” in the context of a dispute, Senior Deputy President Watson in Feltex Australia Pty Ltd v Textile, Clothing and Footwear Union of Australia 7, stated:
“I accept the proposition advanced by Feltex Australia that acceptable alternative employment is not necessarily identical employment and that the AIRC has previously found alternative employment to be acceptable notwithstanding inconvenience to employees and some detrimental alteration to the terms and conditions of employment.”
[44] The Respondent did not accept the alternative full-time employment offer of Retail Assistant in Morningside, obtained by the Applicant, and offered to him.
[45] The Applicant submitted it offered acceptable alternative employment on 29 June 2015 verbally, and by letter on 30 June 2015. In line with the case authority above, matters such as pay levels, hours of work, seniority, fringe benefits, workload and speed, job security, work being of a like nature, the location being not unreasonably distant, and pay arrangements have to be considered.
[46] It is clear that the Respondent rejected the Retail Assistant Morningside position in his email dated 30 June 2015.
[47] The Respondent did not indicate the reasons for rejecting the offer in his email. The Respondent submitted he informed Mr Hughes that he was declining the offer due to family commitments. The Applicant submitted that the Respondent informed Ms Cucia that he was declining the offer as he enjoyed warehouse duties and did not want to perform retail assistant duties 100% of the time.
[48] In his submissions, the Respondent gave his reasons for rejecting the offer on the basis that it would require additional travel to and from work, involving 22.8 kilometres of travel each morning and afternoon, with associated costs and implications for his family routine.
[49] The parties did not make submissions on whether there would be any compensation for the additional travel and related costs. On the material filed, these were issues that were not specifically raised at the time of refusal and therefore not further discussed. The distance of the job and the related travel costs are factors to be taken into consideration as to whether the Morningside position was acceptable.
[50] Commissioner Wilson, in Workco Limited T/A Workco Ltd 8, reduced an employee’s redundancy entitlement to nil, even though the alternative position involved a “backward step” in career and additional travel. However, in that case, the travel involved was intrastate and not, as in this case, a regular part of everyday travel to and from work.
[51] It is considered that the distance of an additional 45.6 kilometres each day is not unreasonable. However, it is accepted that the increase in travel would give rise to some additional costs, to be met by the Respondent and inconvenience to the Respondent and would have had a daily impact on the Respondent’s expenses and family arrangements.
[52] The Respondent relied on the Decision of Commissioner Bissett in Vicstaff 9, in which she rejected the application to vary redundancy pay. Commissioner Bissett considered that the employment offered was “too far removed in terms of hours and the nature of the work currently (prior to the jobs being abolished) being performed”, and that in addition, whilst she noted that the employees “would remain on their current rate of pay there are questions over the difference in wages that would be received taking into account that overtime”10. In this case, there was to be no change to the Respondent’s rate of remuneration.
[53] The Respondent contended that the work offered to him at Morningside was not of a like nature. The Respondent stated that his role at Acacia Ridge comprised of approximately 60% of duties “being within the warehouse collectively involving goods”. The non-warehouse related duties he estimated he was performing 40% of the time at Acacia Ridge included following up goods, contacting customers, undertaking credits and returns and following up discrepancies and variances within orders, credits and returns.
[54] The Applicant stated that the Respondent’s position at Acacia Ridge was as Warehouse/Retail Assistant, and that he was offered the alternative role of Retail Assistant in Morningside. The Respondent stated his position title was Warehouse Controller. The letter to the Respondent dated 30 June 2015 refers to the Respondent’s position as “Warehouse/Retail Assistant”. The email from the Respondent on 30 June declining the offer has “Warehouse Controller” in the Respondent’s email signature. It is noted that the Applicant submitted that the Respondent stated to Ms Cucia that he enjoyed warehouse duties and did not want to perform retail assistant duties 100% of the time.
[55] It is considered that the Respondent did perform retail duties in his position at Acacia Ridge, and there would be an amount of overlap between duties performed in the roles at Acacia Ridge and Morningside. Although there is likely to be some differences in the performance of daily duties between the roles, they are not sufficiently distinct or too far removed.
[56] It is noted that the discussions were held with the Respondent on 29 June 2015, in which the Respondent was offered the alternative Retail Assistant position. The letter, notifying the Applicant in writing of the redundancy and setting out the offer of alternative employment was dated 30 June 2015, and this letter asks for a response in writing by close of business that same day, as his current position was to be made redundant on that day, 30 June 2015. In this condensed timeframe, there appears to have been little time for consideration of the alternative offer, nor opportunity for discussions between the parties surrounding, for example, any additional compensation for travel time or flexibility regarding hours of work. However, the Respondent did not seek any discussion in those matters to potentially make the job acceptable to him.
[57] The factors identified in the case authorities above have been considered. While the Respondent would have been required to undertake additional travel, it is considered that the location of the alternative employment was not unreasonably distant; the pay levels and conditions were to remain unchanged; and the work was of a like nature, involving retail duties that the Applicant performed in his Acacia Ridge role. However, it is also considered that the Applicant would have incurred expenses and inconvenience for additional travel.
[58] The Applicant, despite being provided with an extension to do so, did not provide any material in reply to the Respondent’s submissions regarding the reasons for the refusal of the position, and accordingly the Respondent’s material has not been challenged by the Applicant. In particular, the Applicant has not provided a reply to the issues raised by the Respondent regarding the hours of work, and the possibility of travel support, relevant to the travel time and hardship, and also elements the Respondent raised in terms of lifestyle. However, the Applicant noted in their submissions that there was a difference in travel distance and that the role would change from Warehouse/Retail Assistant to Retail Assistant.
Conclusion
[59] The alternative employment offered to the Respondent and all of the circumstances of the matter have been taken into account. It is considered, in accordance with s.120(1)(b)(i) of the Act, that the discretion should be exercised pursuant to s.120(2) to reduce the amount of redundancy pay, on the basis that acceptable alternative employment, in terms of the position of Retail Assistant at Morningside, had been obtained by the Applicant and offered to the Respondent.
[60] The Applicant offered to the Respondent other acceptable employment at the same rate of remuneration and conditions as his previous role, and involving retail duties which the Respondent performed in his previous role, and that employment offer was rejected by the Respondent. The variation in the redundancy payment recognises the difference in travel time and associated costs and the difference in the roles, and the short time frame that the Respondent had to make the decision, given the immediate impact on his family, but it is not concluded that the differences in the roles make the employment unacceptable.
[61] Pursuant to s.119(2), an employee has an entitlement to 10 weeks redundancy for at least 5 years but less than 6 years service. For the aforementioned reasons, the discretion pursuant to s.120(2) is exercised, to reduce the amount to five (5) weeks redundancy payment, at the rate of pay at the date of the final redundancy notification.
[62] The amount, of five (5) weeks redundancy pay, less the appropriate tax, is payable within 14 days from the date of this Decision.
[63] In its application, the Applicant sought to reduce the Respondent’s notice period to 2 weeks. For over 5 years service, the Respondent has an entitlement to 4 weeks’ notice as per s.117 11. It is noted that the applicable amount of notice of termination under s.117 of the Act cannot be reduced by virtue of s.120 of the Act.
[64] I Order accordingly.
COMMISSIONER
1 [2010] FWA 3141.
2 Application by CAE Australia Pty Ltd [2012] FWA 7992 per Watson VP at [13].
3 Ibid; also refer M & S Dickson [2011] FWA 5206 per Lewin C.
4 [2013] FWC 1327 at [8] – [9].
5 (1990) 140 IR 123 at pp128.
6 [2013] FWC 1327 at [23].
7 PR974699 at [89].
8 [2015] FWC 6014.
9 [2010] FWA 3141.
10 Ibid at [49].
11 The Respondent is under age 45.
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