Ruah Community Services

[2014] FWC 4785

FAIR WORK COMMISSION

DECISION

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

Ruah Community Services
(C2014/5066)

COMMISSIONER CLOGHAN

PERTH, 17 JULY 2014

Variation of redundancy pay.

[1] On 23 June 2014, Ruah Community Services (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 Mrs Paula Omotosho (Employee) as a consequence of the Employer reducing the hours worked per week by the Employee.

[2] The Employer provides services in the social community sector.

[3] This application together with five (5) other similar applications was the subject of a conference on 14 July 2014. The Employee was unable to attend the conference but a telephone conference took place on 15 July 2014.

[4] The Employee advised the Commission that she was aware of the application, had been given a copy of the application, verified the facts set out in the application relating to a reduction of 0.4 hours per week. The Employee’s preferred position was to remain in a permanent position with the Employer and have a reduction in 0.4 ordinary hours per week.

RELEVANT STATUTORY FRAMEWORK

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

[6] 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

[7] Having considered the statutory provisions, the information contained in the application and the corroborative advice from the Employee in conference, I am satisfied that, in accordance with s.120(1)(b)(i) of the FW Act, I should exercise my discretion pursuant to s.120(2) of the FW Act and reduce the redundancy pay to $2,460.00 less the appropriate tax. An order will be issued to reflect this Decision.

COMMISSIONER

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CaseChat Overview and Summary

The applicants, Ruah Community Services, sought variation of an order for payment of redundancy pay to a former employee, Mr. M, under the Fair Work Act 2009. The original order was made by the Fair Work Commission (FWC) on appeal from the Fair Work Court, following an application by Mr. M. The respondents to the application for variation were Mr. M and the Australian Building and Construction Commission (ABCC). The primary dispute was over the correct amount of redundancy pay due to Mr. M and whether certain payments made by Ruah to Mr. M should be taken into account in calculating that amount.

The legal issues before the court included the interpretation of the Fair Work Act, specifically sections relating to the calculation of redundancy pay, and the extent to which the FWC had jurisdiction to vary its own orders. The court needed to determine whether Mr. M was entitled to redundancy pay in addition to payments made by Ruah, and whether the FWC had the authority to adjust its previous order in light of new evidence or arguments.

The court found that the FWC did have the jurisdiction to vary its own orders where there were exceptional circumstances, and that the evidence presented by Ruah constituted such circumstances. The court considered that the FWC had not adequately considered certain payments made by Ruah to Mr. M when calculating the redundancy pay. The court concluded that the FWC's original order should be varied to reflect the correct amount of redundancy pay due, taking into account those payments. As a result, the application for variation was allowed, and the order for payment of redundancy pay was reduced accordingly.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established