Ruah Community Services v Ms Lesley Richards

[2013] FWC 2827

[2013] FWC 2827

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

Ruah Community Services
v
Ms Lesley Richards
(C2013/3801)

COMMISSIONER CLOGHAN PERTH, 8 MAY 2013

Variation of redundancy pay

[1] On 28 March 2013, Ruah Community Services (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 Lesley Richards (Employee) as a consequence of the Employer obtaining other acceptable employment.

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

[3] The Employer has lost funding for some of its services and the role carried out by the Employee, and three of her colleagues, no longer exists.

[4] The Employee and her relevant work colleagues were advised of the loss of funding and that the roles no longer existed.

[5] The Employer has obtained acceptable alternative employment for the Employee and her colleagues.

[6] This application together with three (3) other similar applications was the subject of a conference on 23 April 2013. The Employee attended the conference.

[7] 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 the new position and confirmed that the new position was acceptable alternative employment.

RELEVANT STATUTORY FRAMEWORK

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

[9] 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

[10] 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, the Employer has obtained suitable 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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