Ruah Community Services v Ms Robin Tonga

[2013] FWC 2819

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 Robin Tonga
(C2013/3781)

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 Robin Tonga (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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Ruah Community Services Pty Ltd sought to reduce the amount of redundancy pay owed to Ms Robin Tonga, an employee, on the grounds that she had been guilty of misconduct and therefore not entitled to the full redundancy pay. The Fair Work Commission (FWC) heard the matter and had to decide whether Ms Tonga's misconduct justified a reduction in her redundancy pay. The court's task was to examine the evidence regarding Ms Tonga's alleged misconduct and determine if the misconduct was severe enough to warrant a reduction in her redundancy pay entitlement.

The court found that the employer had not provided clear evidence of the alleged misconduct. The employer's case relied heavily on hearsay evidence and lacked concrete proof that Ms Tonga had engaged in the misconduct. The court noted that redundancy pay is a statutory entitlement designed to provide financial support to employees who lose their jobs through no fault of their own. Any reduction in this entitlement must be justified by clear and convincing evidence of misconduct. In this case, the employer failed to meet this burden of proof.

Consequently, the court ruled in favour of Ms Tonga and determined that the employer was required to pay her the full redundancy amount. The court emphasised the importance of employers providing clear and substantiated evidence when seeking to reduce an employee's redundancy pay due to alleged misconduct. The employer's failure to do so in this instance meant that Ms Tonga was entitled to her full redundancy pay.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established