SD & NM Loft Trust T/A Country Coast Construction Pty Ltd v Mr Anthony Smith

[2014] FWC 5493

[2014] FWC 5493

FAIR WORK COMMISSION

DECISION

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

SD & NM Loft Trust T/A Country Coast Construction Pty Ltd
v
Mr Anthony Smith
(C2014/1021)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 14 AUGUST 2014

Variation of redundancy pay - reduced to nil.

[1] In this matter, SD & NM Loft Trust T/A Country Coast Construction Pty Ltd(“the Company”) made application seeking relief from its statutory obligation to make a redundancy payment under s.119 of the Fair Work Act 2009 (“the Act”) to Mr Anthony Smith (“the Employee”).

[2] The application is made pursuant to s.120(2) of the Act which vests in the Commission a discretion to reduce or remove an entitlement to redundancy pay should the Commission consider it appropriate to do so. Section 120(2) provides as follows:

(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] Section 120(2) of the Act (as set out above) applies where the terms of s.120(1) are met:

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.

[4] The Company has made application on the basis that it contends that it cannot pay the amount of redundancy pay otherwise due to the Employee.

[5] The Company provided various financial records of the business and the Company’s (external) accountant gave evidence at the hearing. The evidence relied upon for determining that the Company cannot pay the redundancy amount to which Mr Smith is entitled, and my express reasons for decision, reside in the transcript of proceedings of the hearing. There is no public interest in disclosing the business’ financial details.

Conclusion

[6] On the basis of the evidence before me, I have found that the Company (for the purposes of s.120(2) of the Act) has no obligation in respect of the Employee under s.119 of the Act. That is, any obligation on the part of the Company to pay redundancy pay to the Employee is reduced to nil.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr S. Loft, of the Applicant

Mr A. Smith, employee

Hearing details:

By telephone

2014

12 August

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