TAE Aerospace Pty Ltd v Mr David Vanner - [2025] FWC 953

[2025] FWC 953

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.120 - Application to vary redundancy pay for other employment or incapacity to pay

TAE Aerospace Pty Ltd
v

Mr David Vanner

(C2024/8558)

COMMISSIONER DURHAM

BRISBANE, 4 APRIL 2025

Variation of redundancy pay – whether acceptable alternative employment obtained – other employment found to not be acceptable – application dismissed

This decision concerns an application by TAE Aerospace Pty Ltd (TAE) in respect of redundancy payments to Mr David Vanner. This application is made under Section 120(1)(b)(i) of the Fair Work Act 2009. TAE have applied to reduce Mr Vanner’s redundancy entitlements to nil, on the grounds that they found suitable alternative employment for him, that he did not accept. Mr Vanner objects to the application on the grounds that the position offered was not acceptable.

I issued directions to the parties to file and serve submissions and materials on which they sort to rely. The parties were also asked for a timeline of events, a version of which each party provided separately.

Ms Deidre Roos-Korf, Group Chief People, Culture and Safety Officer for the ASDAM Group of Companies (ADSAM Group), Mr Sam Watts, Senior Manager of Maintenance, Repair and Overhaul, Rosebank Engineering Pty Ltd (RBE) and Ms Kellie Morris, Head of Human Resources for ADSAM filed witness statements in support of TAE’s application. Mr Vanner filed two submissions in support of his position — opposing the application.

Having had the opportunity to view the filed material, neither party sought to cross examine any witnesses and the parties advised that they were content for the matter to be dealt with on the papers.

Legislation / Statutory Framework

Section 119 of the Act states as follows:

“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.

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…

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] FWC 953
Decision Date: 4 APRIL 2025

CaseChat Overview and Summary

TAE Aerospace Pty Ltd (TAE) applied to the Fair Work Commission to reduce Mr David Vanner’s redundancy pay following his redundancy, on the grounds that they had found acceptable alternative employment for him, which he had refused. Mr Vanner opposed the application, contending that the role offered was not acceptable. The Commission was required to determine whether TAE had obtained acceptable alternative employment for Mr Vanner, within the meaning of section 120(1)(b)(i) of the Fair Work Act 2009. The Commission found that it was reasonable for Mr Vanner to have reached the conclusion that the role offered was not suitable. The application was dismissed.

Orders