The Grice Family Trust T/A Unique Window Services v Mr Eli Sorenson

[2014] FWC 6055

[2014] FWC 6055

FAIR WORK COMMISSION

DECISION

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

The Grice Family Trust T/A Unique Window Services
v
Mr Eli Sorenson
(C2014/4223)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 3 SEPTEMBER 2014

Variation of redundancy pay - obligation to pay 11 weeks varied to 4 weeks.

[1] In this matter, The Grice Family Trust T/A Unique Window Services(“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 Eli Sorenson (“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, being 11 weeks’ pay.

[5] The Company provided various financial records of the business and the Company’s (external) accountant gave evidence at the hearing.

[6] At the conclusion of the proceedings I determined that the Company’s obligation regarding the Employee should be reduced to the equivalent of 4 weeks’ pay.

[7] The evidence relied upon for determining that the redundancy amount should be reduced, and my express reasons for decision, reside in the transcript of proceedings of the hearing. There is no public interest in disclosing the Company’s financial details.

Conclusion

[8] On the basis of the evidence before me, in accordance with s.120(2) of the Act, I determine that the amount of redundancy pay that the Company would otherwise be required to pay to the Employee (under s.119 of the Act) be reduced to the equivalent of 4 weeks’ pay.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr S. Grice, of the Applicant

Mr E. Sorenson, the Employee

Hearing details:

Brisbane

2014

2 September

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