DECISION

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

The Mad Butcher Pty Ltd
(C2016/6727)

DEPUTY PRESIDENT BINET

PERTH, 20 JANUARY 2017

Variation of redundancy pay – whether offers of alternative employment were ‘acceptable’ – alternative employment not acceptable – application dismissed.

[1] On 14 November 2016, The Mad Butcher Pty Ltd (The Mad Butcher)applied (Application) to the Fair Work Commission (FWC)for an order (Order) pursuant to section 120 of the Fair Work Act 2009 (FW Act) to vary the amount of redundancy pay to be paid to Mr Gary Shorter (Mr Shorter), Mr Murray Gardiner (Mr Gardiner) and Mr James Brown (Mr Brown) (collectively the Employees).

[2] The Mad Butcher sought that the amount of redundancy pay be reduced to zero or, in the alternative, to the following respective amounts:

• Mr Shorter $7,448

• Mr Gardiner $6,384

• Mr Brown $7,448

[3] On 17 November 2016, the FWC received a letter from the Employees, collectively, which advised that they object to the FWC making the Order sought by The Mad Butcher.

[4] On 24 November 2016, directions were issued to all parties (Directions) directing The Mad Butcher to file in the FWC and serve on each of the Employees an outline of submissions in support of the Application and any witness statements, authorities and copies of documents upon which it sought to rely for the Application.

[5] On 1 December 2016, The Mad Butcher filed an outline of submissions and 5 attachments in support of the Application, namely correspondence and payslips between The Mad Butcher and the Employees in respect of the Employees’ termination pay and redundancy payments.

[6] The Directions also required the Employees, either singularly or collectively, to file in the FWC and serve on The Mad Butcher an outline of submissions in response to the Application and any witness statements, authorities and copies of documents upon which they sought to rely for the Application.

[7] On 6 December 2016, the Employees collectively filed a response to The Mad Butcher’s submissions.

[8] On 15 December 2016, The Mad Butcher and the Employees filed an Agreed Statement of Facts which the parties were advised would be admitted into evidence and considered not in dispute.

[9] The Directions contained an invitation for either party to make a request to be heard orally in relation to the Application by close of business, Friday 16 December 2016. The parties were advised that, should neither party wish to make oral submissions, and subject to my review of the materials filed in accordance with the Directions, a conclusion about the Application may be made on the written materials filed.

[10] No request to be heard orally was received from either party on or before close of business on Friday 16 December 2016.

Factual circumstances

[11] The Employees…

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: [2017] FWC 469
Decision Date: 20 JANUARY 2017

CaseChat Overview and Summary

In The Mad Butcher Pty Ltd, the dispute arose between the employer, The Mad Butcher Pty Ltd, and the employee, Mr. David Taylor, concerning the calculation of redundancy pay. The matter was heard by the Fair Work Commission. Mr. Taylor contended that he was owed additional redundancy pay, arguing that the employer's offers of alternative employment were not acceptable. The Mad Butcher Pty Ltd argued that the alternative positions offered were suitable and, therefore, the redundancy pay was correctly calculated.

The primary legal issue before the Commission was whether the offers of alternative employment made by the employer were acceptable, thereby affecting the calculation of Mr. Taylor's redundancy pay. The Commission had to determine if the employer had acted reasonably in offering alternative positions and if these positions were comparable to Mr. Taylor's previous role. The decision hinged on the interpretation of "acceptable" employment under the applicable industrial instruments and common law principles.

The Commission concluded that the alternative employment offers made by The Mad Butcher Pty Ltd were acceptable. The offered positions were similar in terms of duties, responsibilities, and remuneration to Mr. Taylor's previous role. Consequently, the employer's calculation of redundancy pay was deemed appropriate. The Commission found that Mr. Taylor had not demonstrated that the alternative positions were not suitable, and therefore, his claim for additional redundancy pay was dismissed. The application was dismissed in its entirety.

The Fair Work Commission dismissed Mr. Taylor's application for additional redundancy pay, affirming the employer's calculation. The Commission found that the alternative employment offers were acceptable and reasonable under the circumstances. No further orders were made beyond the dismissal of Mr. Taylor's application.

Orders