The Royal Society for the Prevention of Cruelty to Animal, Western Australia T/A RSPCA WA

[2020] FWC 6484

[2020] FWC 6484

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.120—Redundancy pay

The Royal Society for the Prevention of Cruelty to Animal, Western Australia T/A RSPCA WA
(C2020/7889)

COMMISSIONER WILLIAMS PERTH, 3 DECEMBER 2020

Variation of redundancy pay.

[1] This decision concerns an application by The Royal Society for the Prevention of Cruelty to Animal, Western Australia T/A RSPCA WA (RSPCA or the Applicant) to reduce the amount of redundancy pay to which an employee, Ms Deida Nicholls (Ms Nicholls), is entitled under section 119 of the Fair Work Act 2009 (the Act).

[2] Ms Nicholls was invited to make a submission regarding this matter but has not provided any response by the set deadline of 20 November 2020.

The legislation

[3] Sections 119 and 120 of the Act are relevant for the purposes of this decision and are set out below.

“Subdivision B—Redundancy pay

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.

Note: Sections 121, 122 and 123 describe situations in which the employee does not have this entitlement.

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 least 7 years but less than 8 years	13 weeks
8	At least 8 years but less than 9 years	14 weeks
9	At least 9 years but less than 10 years	16 weeks
10	At least 10 years	12 weeks

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.

(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) The amount of redundancy pay to which the employee is entitled under section 119 is the reduced amount specified in the determination.”

Consideration

[4] The Applicant has explained the background to the application and provided detail of the previous role held by Ms Nicholls compared with the new role in answer to question 2.1 of the form F45A Application to vary redundancy pay.

[5] Considering the information provided by the Applicant I am satisfied the new employment that Ms Nicholls accepted is other acceptable employment for the purposes of s.120 of the Act.

[6] Consequently, I will grant the application and reduce the amount of redundancy pay to Ms Nicholls to the amount of $3,304.77.

[7] An order [PR725095] to that effect will now be issued.

Printed by authority of the Commonwealth Government Printer

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