The Trustee for Discovery Trust T/A Aussie Concrete Products

[2017] FWC 6079

[2017] FWC 6079

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

The Trustee for Discovery Trust T/A Aussie Concrete Products

(C2017/5034)

COMMISSIONER HUNT BRISBANE, 20 NOVEMBER 2017

Variation of redundancy pay application.

1. The Trustee for Discovery Trust T/A Aussie Concrete Products (Aussie Concrete) has made application pursuant to s.120 of the Fair Work Act 2009 (the Act) in relation to a redundancy payment otherwise due to its former employee, Mr Thomas Robertson. Aussie Concrete is seeking from the Fair Work Commission (the Commission) that the redundancy pay be reduced to nil on the basis that it had allegedly obtained acceptable alternative employment for Mr Thomas.

1. Mr Robertson opposes the application on the basis that the alternative employment was not acceptable due to the requirement for increased hours and workload.

[3] Section 120 of the Act provides as follows:

‘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, FWC may determine that the amount of redundancy pay is reduced to a specified amount (which may be nil) that 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.’

1. On 1 November 2017 I instructed my Associate to issue a direction to Aussie Concrete to provide material relevant to Mr Robertson’s hours of work in the role he performed, the hours of work required in the roles that were offered to him, and a detailed list of duties required to be performed in the various roles.  The parties were advised that upon receipt of the material, a hearing would be conducted and that their attendance in person would be required.  The parties were notified of the likely date of the hearing and were offered a hearing outside of normal business hours, if requested.

1. On the material before the Commission, it was apparent that there were contested facts between the parties, and cross-examination of Mr Thomas and a representative of Aussie Concrete would need to occur for the Commission to objectively determine the application.

1. The application was listed for hearing on 15 November 2017.  On 13 November 2017, Ms Taylor, Human Resources Manager of Aussie Concrete contacted my chambers seeking leave to attend the hearing by telephone or video link on medical grounds and advised that she could support her request with medical evidence.   Aussie Concrete is located in Hemmant, QLD, a distance of approximately 21km from the Commission’s Brisbane premises.

1. I instructed my Associate to seek the medical evidence proffered by Ms Taylor and advised her that if the Commission were to grant permission to her to give evidence by telephone, another representative of Aussie Concrete would need to attend in person.  I considered this to be appropriate given the very close proximity of the applicant to the Commission.

1. On the morning of 15 November 2017, Ms Taylor wrote to my chambers enquiring what would happen in the event Aussie Concrete did not attend the hearing as she had been unable to arrange for a representative to attend. 

1. My Associate advised Ms Taylor that if Aussie Concrete failed to attend the hearing, it would be conducted in the absence of the applicant, and it may be dismissed for want of prosecution.  Aussie Concrete was also invited to withdraw the application if it had decided not to press it. 

1. Neither Ms Taylor nor another representative of Aussie Concrete attended the hearing.  Ms Taylor did not provide any medical evidence to support her request to attend by telephone.  Mr Robertson appeared at the hearing on his own behalf and was advised that if Aussie Concrete did not provide an acceptable reason for non-attendance, the Commission may dismiss the application.

1. Aussie Concrete has not made any contact with the Commission to explain the reasons for non-attendance by any of its representatives at the hearing.  Aussie Concrete was on notice that if a representative failed to attend the hearing, the consequence may be that the application is dismissed.

1. As Aussie Concrete has failed to comply with a direction of the Commission, has failed to attend a hearing and and has failed to make contact with the Commission, I have decided to determine the application on the papers.

1. Section 587 of the Act provides as follows:

“587      Dismissing applications

(1)       Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a)       the application is not made in accordance with this Act; or

(b)       the application is frivolous or vexatious; or

(c)       the application has no reasonable prospects of success.

Note:   For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2)       Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a)       is frivolous or vexatious; or

(b)       has no reasonable prospects of success.

(3)       The FWC may dismiss an application:

(a)       on its own initiative; or

(b)       on application.”

1. After considering all of the material, I have decided to dismiss the application pursuant to s.587(1)(c) of the Act.  Aussie Concrete has demonstrated an unwillingness to prosecute its own application and consequently I find that the application has no reasonable prospects of success.

1. As a consequence, no orders pursuant to s.120 of the Act will be made and any redundancy pay that may be owed to Mr Robertson should be paid in accordance with the Act. Mr Robertson may elect to seek assistance of the Fair Work Ombudsman.

1. The application is dismissed.

COMMISSIONER

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