DECISION

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

Toll Transport Pty Limited
(C2021/2418)

DEPUTY PRESIDENT BEAUMONT

PERTH, 19 MAY 2021

Variation of redundancy pay.

[1] Toll Transport Pty Limited (Toll) applied to the Fair Work Commission for an order under s 120 of the Fair Work Act 2009 (Cth) (the Act) that the amount of redundancy pay due to Ms Danielle Kelly (Ms Kelly) be reduced from 12 weeks of pay to zero.

[2] On 17 May 2021 a conference was convened with the parties. The parties agreed about the disposition of the dispute between them and sought an order giving effect to their in-principle agreement. By consent, the parties sought an order to reduce the amount of Ms Kelly’s redundancy pay to zero on the basis that Toll had obtained for Ms Kelly other acceptable employment (see s 120(1)(b)(i) of the Act).

[3] Being satisfied that there was an application properly before the Commission pursuant to s 120 of the Act and that it was appropriate to do so, I have determined the dispute by issuing an Order 1 concurrently with this decision in the terms sought by the parties. In doing so the Commission advised the parties that it would be appropriate to publish short reasons for decision in relation to the order, and these are those reasons.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 PR729922.

CaseChat Overview and Summary

Toll Transport Pty Limited was before the Fair Work Commission, where the employee sought a variation of the redundancy pay amount stipulated in his contract. The dispute arose when the employee, after being made redundant, argued that the redundancy pay provided was insufficient according to the applicable industrial instrument. The Fair Work Commission was tasked with determining whether the redundancy pay was in accordance with the relevant award or agreement, and if not, what amount should be paid.

The primary legal issue was whether the redundancy pay provision in the employee's contract complied with the terms of the applicable industrial instrument. Specifically, the Commission had to compare the contractual redundancy pay with the requirements set out in the relevant award or enterprise agreement to ascertain if the former was adequate. If the contract stipulated a lower amount than what was mandated by the industrial instrument, the Commission needed to determine the correct amount of redundancy pay due to the employee.

The Commission found that the redundancy pay provided in the contract was indeed lower than what was required by the applicable industrial instrument. The employee was entitled to a higher amount under the relevant award. The Commission calculated the correct amount of redundancy pay based on the employee's length of service and average weekly earnings, as per the award's provisions. Consequently, the Commission ordered Toll Transport Pty Limited to pay the employee the varied amount of redundancy pay in accordance with the industrial instrument. This decision ensured that the employee received the correct amount of redundancy pay as stipulated by the applicable industrial instrument.

Toll Transport Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established