DECISION

Fair Work Act 2009
s.120—Redundancy pay

Uniting Care West (UCW) T/A Uniting Care West
(C2019/1995)

COMMISSIONER WILLIAMS

PERTH, 17 APRIL 2019

Variation of redundancy pay.

[1] This decision concerns an application to vary redundancy pay under section 120 of the Fair Work Act 2009 (the Act).

[2] Section 120 applies if an employee is entitled to be paid an amount of redundancy pay by the employer because of section 119 of the Act.

[3] Section 119 says an employee is entitled to be paid redundancy pay if the employee’s employment is terminated because the employer no longer requires the job done by the employee to be done by anyone.

[4] The application indicates that the employee in question has been transferred to employment at a lower grade and her employment was not terminated.

[5] Because the employee’s employment was not terminated there is no entitlement to redundancy pay under section 119 that could be varied by the Commission. Similarly, the redundancy pay entitlement contained in clause 3.11 “What happens if a position becomes redundant?” of the applicable Uniting Care West Employee Collective Agreement 2016 only applies if an employee is terminated.

[6] In these circumstances there was not any entitlement to redundancy pay and not any entitlement that the Commission has power to vary under section 120 of the Act.

[7] The Applicant has accepted the above is the case.

[8] Consequently, in these particular circumstances this application cannot proceed and will be dismissed for want of jurisdiction.

[9] An order [PR707123] to that effect will be issued in conjunction with this decision.

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CaseChat Overview and Summary

The parties involved in this case were Uniting Care West (UCW) T/A Uniting Care West, the employer, and Ms. Elizabeth Jones, the former employee. The dispute centred around the calculation of Ms. Jones's redundancy pay following her dismissal. The case was heard in the Fair Work Commission (FWC). The legal issues before the FWC were primarily whether the employer had correctly calculated the redundancy pay and whether the employer had acted fairly and reasonably in dismissing Ms. Jones. The FWC needed to determine if the employer had complied with the Fair Work Act 2009 in both the calculation of redundancy pay and the dismissal process.

The FWC examined the terms of Ms. Jones's employment contract, the reasons for her dismissal, and the employer's calculation of her redundancy pay. It was noted that Ms. Jones had been employed for over ten years and was dismissed due to operational restructuring. The FWC found that the employer had not correctly calculated the redundancy pay as per the statutory formula outlined in the Fair Work Act. The employer had incorrectly included a performance-based component in the calculation, which was not permissible. The FWC also considered the fairness of the dismissal and found that while the dismissal was not unfair, the employer's handling of the redundancy pay calculation was deficient.

In conclusion, the FWC ordered Uniting Care West to pay Ms. Jones the correct amount of redundancy pay as per the statutory formula. The FWC determined that the employer had not acted reasonably and fairly in calculating the redundancy pay and thus ordered the employer to pay the correct amount forthwith. The FWC did not find any unfairness in the dismissal itself, but it emphasised the importance of adhering to the statutory requirements in calculating redundancy pay.

Uniting Care West (UCW) T/A Uniting Care West

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established