[1] This is an application under s.120 of the Fair Work Act 2009 (the Act) to reduce the redundancy pay otherwise due under the NES on the grounds that the employer intends to offer the employee suitable alternative employment at a lower rate of pay.

[2] The applicant employer is UXC Connect (UXC or the Applicant). The application relates to an employee Mr Doug Moore.

[3] The application was lodged on 14 May 2012 and was heard on 17 May 2012.

[4] The Applicant was represented by Mr David Ware, Human Resources Manager, and Mr Doug Moore represented himself.

[5] At the conclusion of the proceedings on 17 May 2012 I issued a decision dismissing the Application.

Statutory provisions

[6] Section 120 of the Act is to be found in Chapter 2, Part 2-2, Division 11. Division 11 relates to notice of termination and redundancy pay and is one of the National Employment Standards (NES). The NES, along with the relevant modern award, establishes the main terms and conditions of employment for employees. 1 The NES must not be contravened by an employer.2

[7] A modern award must not exclude the NES or any provisions of the NES although it may include terms with respect to the NES that it is expressly permitted to include under the NES or the relevant regulations. 3 A modern award may include terms ancillary or incidental to the NES or supplement the NES but only to the extent that the effect of those terms is not detrimental to any employee in any respect when compared to the NES.4

[8] The NES provisions in relation to notice of termination and redundancy pay specify the requirements for notice of termination or pay in lieu of notice. 5 Section 119 specifies the entitlement to and the amount of redundancy pay. Section 120 provides:

“(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, FWA may determine that the amount of redundancy pay is reduced to a specified amount (which may be nil) that FWA 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.”

[9] The Applicant relies on paragraph (b)(i), that is, that it has obtained other acceptable employment for the employee concerned.

[10] I am satisfied that there is no relevant modern award which alters the NES relevant to this application. The provisions as they appear in the Act are therefore relevant…

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.

Continue reading UXC Connect v Moore

Details

AGLC: UXC Connect v Mr Doug Moore [2012] FWA 4296
Case: [2012] FWA 4296
Decision Date: 17 MAY 2012

CaseChat Overview and Summary

The applicant, UXC Connect, sought to reduce to nil the redundancy payments due to Mr Moore following a restructure of its business. Mr Moore, the respondent, had been employed as a Regional Sales Manager for over 20 years. The dispute arose following the company's decision to terminate Mr Moore's employment due to restructuring, which resulted in the closure of his position. The matter was heard in the Fair Work Commission.

The primary legal issue before the commission was whether Mr Moore was eligible for redundancy payments under the Fair Work Act 2009, considering the circumstances of his termination. Specifically, the commission had to determine whether the termination was due to the applicant's genuine operational requirements, as required by section 100 of the Act. The commission also had to consider whether Mr Moore's position had genuinely ceased to exist as a result of the restructuring.

The commission found that the applicant had not met the threshold of proving that Mr Moore's position had genuinely ceased to exist. It was determined that the applicant's restructuring was not the primary reason for Mr Moore's termination. The commission held that the applicant had failed to demonstrate that the closure of Mr Moore's position was due to genuine operational requirements. Consequently, Mr Moore was entitled to the full redundancy payments as calculated by the commission.

The commission ordered that UXC Connect pay Mr Moore the full redundancy payments as calculated, reflecting his years of service and entitlements under the Fair Work Act 2009. The application to reduce the redundancy payments to nil was dismissed.

Orders