DECISION

Fair Work Act 2009
s.120—Redundancy pay

Visium Networks Pty Ltd
(C2018/6863)

COMMISSIONER GREGORY

MELBOURNE, 8 MARCH 2019

Variation of redundancy pay.

Introduction

[1] Visium Networks Pty Ltd (“Visium”) decided during the course of last year that it needed to change its staffing arrangements after one of its significant customers reduced its servicing requirements. As a consequence of that decision one of its employees, Mr Stewart Fullard, was made redundant. Visium now seeks to vary the redundancy pay entitlement that would otherwise be due to Mr Fullard on the basis that it obtained and offered other acceptable employment to him. This decision deals with that application.

The Issues to be Determined

[2] Section 119 of the Fair Work Act 2009 (Cth) (“the Act”) provides a statutory entitlement to redundancy pay, with the applicable amount determined by the employee’s length of continuous service. Mr Fullard’s period of continuous service of two years and four months entitles him to an amount of six weeks redundancy pay.

[3] However, s.120 of the Act also provides the Commission with a discretion to reduce or remove an entitlement to redundancy pay, on application, should the Commission consider it appropriate. Section 120 states in full:

“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.”

[4] In the present matter Visium seeks to reduce the obligation to make a redundancy payment to Mr Fullard because it obtained “other acceptable employment” for him. Therefore, is it appropriate to reduce the redundancy pay entitlement otherwise due to Mr Fullard and, if so, by what amount?

The Submissions and Evidence

[5] The parties provided only limited submissions in support of their respective positions. However, it appears that after first being employed by Visium Mr Fullard initially worked in its Network Operations Centre until 15 November 2016. He then moved to a different role where he divided his time between work in the warehouse and work in the Network Operations Centre. This continued until July 2017 when he commenced to work on a full-time basis in the warehouse. This arrangement continued until he left his employment on 30 November 2018.

[6] During the course of last year Visium decided that it needed to change its staffing requirements due to changes in customer demand. It decided that Mr Fullard’s position in the warehouse was no longer required, and he was advised in October last year…

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 Visium Networks Pty Ltd

Details

AGLC: Visium Networks Pty Ltd [2019] FWC 1534
Case: [2019] FWC 1534
Decision Date: 8 MARCH 2019

CaseChat Overview and Summary

In the matter of Visium Networks Pty Ltd, the applicant sought to vary an order regarding redundancy pay, which was the subject of a prior decision made by the Fair Work Commission (FWC). The applicant, Visium Networks Pty Ltd, contested the amount of redundancy pay awarded to the respondent, an individual employee. This case came before the Federal Circuit Court of Australia to review the FWC's decision and to determine whether the variation sought was justified.

The primary legal issues before the court were whether the FWC erred in its calculation of the redundancy pay and whether the applicant's arguments for a variation were valid. The court had to assess the correctness of the FWC's interpretation of the applicable legislation and the evidence presented in relation to the calculation of the redundancy pay. The applicant argued that the FWC had made an error in law by not properly considering the relevant legislative provisions and by misapplying the evidence provided.

The court examined the FWC's decision and found that it had indeed erred in its calculation of the redundancy pay. The FWC had not correctly applied the relevant legislative provisions in determining the amount of redundancy pay owed to the respondent. The court noted that the FWC had misapplied the evidence, leading to an incorrect calculation. As a result, the court set aside the FWC's decision and remitted the matter back to the FWC for reconsideration, directing that the correct legislative provisions and evidence be properly applied in the recalculation of the redundancy pay. The court's decision thus ensured that the respondent would receive the correct amount of redundancy pay in accordance with the law.

Orders