Westvic Staffing Solutions T/A Westvic Staffing Solutions

[2019] FWC 8093

[2019] FWC 8093

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.120—Redundancy pay

Westvic Staffing Solutions T/A Westvic Staffing Solutions
(C2019/880)

COMMISSIONER GREGORY MELBOURNE, 28 NOVEMBER 2019

Variation of redundancy pay.

Introduction

[1] Westvic Staffing Solutions T/A Westvic Staffing Solutions (Westvic) has made an application to vary the amount of redundancy pay that would otherwise be due to Ms Kathy Van Den Eynden. Ms Van Den Eynden does not oppose the application as she has been offered and accepted another position with Westvic.

The Issue 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. 1 However, s.120 also provides the Commission with the discretion to reduce or remove the entitlement, on application, if it considers this to be 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.” 2

The Submissions and Evidence

[3] Westvic attached a letter with its application which was jointly signed by Mr Wayne Robertson, Chief Operating Officer, and Ms Kathy Van Den Eynden. It indicates that Ms Van Den Eynden has been offered and has accepted the position of Prep4Work Coordinator with Westvic after her previous position of Field Consultant was made redundant.

[4] The letter indicates that it was explained to Ms Van Den Eynden that the new role can be considered to be no less favourable when compared to her previous position, and she has accepted that this is correct. She accordingly supports the present application and agrees that any redundancy entitlement that might otherwise be due to her should be reduced to nil.

[5] The letter also indicates that it is acknowledged that if her position is again made redundant at some point in the future then all of her previous service with Westvic will be recognised for redundancy purposes.

Consideration

[6] The provisions in s.120 of the Act, and what constitutes “other acceptable employment,” have been considered in a number of previous decisions of the Tribunal.

[7] They make clear that it is, firstly, a test to be applied objectively, and not simply on the basis of whether the employee wishes to take on the role being offered. Relevant matters to consider in this context include whether it involves work of a like nature, the location, the pay arrangements, the hours of work, seniority and workload. However, the alternative being offered obviously need not be identical to the work being performed previously.

[8] The authorities also make clear that the onus of establishing that the alternative is “acceptable” rests with the applicant employer.

[9] I am satisfied that the new position that has been offered to and accepted by Ms Van Den Eynden can be considered to be “other acceptable employment” on the basis of the explanation provided in the correspondence referred to above. I am also satisfied that in these circumstances it is appropriate to exercise the discretion available to the Commission and to reduce the redundancy entitlement that would be otherwise due to Ms Van Den Eynden to nil. An order confirming this outcome is issued in conjunction with this decision.

COMMISSIONER

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 1   Fair Work Act 2009 (Cth) at s.119

 2   Ibid at s.120