PR582867 - Decision - 22 Jul 2016

[2016] FWC 4779
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.120 - Application to vary redundancy pay for other employment or incapacity to pay

Ray Robinson Real Estate Pty Limited T/A Robinson Property
(C2016/3743)

Real estate industry

COMMISSIONER SAUNDERS

NEWCASTLE,22 JULY 2016

Variation of redundancy pay.

[1] Ray Robinson Real Estate Pty Limited trading as Robinson Property (Robinson Property) has made an application pursuant to s.120 of the Fair Work Act 2009 (Cth) (FW Act) to have the redundancy pay otherwise payable to a former employee,Mr Edward Crawford,reduced to nil.

[2] Mr Crawford does not oppose Robinson Property’s application.

[3] There is no dispute and I am satisfied on the material filed that:

    (a) Mr Crawford is entitled to be paid an amount of redundancy pay (14 weeks’pay) by Robinson Property because of s.119 of the FW Act;and

    (b) Robinson Property obtained other acceptable employment for Mr Crawford following the termination of his employment on the ground of redundancy.

[4] I have had regard to the following factors in deciding to exercise my discretion to reduce the amount of redundancy pay otherwise payable to Mr Crawford by 7 weeks’pay:

    (a) Mr Crawford was employed by Robinson Property for 8 years and 10 months. Mr Crawford worked in the role of Development Manager –Land Sales for Robinson Property;

    (b) The location of Mr Crawford’s employment with Colliers International Newcastle (Colliers) is similar to the location of his employment with Robinson Property.

    (c) As a result of Robinson Property’s significant efforts in obtaining employment for Mr Crawford with Colliers,there was no break between the cessation of his employment with Robinson Property and the commencement of his employment with Colliers. This is relevant to the hardship factor;

    (d) Colliers’offer of employment to Mr Crawford,which he accepted,was on terms no less favourable to Mr Crawford than those he enjoyed whilst employed by Robinson Property,save that Mr Crawford’s remuneration with Robinson Property was fixed,whereas his remuneration with Colliers is part base salary and part commission. In particular,in the first year of his employment with Colliers Mr Crawford’s potential total remuneration is almost the same as he earned with Robinson Property,but about 15% of it is at risk in the form of potential commission earnings. In the second year of his employment with Colliers,Mr Crawford has the opportunity to earn more remuneration that he earned in his last year with Robinson Property,but about 27% of his potential total remuneration in that year is at risk in the form of potential commission earnings;

    (e) Colliers chose not to recognise Mr Crawford’s service with Robinson Property. On this basis,Robinson Property paid Mr Crawford his accrued leave entitlements on the termination of his employment with Robinson Property,including annual leave,annual leave loading,and pro-rated long service leave;and

    (f) As a result of the matters referred to in (e) above,there is no continuity of employment and no recognition by Colliers of Mr Crawford’s service with Robinson Property for the purposes of long service leave and other non-transferable credits. Accordingly,Mr Crawford should be entitled to a portion of his redundancy entitlement notwithstanding the fact that Robinson Property had had extensive involvement in obtaining employment for him with Colliers. 1

[5]
Order PR582866 will be issued to give effect to this decision.

COMMISSIONER

 1  Datacom Systems Vic Pty Ltd v Khan &Anor [2013] FWC 1327 at [24]

Printed by authority of the Commonwealth Government Printer

<Price code A, MA000106  PR582867 >

About this document
(1)
Code:
PR582867
Title:
PR582867 - Decision - 22 Jul 2016
Effective:
22 Jul 2016
Updated:
22 Jul 2017
(0)
PR582867 - Decision - 22 Jul 2016
Related Information
1.0.11.0 SC