COBNER v Quedos Pty Ltd
[2012] FMCA 574
•28 June 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| COBNER v QUEDOS PTY LTD | [2012] FMCA 574 |
| INDUSTRIAL LAW – Fair Work small claims – whether the applicant was entitled to redundancy pay – what is relevant award pursuant to which any redundancy payment should be made. |
| Fair Work Act 2009 (Cth), s.119 Cleaning Services Award 2010 Notional Agreement Preserving State Award Miscellaneous Workers’ General Services (State) Award |
| Fashion Fair Pty Limited v Department of Industrial Relations (Insp Rouse) [1999] NSWIRComm 560 DIR v Delaware North (Australia) Pty Ltd [2002] QIRComm 180 |
| Applicant: | MARIANNE COBNER |
| Respondent: | QUEDOS PTY LTD TRADING AS HILLS COMMERCIAL CLEANING |
| File Number: | SYG 1262 of 2012 |
| Judgment of: | Emmett FM |
| Hearing date: | 28 June 2012 |
| Date of Last Submission: | 28 June 2012 |
| Delivered at: | Sydney |
| Delivered on: | 28 June 2012 |
REPRESENTATION
| The applicant appeared in person |
| No appearance by or on behalf of the applicant |
ORDERS
Judgment for the applicant in the sum of $5,187.50.
NOTE A: The judgment sum is the applicant’s redundancy entitlement and is made up of 12.5 weeks pay at $415.00 in respect of the applicant’s employment with the respondent between 4 February 2008 and 9 December 2011.
NOTE B: The applicant was assisted by Mr Robertson, the solicitor for the Fair Work Ombudsman.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1262 of 2012
| MARIANNE COBNER |
Applicant
And
| QUEDOS PTY LTD TRADING AS HILLS COMMERCIAL CLEANING |
Respondent
REASONS FOR JUDGMENT
Ex tempore
By application filed on 8 June 2012 and “Form 5 Small claim under the Fair Work Act 2009 (Cth)” filed on the same date, the applicant seeks a redundancy payment in respect of employment with the respondent between 4 February 2008 and 9 December 2011.
Section 119 of the Fair Work Act 2009 (Cth) is in the following terms:
“Redundancy pay
Entitlement to redundancy pay
(1) An employee is entitled to be paid redundancy pay by the employer if the employee's employment is terminated:
(a) at the employer's initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or
(b) because of the insolvency or bankruptcy of the employer.
Note: Sections 121, 122 and 123 describe situations in which the employee does not have this entitlement.
Amount of redundancy pay
(2) The amount of the redundancy pay equals the total amount payable to the employee for the redundancy pay period worked out using the following table at the employee's base rate of pay for his or her ordinary hours of work:
Redundancy pay period Employee's period of continuous service with the employer on termination Redundancy pay period 1 At least 1 year but less than 2 years 4 weeks 2 At least 2 years but less than 3 years 6 weeks 3 At least 3 years but less than 4 years 7 weeks 4 At least 4 years but less than 5 years 8 weeks 5 At least 5 years but less than 6 years 10 weeks 6 At least 6 years but less than 7 years 11 weeks 7 At least 7 years but less than 8 years 13 weeks 8 At least 8 years but less than 9 years 14 weeks 9 At least 9 years but less than 10 years 16 weeks 10 At least 10 years 12 weeks
[Emphasis added]
The effect of s.119 of the Fair Work Act 2009 (Cth) is that the applicant is entitled to seven weeks redundancy pay if her termination was at the employer’s initiative because the respondent no longer required the job to be done by anyone, except where this is due to the ordinary and customary turnover of labour. Pursuant to clause 14.1 of the Award, redundancy pay is provided for in the National Employment Standard.
On behalf of the applicant, the solicitor for the Fair Work Ombudsman, Mr Robertson, sought leave to proceed ex parte against the respondent in respect of the applicant’s claim for redundancy pay. In support, Mr Robertson read the affidavit of service of Mr Marcel Smithers, affirmed 8 June 2012, relating to service of the application and the Form 5 referred to above upon the respondent at the respondent’s registered office.
Mr Robertson tendered two documents together marked Exhibit 1A and annexed to Mr Smither’s affidavit. The first document is a copy of a document from Australia Post identifying a tracking number in respect of the letter referred to in Mr Smither’s affidavit. The second document is a diary entry which appears to have posted onto it the tracking number of the letter.
In light of the evidence before me, I am satisfied that the respondent has been duly served with the rules of the Court and has had a reasonable time in which to participate in the proceeding before this Court. There has been no communication received by this Court from the respondent either seeking an adjournment of today’s hearing or for any other reason. There has been no document filed by the respondent in response to the application filed, and neither has the applicant received any communication from the respondent.
In the circumstances, I am satisfied that it is appropriate that leave be granted to the applicant to proceed ex parte on her application today.
The applicant gave evidence that she engaged in general cleaning work for the respondent at Barker College until 9 December 2011, whereupon she ceased work and was provided with a Certificate of Separation, dated 18 December 2011.
I am satisfied that the evidence of the duties engaged in by the applicant were duties that were covered by the Cleaning Services Award 2010 (“the Award”), and that in accordance with that Award, the applicant was employed as a level 1 employee in those cleaning services.
Mr Robertson also directed the Court’s attention to clause 14.6 of the Award relating to the transitional provisions in respect of employees to which the Notional Agreement Preserving State Award applies. I accept that the relevant award to which those traditional provisions apply is the Miscellaneous Workers’ General Services (State) Award, and I note that award applies to cleaners relevantly employed in or in connection with any schools. In the circumstances, I am satisfied that is a relevant award that the Court must also consider. It has the effect that the applicant would be entitled to 12.5 weeks of redundancy pay.
The effect of clause 14.6 is that the Court would have regard to the redundancy payments provided for in the Miscellaneous Workers’ General Services (State) Award and the Cleaning Services Award 2010, and that the applicant would be entitled to the difference between either of those awards.
The applicant gave sworn evidence in relation to the nature of her employment with the respondent. Her evidence was that there was never anything said to her by the Director of the respondent, Mr Peter Birtley, to lead her to believe anything other than that she was being employed on a permanent part-time basis. Although the duration of her employment was spent at Barker College, it was her evidence that she expected to keep working with the respondent upon the cessation of the respondent’s contract with Barker College.
In the circumstances, I am satisfied that the applicant had a settled expectation of continued employment with the respondent, and that when the contract with Barker College was lost, her expectation was that she would be employed by the respondent elsewhere. The applicant gave evidence that upon the cessation of the contract with Barker College, she had asked to continue to work at Gordon and was told by Mr Birtley that there was no further work for her.
In the circumstances, on the evidence and material before me, I am satisfied that the applicant’s employment was terminated at the respondent’s initiative because the respondent no longer required the job done by the applicant to be done by anyone. On the evidence and material before me, I am not satisfied that this was due to the ordinary and customary turnover of labour (see Fashion Fair Pty Limited v Department of Industrial Relations (Insp Rouse) [1999] NSWIRComm 560 at 280-281 and 284; and DIR v Delaware North (Australia) Pty Ltd [2002] QIRComm 180 at 6).
Accordingly, I am satisfied that the applicant is entitled to the redundancy payments that she seeks.
The applicant attached to her Form 5 both a copy of her Certificate of Separation and a copy of her latest payslip. That payslip indicated that the applicant’s weekly pay upon termination was $415 a week, and in those circumstances the applicant was entitled to redundancy payment of 12.5 weeks at that rate of pay.
I note that the employment Certificate of Separation dated 4 January 2012 and given by Mr Birtley to the applicant at or around that time provided for a payment of $1,679.15. I accept that amount is the equivalent to the applicant’s last week of pay together with annual leave and other leave entitlements. The applicant does not dispute the accuracy of the amount in the Certificate of Separation and seeks only a further amount to reflect the redundancy payment to which she is entitled.
Based on the evidence before me, I am satisfied that the applicant is entitled to the redundancy payment of $5,187.50, reflecting a 20-hour week at $20.75 an hour, equalling $415 a week.
Accordingly, judgment should be entered for the applicant in the total amount of $5,187.50.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 6 July 2012
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