Ehi Australia Pty Ltd v Ms Ashley Harris
[2011] FWA 56
•7 JANUARY 2011
[2011] FWA 56 |
|
DECISION |
Fair Work Act 2009
s.120 - Application to vary redundancy pay for other employment or incapacity to pay
EHI Australia Pty Ltd
v
Ms Ashley Harris; Ms Anastasia (Tess) Aratzis
(C2010/5560)
Miscellaneous | |
COMMISSIONER WILLIAMS | PERTH, 7 JANUARY 2011 |
Application to vary redundancy pay.
Introduction
[1] This application is made by EHI Australia Pty Ltd under s. 120 of the Fair Work Act 2010 and involves two employees who were made redundant by the applicant employer.
[2] The relevant section of the Act provides as follows as:
s. 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, 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.
[3] The notice of listing and attached directions were sent to both employees and they were invited to make written submissions and to attend the hearing of this matter either in Perth or in Melbourne. No written submissions were received from the employees nor was there any contact with the tribunal from either them and at the time of hearing neither employee attended.
[4] Evidence in support of this application was given by Mr Arthy on behalf of the applicant.
[5] His evidence was that the applicant is largely a wholesaler of various hardware products to hardware retailers including firms such as Bunnings and other independent hardware retailers. The applicant has operations throughout all States and Territories of Australia.
[6] Up until recently the applicant employed merchandisers in Western Australia and Victoria who were responsible for stocking the shelves of the retail stores with the applicant’s products.
[7] In the other states and territories this function was carried out by employees of contractors. One of these contractors was Pioneer Hardware whom was contracted to the applicant to provide merchandisers in New South Wales.
[8] The applicant has decided that it was more efficient for contractors to carry out all this work rather than to directly employ persons to do this work. The applicant has engaged Pioneer Hardware to undertake this work in Victoria.
[9] As a consequence of this the two employees subject to this application were made redundant on 30 November 2010.
[10] Mr Arthy’s evidence was that prior to this the applicant's Divisional Manager contacted Pioneer Hardware and asked if they were interested in employing the two employees in question.
[11] The Divisional Manager then travelled to Melbourne and met with the Directors of Pioneer Hardware and introduced them to the two employees in question. Following this Pioneer Hardware employed the two employees.
[12] The evidence of Mr Arthy is that the two employees now working for Pioneer Hardware are undertaking the same tasks they had been when directly employed by the applicant.
[13] Mr Arthy’s evidence is that while he is not aware of the specific detail of the terms and conditions provided by Pioneer Hardware his understanding is that it is similar to before and the two employees are content with their new employment arrangements.
Consideration
[14] In this case there is no evidence to contradict the assertion made by the applicant that the role and the terms and conditions of employment provided by Pioneer Hardware to the employees are similar to those that had been provided by the applicant.
[15] Consequently then I accept that the two employees are currently engaged in other acceptable employment.
[16] Further I am satisfied that the actions of the applicant’s Divisional Manager in raising with Pioneer Hardware the possibility of engaging the two employees and then facilitating this by meeting with Pioneer Hardware’s Directors to introduce them to the two employees means the applicant was a strong moving force 1 towards the creation of the other employment.
[17] In summary then I am satisfied that the applicant here has obtained other acceptable employment for the employees.
[18] The consequential question to be determined by the tribunal is by what amount should the employees redundancy pay be reduced.
[19] Mr Arthy’s evidence was that the two employees had approximately 3 years and 5 years service with the applicant.
[20] The onus in an application such as this is on the applicant to provide evidence to the tribunal in support of its application. There is no information before the tribunal as to whether or not the employee's employment has been transferred to the new employer. Given this has not been proven I cannot assume that this has occurred and rather approach this issue by concluding that this has not occurred and therefore the employees do suffer some loss in terms of service with the applicant not counting as service with their new employer and the loss of some accrued non transferable entitlements.
[21] Consequently my decision is that it is appropriate that the amount of redundancy pay each employee is entitled to be paid according to Section 119 of the Act will be reduced by 50%.
[22] An order to that effect will issue in conjunction with this decision.
COMMISSIONER
Appearances:
Mr A Arthy, Controller, EHI Australia Pty Ltd on behalf of the Applicant
Hearing details:
2010
Perth:
December 22.
1 Derole Nominees Pty Ltd and The Australian Chamber of Manufactures (1990) 140 IR 123 at 128
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