Er 24 Pty Ltd T/A Er 24 v Mr Brian Wells

[2017] FWC 412

[2017] FWC 412

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.120 - Application to vary redundancy pay for other employment or incapacity to pay

ER 24 Pty Ltd T/A ER 24
v
Mr Brian Wells
(C2016/5790)

COMMISSIONER SPENCER BRISBANE, 26 MAY 2017

Variation of redundancy pay.

[1] This Decision arises out of a number of applications made by ER 24 Pty Ltd (the Applicant) for orders varying redundancy pay said to be payable to a number of former employees. These reasons should be read in conjunction with my substantive reasoning in ER 24 Pty Ltd T/A ER 24 v Mr Stephen John Brown [2017] FWC 397 1. That decision is issued with, and forms part of, each of the decisions of the Respondent s who were employed as paramedics. That decision also includes the submissions of ER24 relevant to the Respondent in these matters.

Applicant’s submissions

[2] The Applicant submitted Mr Wells was employed by the Applicant in a full-time paramedic position at Broadmeadow Mine paid an hourly rate of $43.50 per hour.

[3] The Ambulance and Patient Transport Industry Award 2010 applied to the Respondent’s employment.

[4] The Respondent had served three (3) years and one (1) months’ service with the Applicant.

[5] The Applicant further submitted as follows:

“Specifically, that the Respondent was offered redeployment as per the attachment marked TW32 of Mr Wicht’s Affidavit. The terms of the redeployment were as follows:
a. Full time Paramedic (rescue/security) at Burton Mine; and
b. An annual salary of $95,000.

710. The Respondent was previous employed with the Applicant on the following terms:
a. Full time Paramedic position at Broadmeadows Mine; and
b. An annual salary of $95,000.

711. The Respondent did not respond to the offer of redeployment.

712. The Applicant also provided the Respondent with the information in obtaining acceptable alternative employment with CPA or MSS as per Mr Wicht’s Affidavit and the attachment marked TW50. The Respondent advised that he did not intend to apply to either CPA or MSS as per Mr Wicht’s Affidavit and attachment marked TW65.

713. Due to the Respondent’s length of service being more than three (3) years but less than four (4) years the Respondent is entitled to seven (7) weeks redundancy payment. Based on the Respondent’s base rate of pay and their ordinary hours worked the redundancy payment would equate to $12,789.00.

714. The Respondent was offered redeployment with the Applicant as follows:
a. Full-time paramedic;
b. Located at Burton;
c. An hourly rate of pay of $43.50; and
d. The Respondent declined the position.”

Respondent’s submissions

[6] The Respondent did not provide any submissions to the Commission.

Consideration

[7] In the reasoning provided in the decision of Mr Brown, I find that there is an entitlement to redundancy pay as per s.119.

[8] In considering making this order, it must be determined as per s.120(1)(b) whether the employment was obtained by the Applicant and that the employment was acceptable.

[9] As I have summarised in Brown, the other employment was obtained (as per the case law) by the Applicant in terms of their offer of redeployment, and while the resultant position provided terms that were not exactly the same, I am nonetheless satisfied it was objectively acceptable.

Conclusion

[10] Accordingly, for the aforementioned reasons I am satisfied in accordance with s.120 (1)(b)(i) of the Act that I should exercise the discretion pursuant to s.120(2) of the Act to reduce the amount of redundancy pay. The Respondent has an entitlement to 7 weeks redundancy pay for between 3 to 4 years’ service. I consider it appropriate to vary the redundancy pay to four (4) weeks.

[11] An Order [PR586907] reflecting the terms of this decision will issue separately.

COMMISSIONER

 1   A copy of the decision [2017] FWC 397 was provided to the Respondent by email.

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