ER 24 Pty Ltd T/A ER 24; v Mr Doncila Pop Constantin
[2017] FWC 388
•26 MAY 2017
| [2017] FWC 388 |
| 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 Doncila Pop Constantin
(C2016/5755)
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 Ms Susan Mary Berthun [2017] FWC 383 1. That decision is issued with, and forms part of, each of the decisions of the Respondents who were employed as security. That decision also includes the submissions of ER24 relevant to the Respondent in these matters. Mr Constantin made individual submissions as below.
Applicant’s submissions
[2] The Respondent, Mr Doncila Pop Constantin, was employed by the Applicant in a full-time security position at Hay Point Mine paid an hourly rate of $30.29 per hour.
[3] The Security Services Industry Award 2010 (the Award) applied to the Respondent’s employment.
[4] The Respondent had served four (4) years and one (1) months’ service with the Applicant.
[5] Due to the Respondent’s length of service being more than four (4) years but less than five (5) years the Respondent is entitled to eight (8) weeks redundancy payment. Based on the Respondent’s base rate of pay and their ordinary hours worked the redundancy payment would equate to $10,177.44.
[6] Further, the Applicant submitted that, in addition to the list of steps above, they took the following steps in obtaining other employment:
“b. Email correspondence from the Applicant to the Respondent as per the attachment marked TW34 in Mr Wicht’s Affidavit which provides that the positions for CPA or MSS must be applied for directly through the Seek advertisements and that there is no missing requirements for the Respondent’s transfer to CPA or MSS; and
c. The Applicant received confirmation from CPA that the Respondent had obtained acceptable alternative employment with CPA as per attachment marked TW102 in Mr Wicht’s Affidavit.”
[7] The Applicant provided details of the other employment as follows:
“a. Full-time security position;
b. Located at Hay Point Mine;
c. The Applicant has made every reasonable enquiry as commercially permissible and made a great effort in verifying the rate of pay. The draft orders sought in relation to this will illuminate and verify the Applicant’s submission that the Respondent is on or around $30.29 per hour base rate of pay with CPA;
d. The Respondent works 84 hours per fortnight as required by the BMA contract; and
e. The duties the Applicant believes the Respondent undertakes with CPA based on the scope of service for the unsuccessful BMA tender is as follows:
i. Execute site access duties through the effective use of the company’s training and access management systems (TAMS);
ii. Maintain high level customer service throughout interactions with site personnel and visitors;
iii. Complete and communicate all scheduled and requested TAMS reports to the sites;
iv. In cases of security threats act within the accountabilities of the respective sites security processes;
v. Fulfil front of house accountabilities during site closures and emergency activations;
vi. Execute patrols of the sites boundary and internal facilities; and
vii. Monitor sites CCTV network.”
Respondent’s submissions
[8] The Respondent provided the following submission to the Commission:
“I was made redundant by ER24 Pty Ltd. as the job which I was doing was no longer required by the company, therefore I argue that I am entitled to redundancy pay in accordance with Fair Work Act, S. 119, 1(a)..”
[9] In response to the Direction to provide submissions on “the remuneration and conditions of alternative employment found, including (in comparison to the former position);”, the Respondent submitted:
“I would like to inform the Commission that ER24 did not find, or was involved in any way in finding, taking applications, interviewing, negotiating or taking any other steps in regards to my current position, as will be detailed herein.
My current position is Emergency Security Officer with MSS Strategic Medical at Goonyella Riverside Mine.
The number of hours is similar to the previous position held with ER24.
The rate of pay is 28.30 AUD per hour. This is 2 AUD less per hour than the Senior Maritime Security Officer position at Hay Point and is amounting to an annual loss of income: 52(weeks)*42(h/week)*2(AUD/h) = 4,368 AUD.
More so following the termination of my employment by ER24, I am currently working on an opposite roster with my wife. For the last three months and for the foreseeable future we only have one day off together every fortnight. The level of stress and disruption which this is causing to our family life and our relationship is hard to quantify financially.”
[10] In response to “whether the alternative employment was obtained by the Employer;”, the Respondent submitted as follows:
“As stated above ER24 had no input/role or provided any assistance whatsoever in obtaining my current position with MSS Strategic Medical as I will detail below.
1. The last correspondence I received from ER24 in regards to any employment whatsoever was the Notice of Termination of Employment with ER 24.
2. Following the above mentioned Notice I started to actively look for employment opportunities on SEEK and other online and on paper advertisers. Below is a screenshot of my SEEK account with the jobs I applied for in the period immediately after receiving the Notice of Termination from ER24. I separately applied for other jobs in the same period directly via email.
3. All these jobs, and among them my current job, were openly advertised on SEEK. They were open to any applicant and nowhere in the Advertisement, position details, or at any stage in the application process, was ER24 mentioned or involved, directly or indirectly, or was I given any preferential treatment because I was an ER24 current or former employee.
4. To the best of my knowledge ER24 Pty, CPA Corporate Protection (wrongly indicated by ER24 as my current employer) and MSS Strategic Medical are entirely separate business entities. I would argue that for any one of them to provide employment in another, a formal agreement must be in place in one of the following forms:
a. a three party agreement between myself – ER24 Pty – MSS/CPA. No such agreement exits, was never mention or discussed in a formal/informal written or verbal context.
b. a two party agreement between ER24 Pty – MSS/CPA. I am not aware of any such agreement and if it exists, and I unknowingly benefited from it, I respectfully ask the Commission to ask ER24 to submit this agreement for examination. Such an agreement would raise the problem of the public advertisement mentioned at 3. above. As these positions were publicly and open advertised, this would mean that MSS/CPA might have been unfair and dishonest in their recruitment process, in respect to other candidates, and possibly breached the Fair Work Act.
c. If such an agreement exits then the appropriate way to fulfil it would have been via the FAIR WORK ACT – SECTION 122 Transfer of employment situations that affect the obligation to pay redundancy pay. No such option was ever offered, discussed or mentioned to me by ER24, CPA or MSS formally, informally, in writing or verbally.
5. In the ER24 Application to vary redundancy pay/Part 2 Requirements for an order/2.1 is indicated the “attached Spreadsheet at number five (5)” as “details of the alternative offer provided”.
These spreadsheet is not in any way a proof that ER24 ever provided me with an acceptable alternative offer of employment, it is merely stating that I am currently employed.
More so it is incorrectly stating that I accepted an offer from CPA at Hay Point. I never accepted such an offer and I never worked for CPA. My current employment is with MSS Strategic Medical as detailed above. This in itself provides a good example of the level of involvement of ER24 in my quest to find employment following the Notice of Termination they sent me – none.
The spreadsheet attached by ER24 contains a number of 29 names and their income or alleged income, Security Officers and Paramedics, across three companies. I consider that this is a breach of confidentiality and privacy with consequences which I can not entirely assess at this stage. However, I am of the opinion that it has the potential to impair my ability to successfully negotiate future salaries, raises, bonuses or higher duties entitlements in the future.
6. The direct costs incurred to me to successfully gain employment following the Notice of Termination sent by ER24 is over 1500 AUD paid for extra qualifications, examination, travel and accommodation, etc. On top of this during May – July I spent in excess of 80 hours searching, applying, preparing, travelling and performing other activities required to secure employment. ER24 Pty did not assist me financially or in any other way in this process.”
[11] The Respondent submitted that an alternative offer was never provided.
[12] The Respondent states that their length of service with the Applicant was four years and one month and that he was entitled to 10177.44 AUD of redundancy payment as follows:
“8(weeks) * 42 Hours * 30.29 AUD = 10177.44 AUD”
[13] The Respondent confirmed he was content to have the matter heard on the papers.
[14] The Respondent submitted the following in conclusion:
“ER24 has never made me an alternative employment offer.
ER24 was never involved in any way in the process of securing my current employment.
ER24 is incorrect in affirming in front of the commission that I accepted an alleged offer from CPA in which allegedly ER24 had some involvement.
ER24 who is claiming to have secured employment offers, is asking the commission to grant an order (Order refused by the Commission) for us to produce documents relevant to our current employment. If my current employment would have been offered by ER24 all this information would be already in their possession. The reason it is not, is because they never made such an employment offer.
ER24's sole proof presented in front of the Commission is a compilation of part facts, part allegations and at least in my case incorrect affirmations, presented in a table which is breaching privacy and confidentiality conditions of our employment.
ER24 is trying to avoid its legal obligations by stating that Security Officers are working as Security Officers and Paramedics are working as Paramedics on more or less industry standards and market conditions for these jobs. No proof whatsoever is provided that ER24 fulfilled or attempted to fulfil the obligations stipulated in S. 120, (1) (b) (i) – “obtain other acceptable employment for the employee”.
I respectfully ask the commission to consider the above arguments in assessing the Application to vary redundancy pay, to reject the Application and to find ER24 Pty Ltd responsible to pay me 10177.44 AUD as my legal entitlements in accordance with the Fair Work Act – S. 119.”
Summary of Applicant’s material in reply
[15] The Applicant summarised the previous position held with the Applicant and the new position with MSS as below:
ER24 | MSS | |
Position | Full-time Security | Emergency Security Officer |
Location | Hay Point Mine | Goonyella Riverside Mine |
Pay | $30.29/hr | $28.30/hr |
[16] The Applicant refuted the Respondent’s allegation that they “did not find, or was not involved in any way in negotiating or taking any other steps in regards to [the Respondent’s] current position”.
[17] The Applicant referred to the Affidavit of Mr Hendrik Mare, Project Manager of the Applicant, as evidence that the Applicant directed time and resources to assisting the Respondents in securing acceptable alternative employment. Mr Mare stated as follows:
“7. On or around 23 May 2016 I attended a meeting with Mr Matt Willis, Director, Mr Chris Wicht, Director, Mr Jason Scott, General Manager, Mr Tommy Wicht, Human Resources/Accounts, Mr John Hickson, Operations and Training Coordinator, Mr Hans Wicht, Head of Resource and Logistics (Head Office Meeting).
8. The purpose of the Head Office Meeting was to discuss and implement the demobilisation plan to ensure a smooth transition for ER24 employees to obtain acceptable alternative employment with the new providers.
9. During the Head Office Meeting Mr Willis directed me and Mr Hickson to visit each mine site and conduct face-to-face information sessions with every employee affected by the unsuccessful tender.
10. ln the Head Office Meeting, Mr Willis directed me that my main priority from that day until the end of the BMA contract on 1 July 2016 was to keep our employees up to date with any developments in obtaining alternative employment with the new providers and to answer any questions the employees may have.”
[18] Further, the Applicant submitted that it emailed to the Respondent a copy of the information sessions held by the Applicant and further reiterated there were no missing requirements for the transfer of their employment.
[19] The Applicant submitted that the Respondent has discounted the great lengths the Applicant went to ensure that the Respondent was provided with acceptable alternative employment.
[20] The Applicant submitted that the Respondent has transferred employment at the same location, on relatively the same pay as with the Applicant, has had her entitlements paid out by the Applicant and was arguing that redundancy payment is due and owing to what was essentially a ‘shirt swap’.
[21] The Applicant noted that the Respondent provided in his Affidavit “it incorrectly stating that I accepted an offer from CPA at Hay Point. [The Respondent] never accepted such an offer and [the Respondent] never worked from CPA. My current employment is with [MSS]…this in itself provides a good example of the level of involvement of [the Applicant] in my quest to find employment”. The Applicant submitted that CPA advised the Applicant that the Respondent was offered and accepted employment with CPA.
[22] The Applicant submitted that the statutory test for the Applicant in obtaining acceptable alternative employment does not require the Respondent to remain in employment, and that it was the Respondent’s choice whether he remained in employment with CPA or not.
[23] The Applicant submitted that, due to the efforts of the Applicant the Respondent was offered a position at CPA however ultimately remained in alternative acceptable employment with MSS. In any event, the Applicant submitted that it was unlikely that the Respondent would have been in the situation to accept employment with MSS if it was not for the efforts made by the Applicant to gain and accept alternative employment with CPA.
[24] The Applicant submitted it was clear from Mr Wicht’s Affidavit in particular, there was regular correspondence with Mr Nick Prass of MSS, regarding the Respondent(s) and the application process in securing acceptable alternative employment with MSS.
[25] The Applicant admitted that CPA and the Applicant are not related business entities and submitted that no material submitted by the Applicant suggests that this may be the case.
[26] The Applicant submitted that the Respondent has discounted the great lengths the Applicant went to ensure that the Respondent was provided with acceptable alternative employment with CPA within the commercial realities (unbeknownst to the Applicant) their efforts were being severely undermined simultaneously by the actions of BMA.
[27] The Applicant provided a copy of the Respondent’s latest employment contract, and relied on the following clauses:
“14.1. This Agreement may terminate or be terminated in the following circumstances:
(a) By the Employer without notice if the Employee engages in:
…
(x) The Employer’s contract with the operator of the Nominated Mine Site is varied or comes to an end;
…
(b) This Agreement will terminate automatically if either of the following occur:
(i) The Employer's contract with the operator of the Nominated Mine Site is terminated or comes to an end.”
[28] The Applicant submitted that the Respondent was aware that their employment was dependent on the Applicant’s on-going contract with the mine site operator.
Conclusion
[29] On the reasoning provided in the decision of Ms Berthun, I find that there is no entitlement to redundancy pay under s.119. The effect of clause 12.5(b) of the Award is that s.119 does not apply.
[30] Accordingly, on the evidence before the Commission, the Respondent has agreed to other acceptable employment with an incoming contractor and the Applicant has paid to the Respondent his accrued statutory and award entitlements on termination of the Respondent’s employment.
[31] As submitted by Mr Constantin above, it is noted his current employment is at a slightly lower rate of pay, and at a different site, but that he is employed on a full time basis.
[32] The Commission is objectively satisfied that the employment with the incoming contractor is “other acceptable employment” on the basis that Mr Constantin’s current employment is substantially the same as his previous employment with ER24, as he is working similar hours at a similar rate of pay, with similar duties. It is clear on the basis of the authorities I have summarised in Berthun that the enquiry is not whether the employee in question considers the employment acceptable, but rather, whether it is objectively acceptable. There is, on the evidence, a difference between the two positions in some respects. On fine balance, I am satisfied that the new employment is other acceptable employment with the incoming contractor that has been agreed to by Mr Constantin.
[33] I Order accordingly.
COMMISSIONER
1 A copy of the decision [2017] FWC 383 was provided to the Respondent by email.
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