Er 24 Pty Ltd T/A Er 24 v Mr Graham Trevor Farrant

[2017] FWC 399

[2017] FWC 399

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 Graham Trevor Farrant
(C2016/5771)

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 Employer) for orders varying redundancy pay in relation to a number of former employees. These reasons should be read in conjunction with the substantive reasoning in ER 24 Pty Ltd T/A ER 24 v Mr Stephen John Brown[2017] FWC 397 1 which is applicable to the current circumstances. That decision is issued with, and forms part of, each of the Respondents who were employed as paramedics. That decision includes the submissions of ER24, relevant to the Respondent in these matters. Mr Farrant made individual submissions as below.

Applicant’s submissions specifically on Mr Farrant

[2] The Applicant submitted that the Respondent was employed by the Applicant in a full time paramedic position at Gregory Crinum Mine and paid an hourly rate of $43.50 per hour.

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

[4] The Applicant submitted the Respondent had served three (3) years and seven (7) months’ service with the Applicant.

Respondent’s submissions

[5] The Respondent submitted he is entitled to redundancy as the cessation of his employment was not due to performance issues.

[6] The Respondent submitted the amount he was entitled to $12, 789.00 as a redundancy payment.

[7] The Respondent submitted, in relation to the new rate of pay, it has differed to his disadvantage as his overtime rate with MSS Strategic Medical (MSS) has reduced.

[8] The Respondent submitted in relation to the location of the new employment, that it had changed considerably and he is now required to work in an underground mining environment. The Respondent submitted he was concerned about the rising risks of pneumoconiosis in the area.

[9] The Respondent submitted, in relation to the hours of employment, that there was a change to his previous 7 on / 7 off roster to a 6 on / 6 off roster. This altered roster, he submitted, has a major impact on his family life as he now only has four full days instead of six days he is able to spend with his family.

[10] In relation to his duties, he submitted that, with the new employment, there is a requirement to complete a Security Officer course, a Return to Work Co-ordinator course and a Pre-employment Functional Assessment test and that the Respondent must fund these courses/tests himself.

[11] The Respondent believed he had no other option but to accept the offer of employment from MSS at the BMA Broadmeadows underground site as there was no other alternative at that time.

[12] The Respondent submitted he had to apply for a position with MSS through an advertisement on SEEK. He submitted that he was informed he needed to do this by Peak Down Mine paramedic colleague (Mr Bradley Poultney), and not the Applicant. The Respondent submitted that he had an interview and following this, he was offered the position. He submitted that the Applicant did not arrange the appointment nor did they offer a guarantee of transfer of employment.

[13] The Respondent submitted that, in an email from Ms Jahnee Perkins, it was stated:

“whilst E24 Executive Management Team are working in the background with MSS and CPA, you will still need to apply through their advertisements on SEEK.”

[14] The Respondent submitted that this does not represent a ‘transfer of employment’ as stated in the Applicant’s document.

[15] The Respondent submitted he initiated contact himself with both CPA and MSS and he was told he would have to apply for a position with them through the SEEK website and would have to undergo the full recruitment process. The Respondent was not told he would be given a position solely on the basis that the Applicant had forwarded documentation to them regarding placing him in a paramedic position, nor would his employment be ‘transferred.’

Respondent’s submissions on ordinary and customary turnover of labour

[16] The Respondent did not provide the Commission with specific submission on the ordinary and customary turnover of labour.

Consideration

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

[18] 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.

[19] As I have summarised in Brown, the Applicant did not “obtain” the current employment of the Respondent, and therefore it is not necessary to consider whether that employment is acceptable under s.120.

Conclusion

[20] Accordingly, for the aforementioned reasons I am not 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.

[21] I Order accordingly.

COMMISSIONER

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

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