Er 24 Pty Ltd T/A Er 24 v Mr Jason Corey Euler

[2017] FWC 392

[2017] FWC 392

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 Jason Corey Euler
(C2016/5759)

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 Euler made individual submissions as below.

Applicant’s submissions

[2] The Applicant submitted Mr Euler was employed in a full time security position at the Gregory Crinum mine on an hourly rate of $28.00.

[3] The Applicant provided the Security Services Industry Award 2010 (the Award) applied to the Respondent.

[4] The Applicant submitted Mr Euler was employed for three years and one month.

Respondent’s submissions

[5] The Respondent rejected the Applicant’s claim that they found acceptable employment for the Respondent, upon the termination of his employment and the Respondent stated he objected to their application to waive their obligation to pay redundancies.

[6] The Respondent submitted that at no time did the Applicant assist him to gain employment and that the position he secured was advertised on SEEK.com, through which the Respondent applied. It was submitted by the Respondent that the notification provided by Applicant (after his application) was only to advise that CPA Group had advertised the positions on seek.

[7] The Respondent submitted that he did not attend the meeting scheduled by the Applicant and it was reported to the Applicant that the information provided was limited and that employees were advised to apply via SEEK.com, which he stated he had already done prior to this meeting or any notifications. The Respondent stated that, to his knowledge, no qualifications were passed on to CPA Group and at no time did the Applicant intercede or assist in my gaining his current employment.

[8] It is noted that the Respondent’s material addresses the matter of whether the other employment was ‘obtained’ by the Applicant but does not address whether it was ‘acceptable’.

[9] The Respondent sent in further email correspondence wishing to respond to the Applicant’s reply submissions. The email is extracted as follows:

“I, Jason Corey Euler, wish to respond to ER24’s reply to my submission. They claim that my response was “not relevant” and is “refuted in their entirety”. I believe that redundancy, and whether there is a applicable to be paid, is addressed in my response. My understanding of redundancy is that it is to be paid when the company can no longer offer the position. Based on that assumption, that would mean despite ER24’s claim that they secured me suitable employment, they would still owe a redundancy.

That aside, I did address the claim that ER24 assisted me to gain employment. Even if BMA had sent notification in lieu of ER24’s communication, this does not refute the fact that my application for employment was made externally, and prior to any notification from any company. I found the job advertisement online, prior to any communications. I also applied prior to any communications from any company or person relative to the event. Therefore ER24 cannot claim that they assisted me to gain employment or that their urging or guidance lead to my employment, as I have established that my application was prior to any communication.

I had no intention of “trivializing” ER24’s attempt at assistance post application, but only honestly advised, that for my personal circumstance, they did not assist in anyway. To say that my statement was “simply an untrue statement” is disregarding my personal efforts to secure my own employment on my own behalf. I had no personal contact or communication with any of the persons listed in the response to my submission, prior to my application for employment. Therefore I did not provide any “incorrect statement”.

The assertion that my gaining employment with another company was essentially a “shirt swap” entirely trivializes the effort I personally exerted, without the assistance of ER24 to gain my employment. Finally, when referencing the unsigned contract, relating to the pay cut issued in 2015, this was enforced under duress. It was widely understood that refuting this would have lead to a termination of employment. Our previous contract, which in my eyes, was not void, had our pay rate at approximately $100 per week better off after tax and was not taken lightly. If anything, referencing attempt at change of contract should reiterate the need for redundancy to be paid, particularly in this economic climate.

The meetings scheduled were not previous to both my application and the beginning of my proceeding through the application process, so even if they were attended, there was no information that ER24 could provide that I had not already ascertained of my own investigations.

In the case of my current position, my application was pitted against hundreds from other qualified applicants. I was advised verbally, that previous or current employment would not weigh on their decision to chose successful applicants. I reiterate that my current employment was gained entirely by my efforts and based on my merit, prior to any intersession by BMA or ER24. Therefore this was not a “shirt swap”, but my position was made redundant within ER24 and I gained employment with another employer without assistance from ER24.

There has never been specific mention of redundancy in contracts and I was not “aware that their employment was dependant on the Applicants ongoing contract”, I was in fact, under the assumption that the possibility of alternative employment would be available at other sites where contracts were held by ER24. I was not aware that their loss of contract at a particular site would mean a termination of my employment with the company. In saying that I also believed that in lieu of no redundancy mentioned in my contract meant it would refer to the award. Meaning that due to the position no longer being offered by ER24 would mean that a redundancy would be paid. I believe my contract, with ER24, stated that I should be willing to work at any nominated site. Communications received from ER24 did not state a “shirt swap”, but a “termination of employment” which I believed would result in a redundancy as my position would no longer be available within the company.”

[10] The Respondent did not provide any submissions in response to the further Direction providing an opportunity to address the issue of ordinary and customary turnover of labour.

Conclusion

[11] 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.

[12] 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.

[13] The Commission is objectively satisfied that the employment with the incoming contractor is “other acceptable employment” on the basis that Mr Euler’s current employment is substantially the same as his previous employment with ER24, as he is working similar hours at the same 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 Euler.

[14] I Order accordingly.

COMMISSIONER

 1   A copy of the decision [2017] FWC 383 was provided to the Respondent by email.

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