Er 24 Pty Ltd T/A Er 24 v Mr Paul Kelly

[2017] FWC 410

[2017] FWC 410

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 Paul Kelly
(C2016/5787)

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 Respondents who were employed as paramedics. That decision also includes the submissions of ER24 relevant to the Respondent in these matters. Mr Kelly made individual submissions as below.

Applicant’s submissions specifically on Respondent

[2] The Respondent, Mr Kelly, was employed by the Applicant in a full-time paramedic position at Hay Point 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 four (4) years and nine (9) 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 $14,616.00.

[6] The Applicant undertook the following steps for the Respondent in obtaining acceptable alternative employment with CPA:

“a. The steps outlined in paragraphs C 20 a.- o. in these submissions;
b. Email correspondence from the Applicant to the Respondent advising to apply directly to CPA or MSS through their Seek advertisements as per Mr Wicht’s Affidavit and attachment marked as TW41; and
c. Email correspondence from Mr Lawton of CPA to the Applicant as per Mr Wicht’s Affidavit and attachment marked as TW102.

The alternative acceptable employment that was offered but declined by the Respondent was as follows:
a. Full-time paramedic 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 would have been paid on or around $43.50 per hour with CPA;
d. The Respondent’s hours of work would continue to be 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 clinical functions to assess, treat, triage and where required evacuate patients from site to the most appropriate medical facility; and
ii. In cases of an emergency act within the accountabilities of the company’s emergency response procedures;
iii. Assist in management of company personnel who use prescription or non-prescription medication via the company medication declaration process, and where required develop medication management plans;
iv. Provide health monitoring assistance by identifying and monitoring personnel with non-work related conditions;
v. In conjunction with company representatives, develop cautionary duties plans to minimise the risk of aggravation of work related injury or illness within a 96 hour period;
vi. Undertake injury and illness assessments; and
vii. Participate in rehabilitation and return to work processes.”

Respondent’s submissions

[7] The Respondent provided the following submission to the Commission:

“I was contacted by CPA while working at Haypoint employed by ER24.
During discussions with CPA they identified that I would be financially responsible for;

• Flights to and from work - Brisbane to McKay $220 approximately a fortnight



• Accommodation



• Food



• Taxis to and from the airport



• Transport to and from accommodation and work

This would have potentially cost me approximately $25 000 per year
I was also asked to undertake relevant qualifications at my own cost.

All the requirements relating to this position with CPA was not financially suitable for my circumstances and I decided not to pursue this position as it did not constitute alternative acceptable employment for me based on the financial costs of the position and the qualification required that I did not have.

ER24 would have been aware that the position they claim to have taken steps to making available to me would be inaccessible as I did not have the required qualifications and there would be a significant decline in my income. lf this is considered acceptable employment, ER24 could have initiated conversations with any organisations as the alternative did not match the current financially or required qualifications.

After realising that the position with CPA did not match mv current position I emailed ER24 and informed them that I would not have a job and if there was any other positions available, I was informed there was no other positions available.

My new employment, which was gained after being made redundant by ER24, was employment that I gained myself with no assistance from ER24.

In regards to the tender process and ER24 not being successful with their application, this would be reflective of the incompetence of the management, as the general manager for ER24 was banned from every mine site due to using his phone while driving on site.”

[8] With respect to the Respondent’s argument as to the increased costs associated with the CPA position, the Applicant submitted as follows:

“5. The Respondent provides that CPA required him to incur the costs of his own training and qualifications in order to satisfy the requirements of his role. The Applicant is not required to pay the costs of the incoming employer and as per Mr Wicht’s Affidavit at paragraph 8, the Applicant stated in the consultation letter if any of the Respondent(s) required time off in order to obtain further qualifications that a written request was to be made to the Applicant. Had the Respondent requested time off to obtain same, the Applicant would have considered the request to assist the Respondent in obtaining acceptable alternative employment with CPA.”

[9] The Applicant referred to Mr Wicht’s Affidavit at paragraph 73 which provided that the Respondent was offered an acceptable alternative position with CPA but declined. Paragraph 73 is extracted as follows:

“73.1n email correspondence dated 22 June 2016 Mr Lawton enclosed an updated employee status list and the locations they would be taking over for my attention. Attached and marked as "TW102" is a copy of this email correspondence. It outlined the following:

a. Mr Kelly, Paramedic at Hay Point- offered and declined.”

[10] The Applicant further submitted the following applied:

“14. Termination
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.”

Consideration

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

[12] 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.

[13] 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

[14] 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.

[15] I Order accordingly.

COMMISSIONER

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

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