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

[2017] FWC 413

[2017] FWC 413

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 Young
(C2016/5791)

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 Young made individual submissions as below.

Applicant’s submissions

[2] The Respondent, Mr Paul Young, was employed by the Applicant in a full-time paramedic position at Goonyella Riverside 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 two (2) years and four (4) months’ service with the Applicant.

[5] Due to the Respondent’s length of service being more than two (2) years but less than three (3) years the Respondent is entitled to six (6) weeks redundancy payment. Based on the Respondent’s base rate of pay and their ordinary hours worked the redundancy payment would equate to $10,962.00.

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

“ The steps outlined in paragraphs C 20a.-o in these submissions; and
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 TW42.

733. The alternative acceptable employment that was offered and accepted by the Respondent was as follows:
a. Full-time paramedic position;
b. Located at Goonyella Riverside 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 MSS;
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 MSS 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, in response to the original application providing the Applicant had obtained acceptable employment:

“This box has been incorrectly ticked as yes. After being given notice of termination as a paramedic by ER24, I was successful in gaining a dual role as a Paramedic/Emergency Services Officer with MSS Strategic Medical (MSSSM). This was due to my efforts alone through application, short listing and interview process. The new position required a Certificate 111 in mines rescue, among other courses as it was no longer just a paramedic role. The position as Paramedic/ESO was advertised and applied for through seek.com.au. I have retained copies of my original application to verify this.

My position at ER24 Goonyella Riverside Mine is listed as paramedic only, this part is correct. However, my current employer MSS Strategic Medical had no positions for standalone paramedics; this can be confirmed by my new employer and by BMA. To obtain employment with MSS Strategic Medical, I had to take on a dual role as ESO paramedic. To be successful in my application, I had to undertake training courses in:
Certificate 111 Mines Rescue, (See attachment 1 & 1 a).
Fire Teams Operations. (Pay deductions fortnightly by MSSSM)
Return to Work Coordinator (Pay deductions fortnightly by MSSSM)

All this was at considerable personal cost to myself. I have also had to use my annual leave to complete this training (see attachment 2 & 2a).
In addition to this, there was a
Rescue medical (see attachment 3)
Physical Fitness Assessment (see attachment 4)
All amounting to somewhere in the region of $10,000 of which I have receipts for.”

Respondent’s submissions on Ordinary and Customary Turnover of Labour

[8] The Respondent stated that he believed his termination of employment was not due to Ordinary and Customary Turnover of Labour following reasons:

“ Nowhere in my contract with ER24 does it state that I would not be entitled to redundancy. Para 14.1(a)(i) to 14(a)(xi) refers to loss of employment by any misconduct of the employee resulting in “no further claim against the employer for compensation”, 14 (b)(i) does not state any clause of which compensation will not be paid. There is no other mention of redundancy not being paid or compensation not being considered in the event that my contract is terminated through reasons outside of my control.

• Paragraph 8 clause 2.7(b)(iii) “to avoid doubt s.119 of the NES does apply to an employee of an outgoing contractor where the employee is not offered acceptable employment with either the outgoing contractor or the incoming contractor”. I was not offered continued employment with ER24. Neither was I offered employment by the incoming contractor for a position as a paramedic.



• The position for a Paramedic no longer exists at Goonyella Riverside Mine. The new position at Goonyella Riverside mine that I secured myself was for a Paramedic Emergency Services Officer. (Paramedic, fire and rescue) requiring additional training as fire and rescue was not part of my previous role.”

Consideration

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

[10] 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.

[11] 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

[12] 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.

[13] I Order accordingly.

COMMISSIONER

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

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