Er 24 Pty Ltd T/A Er 24 v Mr Vaughan Tocher

[2017] FWC 415

[2017] FWC 415

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 Vaughan Tocher
(C2016/5783)

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

Applicant’s submissions

[2] The Applicant submitted the Respondent was employed by the Applicant as a full time Paramedic at Broadmeadow Mine and was paid an hourly rate of $46.93 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 1.5 months’ service with the Applicant.

Respondent’s submissions

[5] The Respondent submitted that he was an Intensive Care Paramedic at Broadmeadow mine for duration of 3 years and 1.5 months’ and subsequently made redundant. Presently, the Respondent submitted he is employed with MSS, as an Advanced Care Paramedic at the Broadmeadow mine, and the application for this employment was undertaken through SEEK.

[6] Accordingly, the Respondent submitted he should be entitled to 7(weeks) x 42 Hours x $46.93 = $13 797.42 pursuant to section 119(1)(a) of the Act.

[7] The Respondent submitted he received $102 500 per annum whilst employed with the Applicant, however, now he receives $95 000 per annum. The Respondent believed he has additional financial obligations of $8000 to ensure he remains employed with MSS. Accordingly, he stated his actual yearly earnings is $87 000. Further, the Respondent submitted that due to the Applicant’s loss of contract, the Respondent has lost entitlements which the Respondent gained whilst working for the Applicant.

[8] In relation to the hours of employment and accommodation of the new position, these conditions are similar to his original employment with the Applicant.

[9] The Respondent submitted that the Applicant has not assisted in finding the Respondents alternative employment. In relation to this, the Respondent stated he never received any notification that there was a process in place for a smooth transition (carrying all my entitlements including sick leave and leave across) nor any other assistance given. Further, the Applicant did not assist with applications, negotiation of salary, entitlements, interviews or securing my current position.

[10] The Respondent submitted in relation to the redeployment offer at Burton Mine, the Respondent was offered a lower salary of $95 000 per annum and was required to complete a 7 day training course which cost $8000 and would have required the Respondent to utilise 7 days of annual leave. Further, the Burton Mine site is due to cease operations before the end of the year which, the Respondent submitted, would have only provided him with approximately 6 months’ work. The Respondent stated he did not decline this offer, however, the time for acceptance lapsed after 24 hours and the Respondent was not able to make a decision in time frame due to the limited information provided by the Applicant.

[11] Subsequently, the Respondent submitted he was forced to apply to MSS and take a position with a lower wage, lower clinical skill level as well as being forced to surrender his work entitlements due to the termination by the Applicant.

Respondent’s submissions on ordinary and customary turnover of labour

[12] The Respondent submitted that he disagreed that the termination of employment was due to ordinary and customary turnover of labour and accordingly stated the following:

“To substantiate this, I refer to the Gregory Crinum mine (GCM) where I was the supervisor for the Paramedic and Security teams. GCM was coming to the end of its lifespan in late 2015. As the staff and I were aware and concerned about the closure and possible loss of jobs, I wrote to the executive to establish where we all stood. To the best of my recollection, the reply I received was that those staff affected by the closure would be redeployed to other sites. Following this, myself and various others were in fact redeployed prior to the closure of GCM and remained employed within the ER24 group. I had also had a few face to face discussions with Matt Willis prior to the closure of GCM during which he verbalised and was confident of other upcoming contracts such as ADANI mine in QLD. Matt had stated to me that ER24 would be requiring more staff to fill these contracts and existing staff would be redeployed to key roles. These discussions lead me to believe there would be ongoing work with ER24 for the foreseeable future and thus created an expectation of continued employment.”

[13] The Respondent submitted that a reasonable expectation of continuing employment had been established because there was no intermittency in employment because of the nature of the business, the reason for the loss of business was not due to staff poor performance or lack of performance but rather the failure of the company to re-secure the contract through the tender process.

[14] As articulated in the quote above, the Respondent submitted that at the end of contracts, the Applicant’s employees are generally redeployed as opposed to being terminated. Accordingly, the Respondent believed the terminations were not a normal feature of the business and therefore not due to the ordinary and customary turnover of labour. The Respondent believed that the Applicant’s failure to re-secure the contract was the occasion for the termination, not the reason for the dismissal and thus not due to the ordinary and customary turnover of labour.

[15] The Respondent submitted that as the Applicant’s employees, they had a fair reason to believe that if they performed well it was likely that the BMA mining contract would be renewed.

Consideration

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

[17] 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.

[18] As I have summarised in Brown, the other employment was obtained (as per the case law) by the Applicant in terms of their offer of redeployment, and while the resultant position provided terms that were not exactly the same, I am nonetheless satisfied it was objectively acceptable.

Conclusion

[19] Accordingly, for the aforementioned reasons I am 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. The Respondent has an entitlement to 7 weeks redundancy for between 3 and 4 years of service. I consider it appropriate to vary the redundancy pay to four (4) weeks.

[20] An Order [PR586887] reflecting the terms of this decision will issue separately.

[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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