Er 24 Pty Ltd T/A Er 24 v Ms Barbara Mary Bright

[2017] FWC 386

[2017] FWC 386

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
Ms Barbara Mary Bright
(C2016/5753)

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 includes the submissions of ER24 relevant to the Respondent in these matters. Ms Bright made individual submissions as below.

Applicant’s submissions

[2] The Respondent, Ms Bright, was employed by the Applicant in a full time security position at Hay Point Mine paid an hourly rate of $28.00 per hour.

[3] The Security Services Award 2010 (the Award) applied to the Respondent’s employment.

[4] The Respondent had served three (3) years’ and one (1) week service with the Applicant.

Respondent’s submissions

[5] The Respondent provided the following as attachments to its submissions to the Commission:

• The letter of termination provided to Respondent by Applicant on 30 May 2016 (“Attachment 1”);



• Email from Applicant dated 16 May 2016 informing Respondent’s that ER24 was not successful in securing BMA contracts (“Attachment 2”);



• Seek advertisement listed on 20 May 2016 by Corporate Protection Australia (“Attachment 3”);



• Email from Jamie Donnes, Lead HSE at BNP Mitsubushi Alliance regarding job advertisement provided in hyperlinks (“Attachment 4”);



• Screenshot of seek advertisement (“Attachment 5”);



• Respondent’s cover letter for application for Security Officer at Corporate Protection Australia (“Attachment 6”);



• Respondent’s CV (“Attachment 6”);



• Email from Nyoka Harris at CPA Group confirming Applicant applied for job (“Attachment 7”);



• Email from Nyoka Harris at CPA Group regarding “notice of intent to employ – Hay Point” (“Attachment 8”);



• Copy of email from Nyoka Harris at CPA Group to Respondent attaching contract (“Attachment 9”);



• Copy of email from Respondent to Nyoka Harris at CPA Group stating that “I [Respondent] is currently inducted at Hay Point” (“Attachment 10”);



• Copy of immunisation list of Respondent (“Attachment 11”);



• Copy of letter from Applicant dated 20 May 2016 subject consultations for restructure (“Attachment 12”);



• Copy of letter from Applicant to Respondent outlining proposed information sessions (“Attachment 13”);

[6] The Respondent stated the Applicant requested the following information:

• The two (2) latest pay slips of the Respondent with MSS Strategic Medical and Rescue (MSS);



• The letter of offer issued to the Respondent by MSS;



• The Employment Contract between the Respondent and MSS; and



• The list of the duties undertaken by the Respondent at MSS

[7] However, in relation to the above requested information, the Respondent stated she is unable to provide this information as the Applicant never indicated, provided, communicated or supported her in obtaining employment at MSS. The Respondent argued that she had been successful in securing her own employment through an open merit recruitment process with another employer, CPA Group. This new employment started after the date of termination with the Applicant.

[8] The Respondent addressed the following criteria:

Whether the Applicant was entitled to be paid redundancy pay, in accordance with s.119 of the Act

[9] The Respondent argued that she is entitled to be paid redundancy according to s.119 of the Act as the Applicant provided her with a letter of termination on 30 May 2016. Further, the Respondent stated that the e-mail sent by Mr Matt Willis, Director of ER24 Pty Ltd, dated 16 May 2016, to the Respondent, outlined that the Applicant was unsuccessful in securing the BMA contracts.

The remuneration and conditions of the alternative employment found, including (in comparison to the former position)

[10] The Respondent submitted throughout the information supplied by the Applicant that there was a referral to MSS Strategic Medical and Rescue as referred to as the first provider. The Respondent submitted that she was never approached nor provided with any information, in relation to employment to this company, by the Applicant.

[11] The Respondent submitted she disagreed with the Applicant in relation to the fact that alternative employment was found by the Applicant. The Respondent submitted she applied to an open recruitment advertisement and received an email from Mr Jamie Donnes, Lead HSE, BHP Billiton Mitsubishi Alliance informing the site security of the advertisement.

[12] The Respondent submitted she applied for the position on 22 May 2016 with her resume and received a response from Nyoka Harris, Senior HR Department, CPA Group, in relation to the receipt of her application on 1 June 2016 in response to the advertisement.

[13] On 10 June 2016, the Respondent submitted she was informed via e-mail of a Notice of intent to employ – Hay Point by Ms Harris.

[14] On 22 June 2016, the Respondent submitted she received a letter of offer of employment from Ms Harris, Senior HR Department CPA Group.

[15] On 24 June 2016, the Respondent submitted she was requested to supply her site induction to Ms Harris. As an employment requirement for CPA Group, the Respondent was also required to have her immunisation record as per the job advertisement.

[16] In relation to the rate of pay, the Respondent submitted this was not comparable as her current employer is paying less than the Applicant.

[17] The Respondent submitted the location, hours of employment and duties remain similar to that of when the Applicant was her employer.

[18] Further, the Respondent submitted that her security accreditation, including the maintenance of this accreditation, is at her own expense and always has been at her own expense. These accreditations are essential to my role within my current employment and that with the Applicant.

Whether the alternative employment was obtained by the Employer

[19] The Respondent submitted she has obtained the position she is current employed in through an open merit process including applying for the position externally. She stated she has been required to gain additional requirements to meet the employment conditions of her current employer at her own expense.

Whether the alternative employment was or was not, acceptable, and why

[20] The Respondent submitted she was never provided any information in relation to the potential employment at MSS or any other employer.

The length of the Respondent’s service with the Applicant; and

[21] The Respondent submitted that she was employed for the period of 3 years and 1 week.

How much redundancy payment the Respondent is entitled to

[22] The Respondent submitted that she is entitled to a 7 week pay period according to s.119(2) of the Act. The Respondent submitted that the Applicant stated the Respondent was receiving an hourly rate of $28.00 per hour in her previous position. Given that the Respondent worked thirty-eight (38) hours a week, plus approximately an average of four (4) hours of reasonable additional hours per week, the Respondent submitted she would be entitled to $8,232.00 of redundancy payment.

Respondent’s submissions on ordinary and customary turnover of labour

[23] The Respondent submitted she disagreed that the terminations of employment were due to the ordinary and customary turnover of labour, rather, she believed that she was entitled to be paid redundancy under s.119 of the Act.

[24] Pursuant to s.119 of the Act, the Respondent submitted that not all staff employed at her job site by the Applicant had their employment terminated and that this indicated that the Applicant did have alternative employment for staff and choose to terminate her employment rather than offer her another role within the organisation.

[25] The Respondent submitted that the Applicant made the choice to terminate her employment regardless of the availability of employment within the organisation.

[26] The Respondent noted that it was only after she was informed that her employment was going to be terminated that she began looking for alternative employment opportunities.

[27] The Respondent submitted at no stage in this process did she ever indicate that she was not interested in redeployment options or on-going employment with the Applicant.

Conclusion

[28] 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.

[29] 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 her accrued statutory and award entitlements on termination of the Respondent’s employment.

[30] Ms Bright provided that the location, hours and duties are similar to those of when the Applicant was the employer for the site. Ms Bright provided her current employer pays a lower rate than what she earned while employed with the Applicant.

[31] The Commission is objectively satisfied that the employment with the incoming contractor is “other acceptable employment” on the basis that Ms Bright’s current employment is substantially the same as her previous employment with ER24, as she is working similar hours, with similar duties in the same location. While Ms Bright submits that the employment is not acceptable, 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 Ms Bright.

[32] I Order accordingly.

COMMISSIONER

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

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