Er 24 Pty Ltd T/A Er 24 v Ms Emma Maria Keenan

[2017] FWC 408

[2017] FWC 408

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 Emma Maria Keenan
(C2016/5782)

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.

Applicant’s submissions

[2] The Respondent, Ms Keenan, was employed by the Applicant in a full-time paramedic position at Blackwater Mine paid an hourly rate of $43.50 per hour.

[3] The Paramedic Award applied to the Respondent’s employment.

[4] The Respondent had served two (2) years and 7.5 months’ service with the Applicant.

[5] The Applicant further submitted as follows:

“Specifically that the Respondent was offered redeployment as per the attachment marked TW16 of Mr Wicht’s Affidavit. The terms of the redeployment were as follows:
a. Full time Paramedic at Curragh Mine; and
b. An hourly rate of $43.50.

537. The Respondent was previous employed with the Applicant on the following terms:
a. Full time Paramedic at Blackwater Mine; and
b. An hourly rate of $43.50.

539. 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.

540. The Respondent was offered redeployment with the Applicant as follows:
a. Full-time paramedic;
b. Located at Curragh Mine;
c. An hourly rate of pay of $43.50; and
d. The Respondent stated that she was unable to commit to the position offered as per Mr Wicht’s Affidavit and the attachment marked as TW72 and TW73.”

Respondent’s submissions

[6] The Respondent did not provide any submissions to the Commission.

Consideration

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

[8] 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.

[9] 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

[10] 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 6 weeks redundancy pay for between 2 and 3 years of service. I consider it appropriate to vary the redundancy pay to three (3) weeks.

[11] An Order [PR593277] reflecting the terms of this decision will issue separately.

[12] I Order accordingly.

COMMISSIONER

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

Printed by authority of the Commonwealth Government Printer

<Price code A, PR589544>