Er 24 Pty Ltd T/A Er 24 v Ms Tamika Webber

[2017] FWC 411

[2017] FWC 411

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 Tamika Webber
(C2016/5789)

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. Ms Webber made individual submissions as below.

Applicant’s submissions specifically on Respondent

[2] The Respondent, Ms Webber, was employed by the Applicant in a full-time paramedic position at Peak Downs Mine paid an hourly rate of $45.79 per hour.

[3] The Paramedic Award 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 $11,539.08.

[6] Further, the Applicant submitted that, in addition to the list of steps above, they took the following steps in obtaining other employment:

“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 TW46.”

[7] The Applicant provided details of the other employment as follows:

“a. Full-time paramedic position;
b. Located at Peak Downs 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 $45.79 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

[8] The Respondent summarised her previous and current positions as follows:

“Previous Employment - ER24 - Emergency Response 24
Role: Paramedic Team Leader at Peak Downs Mine
Employment Duration: February 2013 - June 30th 2016- 2 years & 4 months
Status: Full time
Rate of pay: 45. 791hour

Current Employer- MSS - Medical Strategic Services
Role: Paramedic Emergency Services Officer (PESO) at Peak Downs Mine
Employment Duration: July 1st 2016- currently employed
Status: Full time
Rate of pay: 43.501hour”

[9] The Respondent provided the following submission to the Commission along with the attachments referred to as follows:

“I strongly disagree with the application from ER24 to vary redundancy due to the following points:

1. At no stage was I told or notified that I had 'secured' employment. Due to ER24 losing the contract at Peak Downs mine my employment as a paramedic was terminated on the 2"" of June 2016 (see attachment 1). MSS was successful in winning the contract of which the paramedic role became null and void and the role was changed to a paramedic/rescue/firefighting role known as a Paramedic ESO (PESO). I was required by MSS to apply through 'Seek' to be eligible for this position and did so on the 19th May 2016. (See attachment 2). Here I had to provide evidence in my application of why I was a suitable candidate for the role, I was required to apply and meet the selection criteria in the recruitment process against all other public applicants and if I failed to do so I was not employable. (see attachment 3) At no stage was this application assisted, supported or advised by ER24. I was later contacted by MSS recruitment via my application from seek by Officer Shahna Frost. I was notified that I had progressed to the next stage and was asked if I could be available for an interview with Michael Jones MSS clinical consultant on 3oth of June. (Please see attachment 4 from Shahna Frost 25th May 2016). Upon successful completion of my interview I then had to produce all of my credentials, birth certificates, license and evidence of qualifications to be offered a full time position with MSS (Please see attachments 5). At no stage was this process setup, assisted or organized by ER24. As I was competing for a position with MSS against all other external applicants confirming the position was never secured for me.

2 To be successful in gaining a position with MSS, I was required to complete and pass a pre-employment medical and a functional capacity evaluation at a cost to myself. These included:

-Physical Functional Capacity Evaluation $355
-Rescue Coal Board medical $478.50 plus doctors clearance fee $60

As the position I was to be employed in with MSS was greatly different than my previous Paramedic role with ER24 (see attachment 6 & 7), my ER24 medical (Paramedic only} did not cover the requirements to be employed by MSS as a Paramedic Emergency Service Officer (PESO- paramedic, emergency rescue and firefighter). If I had failed to pass either test, I would not have been employed by MSS. (Please employment contract segment- attachment 3) My out of pocket expenses even prior to the mandatory job qualifications I needed to complete before I was able to be employed totaled $893.50 ( please see attachment 8 - invoices from Sonic Health and Job Fit Systems.)

3 My new role with MSS was that of 'Paramedic ESO' as opposed to just Paramedic with ER24. In order to qualify for this position I had to successfully complete and pass the following mandatory qualifications: (see attachment 6 & 7).

The course components I needed to successfully complete were as follows:
a. Certificate 3 in Mines rescue:

-Operate a breathing apparatus
-Confined space rescue
-Vertical rescue
-Road crash rescue
-HAZMA T Response

b. Return to work Certificate
c. S1 S2 S3 Course

These qualifications were a compulsory component of the new job description at Peak Downs Mine, vastly different to the position I held as a paramedic with ER24 also at Peak Downs Mine. I did not have these qualifications or medical clearances upon my termination with ER24. I was required to pay for these at my own expense totalling $3,202.50, and should I not have successfully passed or completed any one of these components I would not have been employed as per my MSS contract see attachment
3. (Please also see attachments 9 for course invoices)

By this point I highlight that the alternative employment available was not acceptable.

1. Despite my new role as a Paramedic ESO requiring more qualifications and job requirements than my role with ER24, I was forced to take a position that was $5,000 less a year than I was earning with ER24 in order to have employment. ER24 were paying me $45.79 per hour as with MSS I am earning $43.50 per hour. (Please see attachments 10 & 11). With the vastly different job requirements, combined with the mandatory up skilling, the completion and passing of expensive medicals and capacity evaluations all at my own expense and in my own time confirm that ER24 has at no stage obtained acceptable employment for myself nor have they secured a position for me.

2. Prior to my termination with ER24 on the 2"d of June 2016, ER24 made me no offer of alternate employment. I then proceeded to apply and look for alternative work myself. Three weeks after receiving my termination letter, I received a call on June 191h 2016 from Jason Scott, ER24 General Manager. (see attachment 12) He called to ask if I would consider 'a 12week 'redeployment' opportunity at Burton Mine' which was to be closing down in 12wks time. I responded in email declining the offer of only 12wks weeks work stating this was inadequate and that I accept that I was terminated three weeks prior on the 2nd of June 2016. I asked could they please respond regarding my entitlements as per my previous emails of which I never did receive a response. (See attachment 13 for correspondence)

•· After numerous attempts at contacting ER24 after I had been terminated, received no response answering my countless emails (please see forwarded email marked - ER24 correspondence: attachment 13). The only email I received answering any of my queries stated 'We are in liaison with MSS and CPA to transfer your employment'. I was then paid out my annual leave entitlements on the 1st of July 2016 suggesting this was a mistruth that there was to be no transfer of employment and if I had not applied for positions myself I would be currently unemployed.

From these points I highlight that I do not agree with the application to vary redundancy as made by ER24 under point s.120 of the fair work act 2009 and believe I am entitled to my redundancy of $11,539.08”

Respondent’s submissions on ordinary and customary turnover of labour

[10] The Respondent submitted as follows in relation to the issue of ordinary and customary turnover of labour:

“I strongly disagree that my termination of employment with ER24 was due to the ordinary customary turnover of labour’, due to the following points:

1. Nowhere within my contract with ER24 does it say that I am employed solely for the purpose of the nominated site only. Point 2.2 of my contract states I may be transferred or required to perform my duties at any other ER24 contracted mine site at their discretion. Item 5 of the schedule also states that I may be moved to other sites as directed by ER24. Nowhere within this contract does it bind me specifically to the nominated mine site only, leaving me with the impression that I was an employee of ER24, and all of their mine sites of which they conduct business – not specifically a the nominated site only. With 2.2 in mind, if ER24 was unsuccessful in securing the nominated site contract, I would be redeployed to another site with other contracts that ER24 also held. As I was terminated as an ER24 employee not bound specifically to a contract prior to any offer of redeployment, I therefore deem I am not subject to be bound by the constraints of ‘customary turnover of labour’.

2. Regarding point [20] of the applicants submission relating to the ordinary customary turn over of labour, refers to not having to pay a redundancy based on the employer finding a ‘ comparable position’ for the former employee. ER24 have failed to do this for myself as seen by the compulsory financial outlay on prerequisite rescue training courses totaling $3,200.50 required for me to pay upfront and pass before I could be considered in the application process for a new position. The role I was successful in attaining with MSS was also $5000 dollars less per annum than my previous salary with ER24 confirming the roles were not at all comparable.

3. I refer to the following case involving the Compass group Pty Ltd seen at - My employment was also ambiguous with no specific start or end date of employment, or start or end date of the contract with a nominated mine site is locatable on my contract. This implied to me that I was employed directly to ER24 and not to a contract specifically and would be redeployed to other sites. This has been seen in previous instance where ER24 are unsuccessful in securing contracts and supported by their offer of ‘redeployment’ three weeks after I had already been terminated on June 2nd 2016. This suggests that this is not the general nature of the business and gave indication of a reasonably settled expectation of ongoing employment.

Due to these points I believe my termination was not due to the ‘ordinary customary turn over of labour’ and am entitled to a redundancy.”

Summary of Applicant’s material in reply

[11] The Applicant refuted the allegation that the Applicant “at no stage…assisted, supported or advised” the Respondent to obtain acceptable alternative employment with MSS.

[12] The Applicant referred to the Affidavit of Mr Hendrik Mare, Project Manager of the Applicant, as evidence that the Applicant directed time and resources to assisting the Respondents in securing acceptable alternative employment. Mr Mare stated as follows:

“7. On or around 23 May 2016 I attended a meeting with Mr Matt Willis, Director, Mr Chris Wicht, Director, Mr Jason Scott, General Manager, Mr Tommy Wicht, Human Resources/Accounts, Mr John Hickson, Operations and Training Coordinator, Mr Hans Wicht, Head of Resource and Logistics (Head Office Meeting).

8. The purpose of the Head Office Meeting was to discuss and implement the demobilisation plan to ensure a smooth transition for ER24 employees to obtain acceptable alternative employment with the new providers.

9. During the Head Office Meeting Mr Willis directed me and Mr Hickson to visit each mine site and conduct face-to-face information sessions with every employee affected by the unsuccessful tender.

10. ln the Head Office Meeting, Mr Willis directed me that my main priority from that day until the end of the BMA contract on 1 July 2016 was to keep our employees up to date with any developments in obtaining alternative employment with the new providers and to answer any questions the employees may have.”

[13] Further, the Applicant submitted that it emailed to the Respondent a copy of the information sessions held by the Applicant and further reiterated there were no missing requirements for the transfer of their employment.

[14] The Applicant submitted that the Respondent has discounted the great lengths the Applicant went to ensure that the Respondent was provided with acceptable alternative employment.

[15] The Applicant submitted that the Respondent has transferred employment at the same location, on relatively the same pay as with the Applicant, has had her entitlements paid out by the Applicant and was arguing that redundancy payment is due and owing to what was essentially a ‘shirt swap’.

[16] The Applicant submitted it was clear from Mr Wicht’s Affidavit in particular, there was regular correspondence with Mr Nick Prass of MSS, regarding the Respondent(s) and the application process in securing acceptable alternative employment with MSS.

[17] The Applicant submitted that the Respondent has discounted the great lengths the Applicant went to ensure that the Respondent was provided with acceptable alternative employment.

[18] With respect to the Respondent’s argument as to the personal costs involved for the MSS position, the Applicant submitted as follows:

“8. The Respondent provides that MSS required her to incur the costs of her own training and qualifications in order to satisfy the requirements of her 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 MSS.”

[19] The Applicant provided a copy of the Respondent’s latest employment contract, and relied on the following clauses:

“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.”

[20] The Applicant submitted that the Respondent was aware that their employment was dependent on the Applicant’s on-going contract with the mine site operator.

Consideration

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

[22] 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.

[23] 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

[24] 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.

[25] I Order accordingly.

COMMISSIONER

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

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