Euro Natural Stone Pty Ltd

[2021] FWC 1352

[2021] FWC 1352

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.120—Redundancy pay

Euro Natural Stone Pty Ltd
(C2020/6878)

COMMISSIONER MCKENNA SYDNEY, 12 MARCH 2021

Variation of redundancy pay.

[1] In this matter, Euro Natural Stone Pty Ltd (“Euro Natural Stone”) made an application on 10 September 2002, pursuant to s.120 of the Fair Work Act 2009, to reduce redundancy payments to Pramesh Karki to nil. While Euro Natural Stone is a small business, the relevant provisions (including notes) of the applicable award, the Joinery and Building Trades Award, read:

“37. Redundancy

NOTE: Redundancy pay is provided for in the NES. See sections 119 to 123 of the Act. Clause 37.4 supplements the NES by providing redundancy pay for employees of a small business employer.

37.1 Transfer to lower paid duties on redundancy

…

37.2 Employee leaving during redundancy notice period

…

37.3 Job search entitlement

…

37.4 Redundancy pay for employee of small business employer

(a) Clause 37.4 applies to an employee of a small business employer except for an employee who is excluded from redundancy pay under the NES by sections 121(1)(a), 123(1), 123(4)(a) or 123(4)(d) of the Act.

(b) In clause 37.4(a) an employee is an employee of a small business employer if, immediately before the time the employee’s employment is terminated, or at the time when the employee is given notice of termination as described in section 117(1) of the Act (whichever happens first), the employer is a small business employer as defined by section 23 of the Act.

(c) Subject to clauses 37.4(f) and 37(4)(g), an employee is entitled to be paid redundancy pay by the employer if the employee’s employment is terminated:

(i) at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or

(ii) because of the insolvency or bankruptcy of the employer.

(d) The amount of the redundancy pay in clause 37.4(c) equals the total amount payable to the employee for the redundancy pay period specified in column 2 of Table 2—Redundancy pay period according to the period of continuous service of the employee specified in column 1, worked out at the employee’s base rate of pay for his or her ordinary hours of work.

Table 2 Redundancy pay period

Column 1
Employee’s period of continuous service with the employer on termination

Column 2
Redundancy pay

period

Less than 1 year

Nil

At least 1 year but less than 2 years

4 weeks

At least 2 years but less than 3 years

6 weeks

At least 3 years but less than 4 years

7 weeks

At least 4 years and over

8 weeks

(e) In clause 37.4(d) continuous service has the same meaning as in section 119 of the Act.

(f) The terms of section 120 of the Act apply as if section 120 referred to ‘clause 37.4(c) above’ rather than ‘section 119’.

NOTE: Under section 120 of the Act the Fair Work Commission can determine that the amount of redundancy pay under the NES is to be reduced if the employer obtains other acceptable employment for the employee or cannot pay that amount. Clause 37.4(f) applies these arrangements also to redundancy pay under clause 37.4.

(g) The terms of section 122 of the Act apply as if section 122 referred to ‘clause 37.4’ rather than ‘this Subdivision’ and to ‘clause 37.4(c) above’ rather than ‘section 119’.

NOTE: Under section 122 of the Act transfer of employment situations can affect the obligation to pay redundancy pay under the NES and the Fair Work Commission can make orders affecting redundancy pay. Clause 37.4(g) applies these arrangements also to redundancy pay under clause 37.4.”

[2] It proved unnecessary for me to proceed to formally hear and determine the application, because an arrangement was made between Chris Jarrett (a director of Euro Natural Stone) and Mr Karki for the phased timing of redundancy payments. On that basis, the matter was, on 16 October 2020, stood-over pending the filing and service of a notice of discontinuance - which was anticipated after 4 December 2020, being a date after the completion of the phased payments.

[3] The notice of discontinuance was not filed, despite follow-up contact by my Associate. The matter was relisted on 3 March 2021 concerning the well-overdue notice of discontinuance; there was no appearance by or on behalf of Euro Natural Stone. Moreover, endeavours by my Associate to contact Mr Jarrett/Euro Natural Stone were unsuccessful. In the proceeding before the Commission on 3 March 2021, Mr Karki submitted that he had received only partial payment from Euro Natural Stone and, otherwise, had been unsuccessful in his own endeavours to contact the business albeit it appeared the business had been operating when he had most recently been in the vicinity of his former workplace.

[4] I caused a notice of listing and a letter to be sent to Mr Jarrett/the Proper Officer of Euro Natural Stone by express post concerning a further listing on 12 March 2021. The letter advised that the application would be dismissed without further notice if there was no appearance by or on behalf of Euro Natural Stone in the proceeding on 12 March 2021. Australia Post tracking records confirm that the express post envelope containing the notice of listing and letter was successfully delivered to Euro Natural Stone on the afternoon of 9 March 2021.

[5] There was no appearance by or on behalf of Euro Natural Stone when the matter was listed on 12 March 2021. Moreover, my Associate’s endeavours that day to contact Mr Jarrett personally and the business were unsuccessful.

[6] Mr Karki explained he had now approached the Fair Work Ombudsman for assistance in relation to seeking his redundancy payments.

[7] Euro Natural Stone has failed to adhere to the arrangement made between Mr Jarrett and Mr Karki in relation to phased redundancy payments. More relevantly to the application itself, Euro Natural Stone has been uncontactable by means of email and telephone, despite the recent endeavours by my Associate in connection with the listings on 3 March 2021 and 12 March 2021. There was no appearance by or on behalf of Euro Natural Stone in the proceeding on 12 March 2021, albeit Australia Post tracking recorded that the notice of listing and accompanying letter with its advice concerning dismissal of the application were successfully delivered on 9 March 2021.

[8] In the circumstances, the application is dismissed for want of prosecution. An order will issue separately.

COMMISSIONER

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