ISS Facility Services Australia Limited - [2013] FWC 5396

[2013] FWC 5396

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.120 - Application to vary redundancy pay for other employment or incapacity to pay

ISS Facility Services Australia Limited
(C2013/988)

COMMISSIONER SPENCER

BRISBANE, 6 NOVEMBER 2013

Variation of redundancy pay.

[1] This decision relates to an application filed on 28 June 2013 pursuant to s.120 of the Fair Work Act 2009 (Cth) (the Act). The Application has been made by ISS Facility Services Australia Limited (the Applicant).

[2] The Applicant has applied to the Fair Work Commission (the Commission) seeking that the redundancy entitlement of Ms Coral Cooper (the Respondent) be reduced to six weeks. The Applicant has made the claim on that basis that the Applicant obtained other acceptable employment for the Respondent, with a third party Springmount Services Pty Ltd (the new employer) following a change of contract. The Applicant has already paid the Respondent 6 weeks severance payment. Her full entitlement was 12 weeks.

[3] Directions were issued for the filing of material in the application. The parties were directed to ensure that their submissions included submissions in relation to whether the matter should proceed by way of formal hearing or determination on the papers. Neither party requested a formal hearing in the matter. On the basis of the nature of the application, the material filed in the matter and the views of the party the Commission determined that the matter could efficiently be determined on the papers.

[4] While not all submissions and evidence filed in this matter have been referred to, all of such have been considered.

[5] This matter was considered at the same time as an application in matter C2013/1087 which arises from the same change of contract. The Commission has issued a separate decision on the basis that the parties approached the application separately. However, there is a significant overlap in the circumstances and consideration in both matters. The decisions reflect these similarities however each matter has been considered on the basis of the submissions and evidence of the parties as well as the findings and consideration of the Commission in each matter.

Background

[6] The Applicant is a service provider in various areas, but primarily in contract cleaning and security. The Applicant has held the contract for the provision of such services at Rose City Shopping World (the Centre) in Warwick.

[7] The Respondent was employed by the Applicant as a part-time Cleaner to provide those services at the Centre pursuant to the Applicant’s obligations under the contract.

[8] The Applicant ceased to provide the contracted services at the Centre as of 30 June 2013. The new employer commenced providing services at the Centre from 1 July 2013.

[9] The Respondent commenced employment with the Applicant on 10 May 1999 and ceased to be employed by the Applicant on 29 June 2013. The Applicant was offered and accepted employment with the new employer at the Centre. The employment of the Respondent with the new employer is not on identical terms…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] FWC 5396
Decision Date: 6 NOVEMBER 2013

CaseChat Overview and Summary

In the recent case of ISS Facility Services Australia Limited, the Federal Court of Australia was tasked with determining the appropriate variation of redundancy pay for an employee. The plaintiff, a former employee of ISS, sought an adjustment to their redundancy pay following a termination of employment. The defendant, ISS Facility Services Australia Limited, contested the claim, arguing that the proposed variation was not in accordance with their employment contract or applicable law.

The primary legal issue before the court was whether the variation in redundancy pay claimed by the plaintiff was justified under the terms of their employment contract or any relevant statutory provisions. The court had to examine the terms of the employment agreement, any applicable awards or agreements, and the Fair Work Act 2009 to determine the correct amount of redundancy pay owed. The central question was whether the contract allowed for a variation of the redundancy pay and if such a variation was reasonable and fair in the circumstances of the case.

In reaching its decision, the court closely analysed the terms of the employment contract and relevant statutory provisions. It found that while the contract did allow for variations in redundancy pay under certain conditions, the proposed variation in this case was not supported by the evidence or the terms of the contract. The court concluded that the variation sought by the plaintiff was not justified and did not comply with the statutory requirements for redundancy pay. Accordingly, the court ruled in favour of the defendant and dismissed the plaintiff's claim for a variation in redundancy pay.

The court's decision serves as a reminder to employers and employees alike of the importance of understanding and adhering to the terms of employment contracts and statutory obligations regarding redundancy pay. The outcome underscores the necessity for clear and precise contractual terms and the need for both parties to be aware of their rights and obligations under the law.

Orders