Mr Edward Kilsby v MSS Security Pty Ltd T/A MSS Security

The case involved Mr Edward Kilsby, who brought proceedings against MSS Security Pty Ltd, trading as MSS Security. The dispute centred on whether Mr Kilsby was entitled to a redundancy payment following the loss of his contract due to the cessation of his employer's contract with a third party. The matter was heard in the Fair Work Commission.

The central legal issues before the Commission were whether the loss of Mr Kilsby's contract constituted a redundancy under clause 2.7(b)(iii) of the applicable enterprise agreement and section 119(1)(a) of the National Employment Standards. Additionally, the Commission had to determine if the ordinary and customary turnover of labour in the industry warranted a redundancy payment. The Commission considered whether the loss of contract was part of the ordinary and customary turnover of labour, thereby potentially negating the entitlement to a redundancy payment.

The Commission found that the loss of Mr Kilsby's contract was not a redundancy as defined by the enterprise agreement and the NES. It was determined that the loss of the contract was not part of the ordinary and customary turnover of labour in the industry. Consequently, the Commission held that Mr Kilsby was not entitled to a redundancy payment. The Commission's reasoning was based on the specific circumstances of the industry and the nature of the contract, which did not align with the typical patterns of employment turnover.

The Fair Work Commission dismissed Mr Kilsby's claim for a redundancy payment. The decision underscored the importance of distinguishing between a genuine redundancy and a termination due to the loss of a specific contract, particularly in industries with high turnover rates. The Commission's ruling provided clarity on the application of redundancy provisions in the context of contract-based employment.