Perth North Metro Medicare Local Ltd Summary

[2013] FWC 8439

FAIR WORK COMMISSION

DECISION

AND

REASONS FOR DECISION

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

Perth North Metro Medicare Local Ltd
(C2013/6130)

COMMISSIONER CLOGHAN

PERTH, 25 OCTOBER 2013

Ms Nadia Lee - variation of redundancy pay.

[1] On 24 September 2013, Perth North Metro Medicare Local Ltd (Applicant or Employer) made application to the Fair Work Commission (Commission) pursuant to s.120 of the Fair Work Act 2009 (FW Act) to vary the redundancy pay due to Ms N Lee (Ms Lee or Employee) as a consequence of the Employer obtaining other acceptable employment.

[2] The application was the subject of a conference on 21 October 2013. The Employer was represented by Ms Cork. Ms Lee attended as the affected Employee.

[3] The Employer is in the primary healthcare industry.

[4] The Employee commenced employment with the Employer on or around November 2011. On or around January 2012, the Employee was appointed a Band 6, Primary Health Education Officer and Team Leader.

[5] On 1 March 2013, the Employer notified Ms Lee that her position was being abolished. Ms Lee was given two options. In the first instance, Ms Lee was offered the newly created position of Primary Health Education Officer with no change to her existing contract of employment. Ms Lee was also advised to review other vacant positions within the organisation. Should Ms Lee adopt this course of action, the Employer advised that it would make application to the Commission to vary the redundancy pay to Ms Lee in view of finding alternative employment.

[6] The alternative option was for Ms Lee to be paid her redundancy entitlements pursuant to the Osborne Park GP Network Ltd Collective Workplace Agreement 2009 and all other accrued entitlements including “time off in lieu”.

[7] The Employee accepted the new position of Primary Health Education Officer, signed her contract of employment on 14 March 2013 and commenced in the role on 1 April 2013.

[8] On 20 May 2013, the Employee communicated with the Employer advising that she was entitled to a level of redundancy pay and requested that the Employer refer the matter to the Commission to determine the appropriate level of redundancy pay, if any.

[9] At the conclusion of the conference on 21 October 2013, I provided Ms Lee with the opportunity to advise the Commission by 4:00 pm Wednesday 23 October 2013 whether she wished for the application to be heard and determined. No communication was received from the Employee.

RELEVANT STATUTORY FRAMEWORK

[10] Section 119 specifies the entitlement of the employees.

[11] Section 120 provides:

“(1) This section applies if:

(a) an employee is entitled to be paid an amount of redundancy pay by the employer because of section 119; and

(b) the employer:

(i) obtains other acceptable employment for the employee; or

(ii) cannot pay the amount.”

CONSIDERATION AND CONCLUSION

[12] Having considered the statutory provisions, the information contained in the application and at the conference on 21 October 2013, I am satisfied that, in accordance with s.120(1)(b)(i) of the FW Act, the Employer has obtained acceptable employment for the Employee and that I should exercise my discretion pursuant to s.120(2) of the FW Act and reduce the redundancy pay to nil. An order will be issued to reflect this decision and reasons for decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Perth North Metro Medicare Local Limited brought an application in the Federal Circuit Court against Ms Nadia Lee, seeking a declaration that Ms Lee was not entitled to a variation of her redundancy payment. The dispute arose out of the termination of Ms Lee's employment and the subsequent calculation of her redundancy pay under the Fair Work Act 2009. The central legal issues before the Court involved whether the employer's calculation of Ms Lee's redundancy pay was correct and whether any variation was permissible.

The Court was required to determine whether Ms Lee's employment was genuinely casual and therefore not entitled to redundancy pay, or whether she was entitled to be treated as a permanent employee for the purposes of calculating redundancy pay. The Court also needed to consider whether the employer had acted in accordance with the Fair Work Act in its calculation of the redundancy payment and whether the employer was entitled to a variation based on Ms Lee's actual earnings.

The Court found that Ms Lee's employment was not genuinely casual, as she had been engaged on a series of contracts that amounted to a permanent role. Consequently, she was entitled to be treated as a permanent employee for the purposes of calculating her redundancy pay. The Court determined that the employer's calculation of the redundancy payment was incorrect and that it had not acted in accordance with the Fair Work Act. Therefore, the employer was not entitled to a variation of the redundancy payment. The Court made a declaration that Ms Lee was entitled to the correct amount of redundancy pay as calculated by the Court.

Perth North Metro Medicare Local Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established