Richards Mining Services Pty Ltd v Zoe Dunkerley - [2013] FWC 4022

[2013] FWC 4022

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.120—Redundancy pay

Richards Mining Services Pty Ltd
v
Zoe Dunkerley
(C2013/3933)

COMMISSIONER WILLIAMS

PERTH, 26 JUNE 2013

Variation of redundancy pay.

[1] This decision will determine an application made by Richards Mining Services Pty Ltd (RMS or the applicant), pursuant to section 120 of the Fair Work Act 2009 (the Act). RMS seeks to vary the redundancy payments which are otherwise payable to Ms Zoe Dunkerley (Ms Dunkerley or the respondent) following her termination of employment on 5 April 2013.

Findings

[2] From the evidence in this matter I find that Ms Dunkerley was employed by RMS from 2 September 2010 initially as a Receptionist at the Franklin Lane office in Joondalup and promoted internally in different roles to the position of Trainee Recruitment Consultant based at the Clarke Crescent, Joondalup office.

[3] At dismissal Ms Dunkerley was receiving a salary of $47 000 gross plus 9% superannuation with eligibility for participation in the RMS Recruitment Commission Structure.

[4] Since November 2012 RMS has undergone significant organisational structural changes as a result of a downturn in company revenue and demand for services, which has resulted in a number of redundancies across the business. All employees were consulted about the possibility of redundancy from November 2012 in particular; the reasons for the anticipated redundancies, alternatives to redundancies and measures to help minimise the effects of redundancies have been discussed.

[5] A meeting was held on 7 March 2013 attended by Ms Dunkerley, Richard Bayliss (HR Manager) and Tony Penna (General Manager) where it was communicated to Ms Dunkerley that her position of Trainee Recruitment Consultant based at Clarke Crescent, Joondalup was redundant due to the closure of the RMS Recruitment Division. It was made clear that this decision was not a reflection on Ms Dunkerley’s performance.

[6] RMS offered Ms Dunkerley the role of Sales Administrator based at the Franklin Lane office in Joondalup with the following details communicated to her during the meeting. The duties would as per the Job Description 1. The base salary would be $45 000 plus 9% superannuation, plus eligibility for the RMS Sale Bonus System. There would be the opportunity for paid overtime particularly on Saturdays.

[7] On the same afternoon Ms Dunkerley sent an email outlining that she wished to decline the offer of alternate employment and wanted to accept the redundancy and leave RMS.

[8] The following day Mr Bayliss discussed her email in more detail and further discussion was had on the new role that was offered to her. Ms Dunkerley stated that she wished to decline the offer of alternate employment based on it offering less money than her current role ($2 000 per annum).

[9] In reply Mr Bayliss then explained the process that RMS would pursue with the Fair Work Commission to determine the redundancy payout. Ms Dunkerley confirmed her wish to leave RMS and declined the offer of alternate employment.

[10] On 8 March 2013 RMS sent…

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 4022
Decision Date: 26 JUNE 2013

CaseChat Overview and Summary

In the Fair Work Commission, Richards Mining Services Pty Ltd, the respondent, brought a claim against Zoe Dunkerley, the applicant, regarding the variation of redundancy pay. The applicant had previously been employed by the respondent and, upon termination, was awarded a redundancy payment. The respondent now sought to vary this payment on the basis that it was calculated using incorrect information. The applicant contested this variation, arguing that the information used was accurate and that the respondent was estopped from challenging it. The Fair Work Commission was tasked with determining the validity of the respondent's claim to vary the redundancy payment.

The central legal issue before the Commission was whether the respondent was entitled to vary the redundancy payment based on alleged errors in the information used during its calculation. The applicant argued that the information was accurate and that the respondent was estopped from questioning it due to previous representations. The respondent contended that the information was incorrect and that it had the right to adjust the payment accordingly. The Commission needed to examine the evidence provided by both parties and determine the accuracy of the information used, as well as whether estoppel applied in this context.

The Commission found that the information provided by the applicant was, in fact, accurate, and the respondent could not rely on the alleged errors to vary the redundancy payment. The Commission further held that the respondent was estopped from questioning the accuracy of the information due to its previous representations and conduct. Consequently, the Commission dismissed the respondent's claim to vary the redundancy payment. The Commission emphasised the importance of employers providing accurate information when calculating redundancy payments and the potential consequences of attempting to alter such payments after the fact.

The Fair Work Commission ordered that the respondent's claim to vary the redundancy payment be dismissed and that the original payment made to the applicant remain unchanged. The Commission also noted that any future disputes regarding redundancy payments should be resolved through proper channels and not by unilateral actions by the employer. The decision underscores the importance of accurate record-keeping and the legal consequences of attempting to alter agreed payments without proper justification.

Orders