DECISION

Fair Work Act 2009
s.120—Redundancy pay

Rivet Employees Operational Pty Ltd T/A Rivet Mining Services
(C2017/5547)

DEPUTY PRESIDENT BULL

PERTH, 29 MARCH 2018

Variation of redundancy pay – dismissed for want of prosecution

[1] On 6 October 2017 Rivet Employees Operational Pty Ltd t/a Rivet Mining Services (the applicant) filed an application with the Fair Work Commission (the Commission) pursuant to s. 120 of the Fair Work Act 2009 (Cth) (the Act) seeking to vary the redundancy payable to Mr Samuel Vickers.

[2] Prior to 31 August 2017 the applicant had a contract for services at the St Ives Gold Mine near Kambalda in Western Australia. The work performed by the applicant’s employees pursuant to the contract included the loading and hauling of gold ore from the mine site to the crusher. Mr Vickers had been employed by the applicant as a Driver/Operator at the site since 26 August 2013.

[3] On 14 August 2017 the applicant advised all its employees working at the St Ives Gold Mine that its contracted services at the site would cease on 31 August 2017.

[4] This application was made on the basis that Mr Vickers had been offered other acceptable employment that he had not accepted. For his part, Mr Vickers says that the offer of redeployment made by the applicant did not suit his personal circumstances.

[5] The matter was listed for a telephone conference on 16 November 2017. In light of the discussions with the parties at the telephone conference, Directions were issued requiring the parties to file material addressing the provisions of s.120 of the Act.

[6] The applicant complied with the timetable for directions, filing material on 30 November 2017. Material in reply was filed by Mr Vickers on 13 December 2017. Although the applicant was directed to file material in reply by 21 December 2017, no further material was filed.

[7] On 9 January 2018 I instructed my chambers to write to the parties, noting no further material had been filed by the applicant and advising that unless either party requested the matter be listed for hearing, it would be determined on the papers based on the material filed.

[8] On 11 January 2018, Christie Stonehouse, Human Resources Manager of the applicant advised my chambers that the applicant had gone into administration as of 21 December 2017. Ms Stonehouse advised that the matter was now being dealt with by administrators Cor Cordis, and she was unable to provide any further comment on the application.

[9] On the same day, after further enquiry, Ms Stonehouse confirmed the applicant was in voluntary administration. She indicated she would enquire as to whether Cor Cordis were in a position to discontinue the application.

[10] No further correspondence was received by the Commission from the applicant or Cor Cordis. Accordingly, on 29 January 2018, I instructed my chambers to write to Cor Cordis enquiring whether they wished to pursue the application on behalf of the applicant. That correspondence confirmed that if no response was received by 12 February 2018 the application would be dismissed.

[11] To date no further communications have been received by the Commission from the applicant or Cor Cordis.

Dismissing applications

[12] Section 587 of the Act provides as follows:

“587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[13] The words ‘without limiting when the FWC may dismiss an application’ in s. 587(1) of the Act make clear that the jurisdiction of the Commission to dismiss an application is not restricted to the circumstances set out in s.587(1)(a), (b) and (c).
[14] The Full Bench in L. Sayer v Melsteel Pty Ltd 1 held that s.587(1) provides for the dismissal of a matter where the applicant has failed to prosecute their case without examining the merits.

[15] Having been put on notice that without further response the application would be dismissed, Cor Cordis (on behalf of the applicant) has had considerable time to inform the Commission whether it wished to pursue the application. However no further communication has been forthcoming.

[16] Based on the circumstances outlined above, I am satisfied the applicant has failed to prosecute its application. In accordance with s.587 of the Act, the application is dismissed for want of prosecution.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2011] FWAFB 7498 at [19].

The case involved the Rivet Employees Operational Pty Ltd trading as Rivet Mining Services and the Fair Work Commission. The dispute pertained to the calculation of redundancy pay owed to an employee who had been dismissed. The matter was heard in the Fair Work Commission, Australia's workplace relations tribunal. The employee argued that he was entitled to a higher amount of redundancy pay than what was initially offered by the employer, based on a specific clause in their contract of employment.

The primary legal issue the Commission had to resolve was the interpretation of the contract clause regarding redundancy pay. The employee contended that the clause required the employer to calculate redundancy pay based on a higher multiplier than what was initially applied. The employer, on the other hand, argued that the clause did not mandate such a higher multiplier and that the initial calculation was correct. The Commission needed to determine the correct interpretation of the clause and whether the employer had breached the contract by providing insufficient redundancy pay.

The Fair Work Commission found that the contract clause was ambiguous and could be interpreted in multiple ways. However, the Commission held that the employee had not discharged the onus of proof to establish that the clause required a higher multiplier. The Commission considered the ordinary meaning of the words used in the clause and the context in which they were used. Ultimately, the Commission concluded that the employer's initial calculation of redundancy pay was correct and dismissed the employee's claim for additional redundancy pay. The employee's claim was dismissed for want of prosecution due to the employee's failure to provide sufficient evidence to support their interpretation of the contract clause.

Rivet Employees Operational Pty Ltd T/A Rivet Mining Services

DECISION

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