Scott Menzel v Madill No. 1 Pty Ltd - [2025] FWC 1305

[2025] FWC 1305

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739—Dispute resolution

Michael John Carroll; Benjamin Lettres; David William Jones; Johnnie Wayne Collis; Michael William Davidson; Scott Menzel

Madill No. 1 Pty Ltd

(C2024/8577; C2024/8634; C2024/8636; C2024/8650; C2024/8660; C2024/8828)

DEPUTY PRESIDENT LAKE

BRISBANE, 11 JUNE 2025

Alleged dispute about any matters arising under the modern award and the NES – Vehicle Repair, Services and Retail Award 2020 – whether termination or resignation – whether consultation procedure for redundancies followed – consent arbitration – determined on the papers – termination – dispute determined

In early December 2024, Mr Michael John Carroll, Mr Benjamin Lettres, Mr David William Jones, Mr Johnnie Wayne Collis and Mr Michael William Davidson and Mr Scott Menzel (together, the Applicants) made an application to the Fair Work Commission (the Commission) seeking to resolve a dispute with Madill No. 1 Pty Ltd[1] (the Respondent) under s.739 of the Fair Work Act 2009 (the Act).

The Applicants had been notified that their positions had been made redundant and they requested an urgent conference in the Commission.

The Applicants did not request interim orders. Each of the applications are similar. They allege that on 28 October 2024, the Applicants received a phone call from the Respondent advising them that the role of Roadside Technician had been made redundant.

The background is that the Respondent had previously been contracted to provide Roadside Technician services for RACQ. However, on 28 October 2024, the Respondent was advised that that contract would not be renewed. The end date for the contract was 9 December 2024, after which time RACQ would operate its Roadside Technician service through Club Assist.

The Applicants were offered various alternative positions, which they say, for different reasons, were unsuitable. This will be considered in more detail below. It appears that most of the affected employees obtained new employment with Club Assist, essentially performing the same Roadside Technician role as they did prior to the redundancy, with a new employer.

The Respondent requested that the Applicants advise whether they would be continuing their employment with the Respondent or otherwise “do them the courtesy” of informing them that they had taken a new position with Club Assist and provide a written resignation.[2]

The Applicants state variously that there was insufficient consultation, and insufficient detail about the alternative roles. The Applicants allege that the consultation requirements of the Vehicle Repair, Services and Retail Award 2020 (the Award) were not complied with.

The Applicants all state that they were not paid their statutory redundancy entitlements nor notice of termination. The Applicants lodged the dispute on the basis that the Respondent advised them that they would not receive their redundancy pay and they requested that the Commission ensure that this is paid. I have considered both the issue of whether the Applicants are entitled to redundancy pay and whether the consultation procedures were followed in this decision.

A conference was held on 6 December 2024. No resolution…

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: [2025] FWC 1305
Decision Date: 11 JUNE 2025

CaseChat Overview and Summary

In Scott Menzel v Madill No. 1 Pty Ltd, Deputy President Lake was asked to determine a dispute between the Applicants, employees of the Respondent, and the Respondent regarding the Applicants' entitlement to redundancy pay following a redundancy of their roles as Roadside Technicians. The Applicants argued that they were entitled to redundancy pay because their roles were made redundant and they were not offered redeployment to suitable alternative employment. The Respondent argued that the Applicants were not entitled to redundancy pay because they were offered redeployment to suitable alternative employment, which they refused. The Respondent also argued that the Applicants were not entitled to redundancy pay because they resigned and the Respondent did not terminate their employment.

The Deputy President found that the Applicants were terminated within the meaning of s.119 of the Fair Work Act 2009 (the Act). The Deputy President found that the Applicants' employment was terminated because the Respondent no longer needed the Roadside Technician job to be done by anyone. The Deputy President found that the Applicants' employment was terminated because the Respondent unilaterally directed the Applicants to perform new duties without consent, which amounted to a repudiation of the existing employment contract.

The Deputy President found that the Respondent met the consultation requirements of the Vehicle Repair, Services and Retail Award 2020 (the Award) in relation to the redundancies of the Applicants. The Deputy President found that the Respondent had consulted with the Applicants about the changes to their roles and the likely effects of the changes on them. The Deputy President found that the Respondent had provided the Applicants with relevant information about the changes, including the nature of the changes and their expected effect on the Applicants.

The Deputy President found that the Applicants were entitled to redundancy pay under s.119 of the Act. The Deputy President found that the Applicants were entitled to redundancy pay because their employment was terminated within the meaning of s.119(1) of the Act. The Deputy President found that the Applicants were entitled to redundancy pay because the Respondent no longer needed the Roadside Technician job to be done by anyone. The Deputy President found that the Applicants were entitled to redundancy pay because the Respondent unilaterally directed the Applicants to perform new duties without consent, which amounted to a repudiation of the existing employment contract.

The Deputy President noted that it was open to the Respondent to apply to vary the redundancy payment under s.120 of the Act, which requires consideration of whether suitable alternative employment was obtained by the employer. The Deputy President noted that if the Respondent did not either make payment of the Applicants' redundancy pay or apply for the redundancy pay to be varied under s.120 within 7 days of the date of this decision, then it would be available for the Applicants take immediate action for enforcement in a court of competent jurisdiction. The Deputy President noted that a breach of the National Employment Standards (NES) attracts civil penalties under s.44 of the Act.

Orders