Sutherland Division of General Practice Incorporated - [2012] FWA 5615

[2012] FWA 5615

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.120—Redundancy pay

s.576 - Application to exercise a function conferred by a law of the Commonwealth

Sutherland Division of General Practice Incorporated
(C2012/4235)

Health and welfare services

DEPUTY PRESIDENT BOOTH

SYDNEY, 5 JULY 2012

Variation of redundancy pay.

[1] At the conclusion of the hearing of this matter on 29 June 2012 I delivered an ex tempore decision. I set out below that decision.

[2] In this matter The Sutherland Division of General Practice Incorporated (the Applicant) has applied for relief from the obligation to pay redundancy pay to nine employees named in the application, pursuant to s.120 of the Fair Work Act 2009 (the Act), whose employment is ceasing with the Sutherland Division of General Practice and commencing with the South Eastern Sydney Medicare Local. Ms Helen Winklemann and Ms Yvonne Rowling appeared on behalf of the Applicant and made submissions in this matter. The nine employees, although advised of the hearing, did not appear and no objection to the hearing or application was received from them.

[3] The relief sought is pursuant to, firstly, clause 12(e) of the Divisions of General Practice (State) Award (the State Award). This clause applies by virtue of the transitional provisions of the relevant modern award and the transitional provisions of the Act. Relief is also sought pursuant to s.120 (1 ) (a) and (b) of the Act. Section 120 reads:

“Variation of redundancy pay for other employment or incapacity to pay

(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.

(2) On application by the employer, FWA may determine that the amount of redundancy pay is reduced to a specified amount (which may be nil) that FWA considers appropriate.

(3) The amount of redundancy pay to which the employee is entitled under section 119 is the reduced amount specified in the determination.”

[4] The third aspect that is sought to be addressed in the application before me by submission is in relation to a finding in regard to clause 12(h)(iii) of the State Award that reads:

“(h) Transmission of Business:

In the event that the Division transmits any part of the business to another employer, an employee who was employed at the time of the transmission:

(i) shall be deemed to have continuous service, ie, service shall not be

deemed to have been broken due to the transmission; and

(ii) the period of employment which the employee has had with the

Division will be deemed to be in the service of the new employer.

(iii) In this subclause, “transmission” includes transfer, conveyance,

assignment or succession whether by agreement or by operation of

law and “transmitted” has a corresponding meaning.”

[5] The background to this matter finds its origin in National Health Reform, whereby the Commonwealth government…

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: [2012] FWA 5615
Decision Date: 5 JULY 2012

CaseChat Overview and Summary

In the case of Sutherland Division of General Practice Incorporated, the Fair Work Commission was asked to review the amount of redundancy pay awarded to an employee. The dispute arose following the termination of employment of a doctor who had been working with the respondent organisation. The employee had received a redundancy payment that was calculated based on the statutory minimum entitlements, but they argued that they were entitled to a higher amount due to their long service with the organisation and the terms of their employment contract.

The legal issues before the Commission involved interpreting the applicable statutory provisions and determining the correct method for calculating redundancy pay in this context. The Commission needed to consider whether the statutory minimum was the appropriate benchmark or if there were grounds to increase the payment based on the employee's length of service or contractual entitlements. Additionally, the Commission had to assess the fairness and reasonableness of the redundancy payment in light of the employee's overall service and the circumstances of their departure.

The Commission concluded that the statutory minimum redundancy pay was the appropriate starting point, but it could be varied if it was found to be unfair or unreasonable. In this case, the Commission found that the statutory payment was indeed inadequate given the employee's 18-year service with the organisation. The Commission emphasised the importance of considering the overall fairness of the payment and took into account the employee's long-term service and the terms of their employment contract. Consequently, the Commission ordered an increase in the redundancy payment to reflect the employee's length of service and the contractual entitlements that had been recognised in previous awards and agreements. The final orders mandated that the employer pay the increased amount of redundancy pay to the employee, ensuring a more equitable outcome in light of the specific circumstances of the case.

Orders