Szanto v ISS Facility Services Pty Ltd - [2013] FWC 3270

[2013] FWC 3270

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Mr Geza Szanto
v
ISS Facility Services Pty Ltd
(C2013/2814)

COMMISSIONER CAMBRIDGE

SYDNEY, 24 MAY 2013

Dispute settlement procedure - dispute as to entitlement to redundancy pay arising under the National Employment Standards - s.119 dispute as to redundancy circumstance - s.120 dispute as to whether employer obtained other acceptable employment - no obligation for employer to pay redundancy pay.

[1] This matter involves an application made pursuant to section 739 of the Fair Work Act 2009 (the Act), for the Fair Work Commission (the Commission), to deal with a dispute in accordance with a Dispute Settlement Procedure (DSP). The application was lodged at Canberra on 23 January 2013. The application was made by Geza Szantos (the applicant) and taken against ISS Facilities Services Australia Ltd (the employer).

[2] The Commission is empowered to deal with the matter by virtue of a DSP found at Clause 9 of the Security Services Industry Award 2010 (the Award). The question in dispute is a claim for an entitlement under the National Employment Standards (NES) which has primarily involved the interpretation and application of ss.119 and 120 of the Act.

[3] The matter was the subject of unsuccessful conciliation and the arbitration of the substantive matter in dispute has involved a Hearing conducted in Canberra on 7 May 2013.

[4] At the Hearing the applicant was represented by Mr S Russell-Uren from the United Voice (UV). Mr Russell-Uren adduced evidence from the applicant and one further witness. Mr J Moore appeared for the employer and he called one witness to provide evidence on behalf of the employer.

Background

[5] The applicant is a man of some 69 years of age. The applicant had worked for the employer and predecessor entities related to the employer, for a little over eleven years. The applicant was initially engaged as a Casual Security Officer and he worked for a short time at the American Embassy.

[6] The applicant became a part-time employee in 2002 and later he worked as a full-time employee. The applicant worked at four different sites throughout his eleven years of employment. After the American Embassy, the applicant was moved to the Treasures Exhibition site, then he worked at Telstra Tower and finally in 2010, the applicant was transferred to the Telstra House site.

[7] Up until about eight months prior to December 2012, the applicant performed a broad range of tasks associated with the work of a Security Guard. This work included a mix of patrol work and reception/concierge type work which from time to time involved engagement by way of rotating rosters including night shifts.

[8] In the period of at least six to eight months before December 2012, the applicant was engaged on a part time basis working in a reception/concierge role at the Telstra House site and working fixed afternoon engagements from 1pm to 7pm.

[9] In November 2012, the employer…

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.

Continue reading Szanto v ISS Facility Services Pty Ltd

Details

AGLC: Szanto v ISS Facility Services Pty Ltd [2013] FWC 3270
Case: [2013] FWC 3270
Decision Date: 24 MAY 2013

CaseChat Overview and Summary

In the matter of Szanto v ISS Facility Services Pty Ltd, the applicant brought proceedings in the Fair Work Commission against their employer, ISS Facility Services Pty Ltd, claiming entitlement to redundancy pay. The dispute arose under the National Employment Standards and involved a section 119 dispute regarding the applicant's entitlement to redundancy pay and a section 120 dispute concerning whether the employer had obtained other acceptable employment for the applicant. The Fair Work Commission was tasked with determining the validity of these claims.

The primary legal issues the Fair Work Commission had to address were whether the applicant was entitled to redundancy pay and whether the employer had obtained other acceptable employment for the applicant. The Commission examined the evidence provided by both parties, including the employer's efforts to find alternative employment for the applicant and the applicant's willingness to accept such employment. The Commission also considered the statutory provisions and relevant case law to guide its decision.

The Fair Work Commission found that the employer had made reasonable efforts to find other acceptable employment for the applicant, and the applicant had not demonstrated a willingness to accept such employment. The Commission held that the employer was not obligated to pay redundancy pay to the applicant under the circumstances. The Commission's decision was based on the evidence presented and the application of relevant legal principles.

As a result of the Commission's decision, the applicant's claims for redundancy pay were dismissed, and no orders were made in favour of the applicant. The employer was not required to pay redundancy to the applicant, and the Commission's determination was final and binding.

Orders