Tech2tv Pty Ltd T/A Aegis Co v Scott Mcrae

[2021] FWC 3205

[2021] FWC 3205

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.120—Redundancy pay

Tech2tv Pty Ltd T/A Aegis Co
v
Scott Mcrae
(C2021/1828)

COMMISSIONER SIMPSON BRISBANE, 3 JUNE 2021

Variation of redundancy pay.

Application to vary redundancy pay for other employment and incapacity to pay.

[1] Tech2tv Pty Ltd T/A Aegis Co (the Applicant) has made an application pursuant to s.120 of the Fair Work Act 2009 (the Act) to have the Fair Work Commission (the Commission) vary the redundancy entitlement of Mr Scott Mcrae on the basis of an incapacity to pay and that suitable employment was found.

BACKGROUND

[2] The Applicant submitted in its Form F45A – Application to vary redundancy pay, that Mr Mcrae declined alternative positions offered, being:

“Civils Labourer with Arnies Engineering - Similar rates and job description Civils Labourer with Bellas Engineering - Similar rates and job description”

[3] The Applicant submitted that Mr Mcrae declined both offered positions because he was of the view that the roles are not similar. The Applicant submitted the roles were similar as it was the same work and was for the same client (Visionstream nbn).

[4] The Applicant also submitted in its Form F45A that the application was being made due to an incapacity to pay, providing that:

“As a Job Keeper eligible business and with Job Keeper ending as of March 2021, our business has taken a significant hit in revenue with impacts attributed to Corona Virus (sic) Pandemic. We are closing Scott's division (Civils) as a result of Jobkeeper ending, among various other reasons.”

[5] On 28 April 2021 the matter was listed for a Conference. During the course of the Conference the Applicant agreed to amend his position to claim a reduction of 50%. It was agreed that the redundancy entitlement was four weeks pay. On that basis the Applicant sought a reduction of the redundancy entitlement to 2 weeks pay.

[6] Following the Conference directions were issued requiring the Applicant to file and serve on the Commission and the Respondent a signed Witness Statement and Submissions setting out the reasons why there will be a 50% reduction in the Respondent’s Redundancy Pay.

[7] I initially advised I would determine the matter on the papers upon receiving the required material.

[8] On 6 May 2021, the Applicant sent an email to my chambers that read as follows:

“…Attached are the statements from the first 2 jobs we had organised with Scott. We are still waiting on the 3rd as that director is busy with works. We note that Geoff Smith, can give statement that the jobs were handed to him, confirmed by the fact that Scott did call these people…”

[9] The email contained two attached documents. The first document titled “John Bellas Statement” provided as follows:

“Scott Called John from JB Communications Pty Ltd and John missed the call. When John rang back it did not answer and John never got a call back, john claims he also sent him a message. John Bellas can Attest to this…”

[10] During the course of the Hearing Mr Smith acknowledged that Mr Bellas did not provide this statement himself but rather it was written by his assistant.

[11] The second document was in the form of an email that appeared to have been sent by “Arnie P” to “Geoffrey J. Smith” dated 29 April 2021 and read as follows:

“Scott your previous employee rang me for a pit fitters job I offered him a job I suppose he didn’t want the job and hung up on me cheers arnie prasad director of Arnies eng pty ltd…”

[12] On the basis of the material received I decided to list the matter for a further hearing on 3 June 2021.

[13] The Applicant was represented by Mr Toby Smith. My Associate contacted Mr Mcrae the morning of the Hearing and Mr Mcrae advised he did not wish to participate in the proceedings.

EVIDENCE

[14] During the Hearing, Mr Smith confirmed that he and Mr Mcrae came to an agreement to reduce to redundancy to 50%, and that the money, being two weeks’ pay, had already been paid to Mr Mcrae. It was submitted that this agreement reflected some cost incurred by the Applicant caused by loss of equipment.

[15] Mr Smith confirmed that on the basis of his approaches to Mr Bellas and Mr Prasad, they attempted to offer employment to Mr Mcrae and Mr Mcrae did not take up those offers. He said that the rates of pay for these positions would have been either the same or more.

[16] Mr Smith advised that the job offered by Mr Bellas was full time, however that the role offered by Mr Prasad was a casual position to start with.

[17] Mr Smith said there was a third job offered, that was full time and paid more money by David Sharp at Elexecom, however that Mr Mcrae never contacted Mr Sharp. Mr Smith said that he had another employee who contacted Mr Sharp and that employee now works at Elexecom.

CONCLUSION

[18] On the basis of the uncontested material concerning the nature of the work, the payrates, working hours, skills, duties, seniority and location of the work both the full time positions offered by Mr Sharp and Mr Bellas to Mr Mcrae appear to meet the requirement of constituting acceptable employment.

[19] It is also necessary to determine whether the offers were “obtained” by the Applicant. In accordance with the decision of the Full Court of the Federal Court in FBIS International Protective Services (Aust) Pty Ltd v MUA (2015) FCAFC 90, on the basis of what Mr Smith has told the Commission the offers of employment by Mr John Bellas of JB Communications and Mr Sharpe of Elexecom were made by them in respect of the conscious, intended acts of the Applicant and were offers that Mr Mcrae may or may not have accepted as a matter of his choice.

[20] On that basis I am satisfied that discharged the onus on it to establish that the offers were acceptable employment, and that the offers were obtained by the Applicant. I therefore grant the application to reduce the redundancy payable to Mr Mcrae to 50% of the amount specified equating to two weeks pay. The Applicant has advised the Commission this amount has already been paid. The effect of this decision is that the Applicant is not required to pay the other two weeks.

[21] As the Applicant has discharged the onus on it to establish that it has obtained other acceptable employment it is unnecessary to determine its argument in the alternative that it cannot pay 50% of the redundancy.

COMMISSIONER

Appearances:

Mr T. Smith appearing for the Applicant.

Hearing details:

2021,
Brisbane:
June 3

Printed by authority of the Commonwealth Government Printer

<PR730435>