Claim for redundancy notice period dismissed for want of jurisdiction

The Industrial Magistrate has dismissed a claim for a redundancy notice period for want of jurisdiction.

Background

The claimant was employed as a lecturer at a University, from July 2005 to December 2019. In May 2019, the University sought expressions of interest from its employees for voluntary redundancy. The claimant made a request to be considered for voluntary redundancy, which the employer approved and provided the employee with a provisional calculation of termination payments, which included 22 weeks’ pay in lieu of the notice period, pursuant to a clause of the employer’s enterprise agreement .  The claimant was informed that the notice period would commence on 24 May 2019 and that his employment would cease on 13 December 2019.   He was not required to work out the notice period.  

The claimant was then asked by his supervisor whether he would be willing to work an additional six months to cover the absence of another staff member. The claimant was assured by his supervisor that he would not suffer any financial loss if he decided to stay on and he would receive his full redundancy entitlement, including the notice period. The claimant and his supervisor agreed that the claimant would continue to work until the end of 2019.  When his employment ended, the employer would pay him his full redundancy entitlements and his notice period would commence after his employment ceased. The claimant alleges that he relied on his supervisor’s representation and the agreement and worked until 20 December 2019. When the claimant’s employment ended, the employer failed to pay monies due to him pursuant to the agreement.  On 25 January 2021, the claimant filed an amended claim for the payment of a redundancy notice period against five respondents. The claim concerned the payments the employee received at the termination of his employment. He claimed he was not paid 22 weeks for a redundancy notice period, in the sum of $58,715.93.

The claimant alleged that in not paying him the sum of $58,715.93, his employer had:

  • breached s 345 of the Fair Work Act 2009(Cth) (FWA) by not paying him the payment in lieu in circumstances where his supervisor, on behalf of the employer, allegedly made a false or misleading representation to the claimant that he would not suffer financial loss by extending his employment and working his notice (s 345 claim);
  • breached s 50 of the FWAby contravening a term of the enterprise agreement (s 50 claim); and
  • breached s 323 of the FWA in failing to pay in full, the claimant’s redundancy entitlement from 20 December 2019 (s 323 claim).

The respondents noted that under the enterprise agreement, an employee may request to work all or part of the notice period, and the University may agree, or decline an employee’s request. Where a request is agreed the employee, upon termination, will receive payment in accordance with Clause 18.11 including any balance of the notice period not used. The respondent’s submitted that in working until 20 December 2019, the claimant served out his notice and had been paid his entitlements in full.

At the hearing, the Industrial Magistrate raised the question of whether the Industrial Magistrates Court had jurisdiction to deal with the claim pursuant to s 345 of the FWA.  

 

Parties’ submissions on jurisdiction

Both parties accepted that the Court did not have jurisdiction in respect to contraventions of s 345 of the FWA. The claimant conceded that the element that relates to the employer’s contravention of s 345 is abandoned, however maintained that the Court could still make findings of fact to the effect that the claimant’s supervisor induced him to remain in employment by offering, on the employer’s behalf, to pay the claimant at the end of his employment the amount to which he was entitled to in May 2019. As a result, the claimant says the Court had jurisdiction to deal with his s 50 claim and s 323 claim.

The respondent submitted that there could be no contravention of s 50 or s 323 of the FWA unless it was first found that the supervisor’s alleged misrepresentations occurred and that it was made on behalf of the employer and bound the employer to defer the commencement of the notice period to the claimant’s final day of employment. The respondent therefore argued that the s 50 claim and s 323 claim could only arise if the s 345 claim succeeded.

Industrial Magistrate Hawkins noted that the entire claim relied on the determination of what representations were made by the claimant’s supervisor to him and a finding that they were misrepresentations. She found that for the Court to make such findings, it would need to hold that there had been a contravention of s 345 of the FWA, which the Court was excluded from doing. The claim was dismissed for want of jurisdiction.

The decision can be read here.