Australia: Are dismissals genuine redundancies when employees have rejected a pay cut?

Consider this situation. You run Company A. Your business involves supplying a service to Company B. You have been providing this service at a set price for a number of years and engage a team of employees to facilitate the delivery of the service. Due to reasons outside of your control Company B indicates that going forward it must reduce the amount it pays Company A for its service by, say, 10%.

This means that – as much as you would like to continue to do so – you cannot afford to keep paying your employees at 100% of their current wage. You need to reduce their wages by 10%.

You consult fully with the employees about the changes. You acknowledge that you cannot unilaterally reduce an employee's wages. Instead, you present them with the following offer: "we no longer have a job for you paying a wage at 100%, but instead we are offering you a job at 90%".

Some of the employees accept the offer and life continues much as before.

Other employees reject the new job offer. Having considered that there are no other available roles you can offer them, you regrettably consider that you have no choice but to make them redundant (their old job having ceased to exist).

You acknowledge that such an employee is entitled to redundancy pay, there being no argument that the alternative job offered to them was "acceptable alternative employment" (which otherwise might obviate the obligation to pay redundancy), as a role which pays 10% less is clearly not on equally favourable terms to their previous position.

You also consider that you are not at risk of an unfair dismissal claim from the redundant employees given that their dismissals were cases of "genuine redundancy" within the meaning of section 389 of the Fair Work Act 2009 (Cth) ie: their job was no longer required to be performed, any obligation to consult with employees in a modern award or enterprise agreement was complied with, and it was not reasonable to redeploy them elsewhere in the business.

Although what is set out above might sound like an uncontroversial interpretation of the law on redundancies, the Fair Work Commission recently dealt with a similar factual situation and found that a variation in a job's remuneration "does not equate to the employer no longer requiring 'the job' to be performed". Consequently the employees in question were held not to have been dismissed for reasons of "genuine redundancy" and it was open to them to bring a claim in unfair dismissal against the employer.

Given that the outcome of the case challenges what many thought to be fairly well-trodden legal ground, it is a case that deserves close attention. There are also a number of potential knock on effects of the case, some of which may be unexpected.

In Mr Leon Mallard and others v Parabellum International Pty Ltd T/A Parabellum International [2017] FWC 2431 the four applicants were employed as Emergency Service Officers by the employer (Parabellum).

Parabellum provided emergency response services to its major client (Chevron).

In 2016 Chevron reduced its contract prices with Parabellum.

Parabellum decided that in order to meet its financial commitments going forward, it needed to reduce the current salaries of its workforce by around 13%. All the applicants were offered variations of their positions on this basis. Having declined this offer – and there being no other alternative positions – Parabellum determined that their positions were redundant and the employees were dismissed. Where the employees were entitled to redundancy pay (because they had the requisite length of service, etc) they were paid this in full.

The employees subsequently commenced proceedings for unfair dismissal in the Fair Work Commission.

Parabellum defended the proceedings on the basis that the employees' dismissal was as result of "genuine redundancy" within the meaning of section 389 of the Fair Work Act (quoted below). By virtue of section 385 of the Act, a person will not have been unfairly dismissed if their dismissal was a case of "genuine redundancy". In other words: if there is a genuine redundancy that is the end of the matter. The Fair Work Commission does not need to proceed to consider whether the dismissal was harsh, unjust or unreasonable if it is found to be a case of "genuine redundancy".

Section 389 states as follows:

"Meaning of genuine redundancy

  1. A person's dismissal was a case of genuine redundancy if:

    1. the person's employer no longer required the person's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise; and

    2. the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

  2. A person's dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

    1. the employer's enterprise; or
    2. the enterprise of an associated entity of the employer."

In the Parabellum case Deputy President Bull rejected the employer's arguments that replacing a job at one salary level with a job at a lower salary meant that the employer "no longer required the person's job to be performed by anyone" within the meaning of section 389 of the Fair Work Act. In doing so he said this:

" [41] It is clear that the circumstances said by the respondent to equate to a redundancy, that is, that the roles are to be remunerated at a lesser rate, are not those that are provided in the Explanatory Memorandum or given as examples in any judicial consideration of the term redundancy. I note also that the Australian Taxation Office Ruling TR 2009/2 Income Tax Genuine Redundancy Payments provides numerous examples of what is considered a genuine redundancy, none of which involve an employee's dismissal due to a failure to accept a reduction in remuneration with the same work performed by a new employee at a lower rate.
[42] There has been no reduction in the responsibility or tasks allocated to the position of Emergency Services Officer, the positions have not been abolished, the functions have not been split among other staff or some of them given to other staff. The positions are not in excess of the requirements of the respondent.
[43] While the respondent submits that the term 'job' in the Act must be read to include the remuneration of the particular job, no authority has been provided to support this 'wide' view.
[....]
[45] In my view the 'person's job to be performed' as stated in the Act, are the functions, duties and responsibilities associated with the job. The remuneration is the value placed on performing the job by the employer. A significant variation of the remuneration to be paid either by way of a salary increase, which is a common variation, or decrease, does not equate to the employer no longer requiring 'the job' to be performed.
[46] A job is redundant when the functions, duties and responsibilities formally attached to the job are determined by the employer to be superfluous to the current needs and purposes of the employer.
[47] The positions of Emergency Services Officer have not been reduced in number requiring the tasks of one or more Officers to be undertaken by existing staff, nor have the roles been altered such that the functions, duties or responsibilities no longer reflect the roles occupied by the applicants. While a position may be redundant where the role is still being undertaken by others, this is not the same as advertising the positions with identical duties on a lower wage to new prospective employees.
[48] This conclusion does not address the validity or otherwise of the economic imperatives the respondent said it faced in terminating the applicants' employment and whether such action amounted to a case of unfair dismissal as per the Act in respect of each of the applicants. "
Consequently the Deputy President dismissed Parabellum's argument on genuine redundancy and ordered that the matter be listed to consider the merits of the unfair dismissal claim. In other words, to consider whether the dismissals were – not being cases of genuine redundancy – unfair dismissals within the meaning of the Fair Work Act (ie harsh, unjust or unfair).
What happens next in the case will be noted with interest. If it is the case that the Fair Work Commission deems the dismissals to have been unfair it will put employers in Parabellum's (and Company A's) position in a difficult situation: what are they to do when there is a need to cut staff costs, but still require a workforce of the same size to deliver results?
If the Fair Work Commission determines that the dismissals were not unfair (even though they were not cases of redundancy) then the wider consequences of the decision could be detrimental to employees. For if the employees' positions in the Parabellum case were not considered to have been made redundant (in the context of the unfair dismissal provisions) then it is arguable that the employees would not have been entitled to redundancy pay under section 119 of the Fair Work Act.
Although unclear at present, a perhaps unforeseen outcome of the decision might therefore be, that when an employer is faced with reducing staff wages due to economic reasons (with possible consequential staff losses), it may be able to avoid paying statutory redundancy pay, a benefit which (to date) has been regarded as something of a protection for employees in these situations. At the moment it would wise to await clarification on this question from the Commission before considering basing any decision on the Parabellum case.
Although on the face of it, the decision appears to be "pro-employee" (given that it appears to open a new door to employees to claim unfair dismissal in such a scenario), the consequences of the case for employees may be established to be far from favourable.

Employers are therefore well advised to tread carefully when dealing with such a scenario. It may be prudent to consider effecting any such dismissals using a Deed of Release.

Consider this situation. You run Company A. Your business involves supplying a service to Company B. You have been providing this service at a set price for a number of years and engage a team of employees to facilitate the delivery of the service. Due to reasons outside of your control Company B indicates that going forward it must reduce the amount it pays Company A for its service by, say, 10%.
This means that – as much as you would like to continue to do so – you cannot afford to keep paying your employees at 100% of their current wage. You need to reduce their wages by 10%.
You consult fully with the employees about the changes. You acknowledge that you cannot unilaterally reduce an employee's wages. Instead, you present them with the following offer: "we no longer have a job for you paying a wage at 100%, but instead we are offering you a job at 90%".
Some of the employees accept the offer and life continues much as before.
Other employees reject the new job offer. Having considered that there are no other available roles you can offer them, you regrettably consider that you have no choice but to make them redundant (their old job having ceased to assist).
You acknowledge that such an employee is entitled to redundancy pay, there being no argument that the alternative job offered to them was "acceptable alternative employment" (which otherwise might obviate the obligation to pay redundancy), as a role which pays 10% less is clearly not on equally favourable terms to their previous position.
You also consider that you are not at risk of an unfair dismissal claim from the redundant employees given that their dismissals were cases of "genuine redundancy" within the meaning of section 389 of the Fair Work Act 2009 (Cth) ie: their job was no longer required to be performed, any obligation to consult with employees in a modern award or enterprise agreement was complied with, and it was not reasonable to redeploy them elsewhere in the business.
Although what is set out above might sound like an uncontroversial interpretation of the law on redundancies, the Fair Work Commission recently dealt with a similar factual situation and found that a variation in a job's remuneration "does not equate to the employer no longer requiring 'the job' to be performed". Consequently the employees in question were held not to have been dismissed for reasons of "genuine redundancy" and it was open to them to bring a claim in unfair dismissal against the employer.
Given that the outcome of the case challenges what many thought to be fairly well-trodden legal ground, it is a case that deserves close attention. There are also a number of potential knock on effects of the case, some of which may be unexpected.
In Mr Leon Mallard and others v Parabellum International Pty Ltd T/A Parabellum International [2017] FWC 2431 the four applicants were employed as Emergency Service Officers by the employer (Parabellum).
Parabellum provided emergency response services to its major client (Chevron).
In 2016 Chevron reduced its contract prices with Parabellum.
Parabellum decided that in order to meet its financial commitments going forward, it needed to reduce the current salaries of its workforce by around 13%. All the applicants were offered variations of their positions on this basis. Having declined this offer – and there being no other alternative positions – Parabellum determined that their positions were redundant and the employees were dismissed. Where the employees were entitled to redundancy pay (because they had the requisite length of service, etc) they were paid this in full.
The employees subsequently commenced proceedings for unfair dismissal in the Fair Work Commission.
Parabellum defended the proceedings on the basis that the employees' dismissal was as result of "genuine redundancy" within the meaning of section 389 of the Fair Work Act (quoted below). By virtue of section 385 of the Act, a person will not have been unfairly dismissed if their dismissal was a case of "genuine redundancy". In other words: if there is a genuine redundancy that is the end of the matter. The Fair Work Commission does not need to proceed to consider whether the dismissal was harsh, unjust or unreasonable if it is found to be a case of "genuine redundancy".
Section 389 states as follows:

"Meaning of genuine redundancy

  1. A person's dismissal was a case of genuine redundancy if:
    1. the person's employer no longer required the person's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise; and
    2. the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
  2. A person's dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:
    1. the employer's enterprise; or
    2. the enterprise of an associated entity of the employer."

In the Parabellum case Deputy President Bull rejected the employer's arguments that replacing a job at one salary level with a job at a lower salary meant that the employer "no longer required the person's job to be performed by anyone" within the meaning of section 389 of the Fair Work Act. In doing so he said this:
" [41] It is clear that the circumstances said by the respondent to equate to a redundancy, that is, that the roles are to be remunerated at a lesser rate, are not those that are provided in the Explanatory Memorandum or given as examples in any judicial consideration of the term redundancy. I note also that the Australian Taxation Office Ruling TR 2009/2 Income Tax Genuine Redundancy Payments provides numerous examples of what is considered a genuine redundancy, none of which involve an employee's dismissal due to a failure to accept a reduction in remuneration with the same work performed by a new employee at a lower rate.
[42] There has been no reduction in the responsibility or tasks allocated to the position of Emergency Services Officer, the positions have not been abolished, the functions have not been split among other staff or some of them given to other staff. The positions are not in excess of the requirements of the respondent.
[43] While the respondent submits that the term 'job' in the Act must be read to include the remuneration of the particular job, no authority has been provided to support this 'wide' view.
[....]
[45] In my view the 'person's job to be performed' as stated in the Act, are the functions, duties and responsibilities associated with the job. The remuneration is the value placed on performing the job by the employer. A significant variation of the remuneration to be paid either by way of a salary increase, which is a common variation, or decrease, does not equate to the employer no longer requiring 'the job' to be performed.
[46] A job is redundant when the functions, duties and responsibilities formally attached to the job are determined by the employer to be superfluous to the current needs and purposes of the employer.
[47] The positions of Emergency Services Officer have not been reduced in number requiring the tasks of one or more Officers to be undertaken by existing staff, nor have the roles been altered such that the functions, duties or responsibilities no longer reflect the roles occupied by the applicants. While a position may be redundant where the role is still being undertaken by others, this is not the same as advertising the positions with identical duties on a lower wage to new prospective employees.
[48] This conclusion does not address the validity or otherwise of the economic imperatives the respondent said it faced in terminating the applicants' employment and whether such action amounted to a case of unfair dismissal as per the Act in respect of each of the applicants. "
Consequently the Deputy President dismissed Parabellum's argument on genuine redundancy and ordered that the matter be listed to consider the merits of the unfair dismissal claim. In other words, to consider whether the dismissals were – not being cases of genuine redundancy – unfair dismissals within the meaning of the Fair Work Act (ie harsh, unjust or unfair).
What happens next in the case will be noted with interest. If it is the case that the Fair Work Commission deems the dismissals to have been unfair it will put employers in Parabellum's (and Company A's) position in a difficult situation: what are they to do when there is a need to cut staff costs, but still require a workforce of the same size to deliver results?
If the Fair Work Commission determines that the dismissals were not unfair (even though they were not cases of redundancy) then the wider consequences of the decision could be detrimental to employees. For if the employees' positions in the Parabellum case were not considered to have been made redundant (in the context of the unfair dismissal provisions) then it is arguable that the employees would not have been entitled to redundancy pay under section 119 of the Fair Work Act.
Although unclear at present, a perhaps unforeseen outcome of the decision might therefore be, that when an employer is faced with reducing staff wages due to economic reasons (with possible consequential staff losses), it may be able to avoid paying statutory redundancy pay, a benefit which (to date) has been regarded as something of a protection for employees in these situations. At the moment it would wise to await clarification on this question from the Commission before considering basing any decision on the Parabellum case.
Although on the face of it, the decision appears to be "pro-employee" (given that it appears to open a new door to employees to claim unfair dismissal in such a scenario), the consequences of the case for employees may be established to be far from favourable.
Employers are therefore well advised to tread carefully when dealing with such a scenario. It may be prudent to consider effecting any such dismissals using a Deed of Release.

Consider this situation. You run Company A. Your business involves supplying a service to Company B. You have been providing this service at a set price for a number of years and engage a team of employees to facilitate the delivery of the service. Due to reasons outside of your control Company B indicates that going forward it must reduce the amount it pays Company A for its service by, say, 10%.
This means that – as much as you would like to continue to do so – you cannot afford to keep paying your employees at 100% of their current wage. You need to reduce their wages by 10%.
You consult fully with the employees about the changes. You acknowledge that you cannot unilaterally reduce an employee's wages. Instead, you present them with the following offer: "we no longer have a job for you paying a wage at 100%, but instead we are offering you a job at 90%".
Some of the employees accept the offer and life continues much as before.
Other employees reject the new job offer. Having considered that there are no other available roles you can offer them, you regrettably consider that you have no choice but to make them redundant (their old job having ceased to assist).
You acknowledge that such an employee is entitled to redundancy pay, there being no argument that the alternative job offered to them was "acceptable alternative employment" (which otherwise might obviate the obligation to pay redundancy), as a role which pays 10% less is clearly not on equally favourable terms to their previous position.
You also consider that you are not at risk of an unfair dismissal claim from the redundant employees given that their dismissals were cases of "genuine redundancy" within the meaning of section 389 of the Fair Work Act 2009 (Cth) ie: their job was no longer required to be performed, any obligation to consult with employees in a modern award or enterprise agreement was complied with, and it was not reasonable to redeploy them elsewhere in the business.
Although what is set out above might sound like an uncontroversial interpretation of the law on redundancies, the Fair Work Commission recently dealt with a similar factual situation and found that a variation in a job's remuneration "does not equate to the employer no longer requiring 'the job' to be performed". Consequently the employees in question were held not to have been dismissed for reasons of "genuine redundancy" and it was open to them to bring a claim in unfair dismissal against the employer.
Given that the outcome of the case challenges what many thought to be fairly well-trodden legal ground, it is a case that deserves close attention. There are also a number of potential knock on effects of the case, some of which may be unexpected.
In Mr Leon Mallard and others v Parabellum International Pty Ltd T/A Parabellum International [2017] FWC 2431 the four applicants were employed as Emergency Service Officers by the employer (Parabellum).
Parabellum provided emergency response services to its major client (Chevron).
In 2016 Chevron reduced its contract prices with Parabellum.
Parabellum decided that in order to meet its financial commitments going forward, it needed to reduce the current salaries of its workforce by around 13%. All the applicants were offered variations of their positions on this basis. Having declined this offer – and there being no other alternative positions – Parabellum determined that their positions were redundant and the employees were dismissed. Where the employees were entitled to redundancy pay (because they had the requisite length of service, etc) they were paid this in full.
The employees subsequently commenced proceedings for unfair dismissal in the Fair Work Commission.
Parabellum defended the proceedings on the basis that the employees' dismissal was as result of "genuine redundancy" within the meaning of section 389 of the Fair Work Act (quoted below). By virtue of section 385 of the Act, a person will not have been unfairly dismissed if their dismissal was a case of "genuine redundancy". In other words: if there is a genuine redundancy that is the end of the matter. The Fair Work Commission does not need to proceed to consider whether the dismissal was harsh, unjust or unreasonable if it is found to be a case of "genuine redundancy".
Section 389 states as follows:

"Meaning of genuine redundancy

  1. A person's dismissal was a case of genuine redundancy if:
    1. the person's employer no longer required the person's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise; and
    2. the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
  2. A person's dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:
  3. the employer's enterprise; or
  4. the enterprise of an associated entity of the employer."

In the Parabellum case Deputy President Bull rejected the employer's arguments that replacing a job at one salary level with a job at a lower salary meant that the employer "no longer required the person's job to be performed by anyone" within the meaning of section 389 of the Fair Work Act. In doing so he said this:
" [41] It is clear that the circumstances said by the respondent to equate to a redundancy, that is, that the roles are to be remunerated at a lesser rate, are not those that are provided in the Explanatory Memorandum or given as examples in any judicial consideration of the term redundancy. I note also that the Australian Taxation Office Ruling TR 2009/2 Income Tax Genuine Redundancy Payments provides numerous examples of what is considered a genuine redundancy, none of which involve an employee's dismissal due to a failure to accept a reduction in remuneration with the same work performed by a new employee at a lower rate.
[42] There has been no reduction in the responsibility or tasks allocated to the position of Emergency Services Officer, the positions have not been abolished, the functions have not been split among other staff or some of them given to other staff. The positions are not in excess of the requirements of the respondent.
[43] While the respondent submits that the term 'job' in the Act must be read to include the remuneration of the particular job, no authority has been provided to support this 'wide' view.
[....]
[45] In my view the 'person's job to be performed' as stated in the Act, are the functions, duties and responsibilities associated with the job. The remuneration is the value placed on performing the job by the employer. A significant variation of the remuneration to be paid either by way of a salary increase, which is a common variation, or decrease, does not equate to the employer no longer requiring 'the job' to be performed.
[46] A job is redundant when the functions, duties and responsibilities formally attached to the job are determined by the employer to be superfluous to the current needs and purposes of the employer.
[47] The positions of Emergency Services Officer have not been reduced in number requiring the tasks of one or more Officers to be undertaken by existing staff, nor have the roles been altered such that the functions, duties or responsibilities no longer reflect the roles occupied by the applicants. While a position may be redundant where the role is still being undertaken by others, this is not the same as advertising the positions with identical duties on a lower wage to new prospective employees.
[48] This conclusion does not address the validity or otherwise of the economic imperatives the respondent said it faced in terminating the applicants' employment and whether such action amounted to a case of unfair dismissal as per the Act in respect of each of the applicants. "
Consequently the Deputy President dismissed Parabellum's argument on genuine redundancy and ordered that the matter be listed to consider the merits of the unfair dismissal claim. In other words, to consider whether the dismissals were – not being cases of genuine redundancy – unfair dismissals within the meaning of the Fair Work Act (ie harsh, unjust or unfair).
What happens next in the case will be noted with interest. If it is the case that the Fair Work Commission deems the dismissals to have been unfair it will put employers in Parabellum's (and Company A's) position in a difficult situation: what are they to do when there is a need to cut staff costs, but still require a workforce of the same size to deliver results?
If the Fair Work Commission determines that the dismissals were not unfair (even though they were not cases of redundancy) then the wider consequences of the decision could be detrimental to employees. For if the employees' positions in the Parabellum case were not considered to have been made redundant (in the context of the unfair dismissal provisions) then it is arguable that the employees would not have been entitled to redundancy pay under section 119 of the Fair Work Act.
Although unclear at present, a perhaps unforeseen outcome of the decision might therefore be, that when an employer is faced with reducing staff wages due to economic reasons (with possible consequential staff losses), it may be able to avoid paying statutory redundancy pay, a benefit which (to date) has been regarded as something of a protection for employees in these situations. At the moment it would wise to await clarification on this question from the Commission before considering basing any decision on the Parabellum case.

Although on the face of it, the decision appears to be "pro-employee" (given that it appears to open a new door to employees to claim unfair dismissal in such a scenario), the consequences of the case for employees may be established to be far from favourable.

Employers are therefore well advised to tread carefully when dealing with such a scenario. It may be prudent to consider effecting any such dismissals using a Deed of Release.

For further information please contact:

Richard Ottley, Partner
Phone: + 61 2 9233 5544
Email: rbo@swaab.com.au

Simon Obee, Associate

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

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