Fair Work Act 2009

s.120 - Application to vary redundancy pay for other employment or incapacity to pay

Application for reduction of redundancy pay - whether acceptable alternative employment obtained - alternative employment offer not objectively acceptable - application dismissed

• [1] The Support People Pty Ltd (the Support People) has made an application pursuant to s 120 of the Fair Work Act 2009 (the Act) seeking that the amount of redundancy pay due to be paid to Ms Megan Poulton be reduced from seven weeks pay to two weeks redundancy pay. Ms Poulton opposes the application.
• [2] I made directions for the parties to file and serve material in relation to their respective positions. I conducted a short hearing to determine the matter, which occurred by way of determinative conference on 10 September 2025. Ms Poulton appeared for herself at the hearing, and Ms Chowdry and Ms Gatt appeared for the Support People.
• [3] Ms Poulton was employed with the Support People in a compliance and administrative role described as "Compliance and Risk Officer". The Support People is a business which provides NDIS support to people with a disability. Prior to the end of her employment Ms Poulton worked part time, four days per week. She had been authorised to work from home three days per week and was required to travel to Ballarat to work from the office on the other day. She describes her role as involving compliance oversight, risk management, monitoring, reporting, advising management and policy development.
• [4] In August 2025, the Support People advised Ms Poulton that it had decided to restructure its business, which would include outsourcing payroll and human resources functions. Ms Poulton was told her position may be redundant and this was later confirmed.
• [5] The Support People offered Ms Poulton an alternative role. The role was described as Compliance and Risk Officer working two days per week. The role would have required Ms Poulton to work both days from the office in Ballarat.
• [6] The Support People say that the alternative role offered to Ms Poulton was the same job as she had been previously doing, albeit that the administrative part of the role would be reduced to remove responsibility for things including asset register and audit responsibilities. Ms Poulton says that the offer was "vague" and that there was no position description, contract or terms and conditions provided. She said she had been led to believe the alternative role would be limited to drafting compliance policies and procedures and was thus a narrowing of duties and professional status. The Support People say the offer of the alternative role was genuine. It is referred to in a letter sent to Ms Poulter on 22 August 2025.
• [7] Ms Poulton says that in a meeting she attended she was also "offered" a HR Officer role but was also told the role had also been offered to another person. It was explained that at the time it was offered to Ms Poulton the other person had not yet accepted the role. It was said that this role would absorb her current role, but she was not provided any further information such as how many days per week, remuneration details. Ms Poulton believes the role was similar to a "HR Officer" role which had been made redundant in February 2025 but later re-advertised and was thus "unstable".
• [8] The Support People said that it confirmed with Ms Poulton that this role was available and directed her to its "employment hero" portal which it said contained all relevant details about the roles it had available, including the HR Officer role. It told Ms Poulton she could let them know if any role on the portal "stood out" to her so they could "discuss further". Ms Poulton said she could not access this portal because by that time her access to it had been withdrawn.

• [9] Ms Poulton has claimed that the manner in which her redundancy was communicated to her was procedurally unfair. There is however no dispute that her role with the Support People is redundant. There is also no dispute that in ordinary circumstances, she would be entitled to 7 weeks redundancy pay in accordance with s 119 of the Act.
• [10] Section 120(1) of the Act provides that the amount of redundancy pay an employee is entitled to can be reduced if an employer (a) obtains other acceptable employment for the employee or (b) cannot pay the amount.
• [11] The Support People do not claim they cannot pay the amount. They do claim that they obtained other acceptable employment for Ms Poulton.
• [12] In Australian Catering Pty Ltd v Powell and Togia; Powell v Australian Commercial Catering Pty Ltd[1], a Full Bench of this Commission explained that the Commission does not have the power to reduce an amount of redundancy payment unless it is first satisfied that one of the conditions in s 120(1) applies - that the employer cannot pay the amount or that it has obtained other acceptable employment for the employee.
• [13] Two things must exist in relation to acceptable employment. First, the employer must have "obtained" that employment for the employee. Second, the employment must be "acceptable".
• [14] The employer "obtains" employment for the employee when it acquires or gets employment by its conscious, intended acts[2]. The mere facilitation of employment is not sufficient to satisfy this test[3].
• [15] Whether employment is "acceptable" is to be determined objectively[4]. This means that just because an employee believes the employment is unacceptable does not make it so. The Commission will look at the employment objectively, considering things like the nature of the work, the location, the pay arrangements and other factors[5]. The employment does not necessarily have to be identical employment, but:

"...the objective test of acceptability appears to be that the alternative work bears a sufficient comparability to the original work and is not unreasonably removed from the employee's original duties, skills set, qualifications, experience and other terms and conditions of employment ..."[6]

• [16] The onus of establishing that the alternative employment in question is acceptable rests with the applicant employer[7]. It is a serious step for the Commission to make an order to limit or remove an employee's statutory entitlement to redundancy payments[8].
• [17] Ms Poulton argues that the Support People has not "obtained" an alternative job for her, because the terms of its offer of a role described as "Compliance and Risk Officer" was vague. However, on the evidence before me I consider the Support People took a sufficiently active step to provide Ms Poulton with alternative employment by confirming in writing that the role - a role similar to her existing role - was one she could take up. Some detail was provided. I accept the Support People's assertion that the role was a "real documented role with defined duties and consistent with Ms Poulton's employment history and company policy".
• [18] This contrasts with the other role or roles said to have been "offered" to Ms Poulton. I do not accept that in these respects, the Support People can be said to have "obtained" alternative employment for Ms Poulton. In the case of the Compliance and Risk Officer role, Ms Poulton was clearly offered the role. In the case of the other roles, including the HR Officer role, a reference was made to these roles without detail or commitment. At the very most, Ms Poulton might have expressed interest in these roles, albeit without knowing very much about them, and having legitimate cause, in my view, to doubt their stability.
• [19] However, while I have found the Support People "obtained" the Compliance and Risk Officer role for Ms Poulton, I do not consider that this employment was "acceptable" employment. It bore characteristics comparable to her original work, but I accept Ms Poulton's submission that it was a narrowing of her responsibility and status. It would have involved additional travel time, because it would have required an additional day working from the office. In this regard, I note the Support People's submission, that Ms Poulton's work from home arrangements were the subject of a discretionary approval it gave her, and not an "entitlement". This may be so, but her actual work arrangement was such that she was not required to travel to the office more than once per week.
• [20] Even more importantly, this alternative employment would have resulted in Ms Poulton's remuneration being halved because her hours of work would be reduced from four days per week to two days per week. Such a reduction in remuneration is significant, and in my view, not objectively acceptable[9].

• [21] The jurisdictional pre-requisite allowing the Commission to reduce the amount of redundancy pay the Support People are obliged to pay Ms Poulton is not met. There was no claim as to incapacity to pay and the alternative employment obtained for Ms Poulton by the Support People was not acceptable.
• [22] The Application is dismissed, and an Order[10] will be issued to that effect.

[1] [2016] FWCFB 5467

[2] FBIS International Protective Services (Aust) Pty Ltd v Maritime Union of Australia [2015] FCAFC 90 [20]

[3] Ready Workforce (A Division of Chandler Macleod) Pty Ltd (T/A Chandler Macleaod) v Lowe [2022] FWCFB 173 [65]

[4] Australian Chamber of Manufacturers and Derole Nominees Pty Ltd - Clothing Trades Award 1982 (1) [1990] AIRC 980; (1990) 140 IR 123

[6] Von Bibra Robina Autovillage Pty Ltd [2007] AIRC 397 [26]; see also Vicstaff Pty Ltd T/A Strataco v Bradley May; Malcolm Mc Ferran [2010] FWA 3141 [27] - [28]

[7] Re Target Retail Agreement 2001 PR916204 [6]

[8] Clothing and Allied Trades Union v Hot Tuna (1988) 27 IR 226

[9] See Re Northpoint Fleurieu Pty Ltd (t/a Northpoint Fleurieu) [2020] FWC 6521 [80]

[10] PR791446

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