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

Variation of redundancy pay - whether other acceptable employment offered - alternate role constituted other acceptable employment - redundancy payment reduced to nil.

[1] Civmec Construction And Engineering Pty Ltd has applied under s 120 of the Fair Work Act 2009 (Cth) to vary its obligation to pay redundancy pay to a former employee, Mr Syed Muhamad Hasan Raza Rizvi. Civmec seeks to reduce Mr Rizvi's entitlement to redundancy pay under s 119 of the Act from six weeks to nil on the basis it obtained other acceptable employment for Mr Rizvi. Mr Rizvi does not agree.

[2] Civmec relies on the filed evidence of Ms Stephanie Baptist, Group Manager HR and IR for Civmec. Mr Rizvi filed evidence in support of his case. The parties contended that the matter could be determined on the papers. I agree and have determined this matter based on the filed materials.

[3] Having considered the evidence and materials in this matter, I am satisfied pursuant to s 120 that Civmec obtained other acceptable employment for Mr Rizvi. I have decided to exercise my discretion to reduce Mr Rizvi's redundancy entitlement from six weeks to nil in the circumstances.

[5] The following events are not contested between the parties.

[6] Civmec employed Mr Rizvi from July 2023 to July 2025. Between July 2023 and November 2025, Mr Rizvi was located at Civmec's site located on Nautical Drive, Henderson Western Australia. At the time he was made redundant, Mr Rizvi was an Electrical Projects Engineer and was working on two manufacturing-based projects.

[7] In early November 2025, Mr Rizvi was told that the two projects he was working on would be ending. This meant that his role was no longer needed at Henderson. Mr Rizvi was also informed that that there was an Electrical Projects Engineer role available at Civmec's operations at CSBP, located on Kwinana Beach Road (CSBP Role).

[8] Ms Baptist's evidence is that the CSBP Role would involve work on CSBP's 'sodium cyanide' project, which is a brownfield development aimed at increasing the existing plant's production capacity. This scope of work includes structural, mechanical, piping, electrical, instrumentation, painting and insulation services.

[9] The CSBP Project Manager reached out to Mr Rizvi to discuss the CSBP Role. Mr Rizvi told the CSBP Project Manager that he did not want to work at CSBP as he was comfortable where he was, and that he would only accept the position at CSBP if he was offered an additional $50,000.

[10] On 18 November 2025, Mr Rizvi met with a Civmec HR and IR Advisor, who I will refer to in this Decision as Ms Doe as she was not called to give evidence. Mr Rizvi and Ms Doe discussed the potential CSBP Role. On 19 November 2025, Mr Rizvi emailed Ms Doe seeking written confirmation of what was discussed during the meeting. Mr Rizvi's email also stated his understanding that if he did not accept the CSBP Role, he would need to resign as there were no other positions available.

[11] On 19 November 2025, Ms Doe replied to Mr Rizvi's email, advising that:

Due to the completion of the scope of works assigned your role and current allocated project, we are required to redeploy you. The next project identified for you is the CSBP Sodium Cyanide Project, performing the same role. The position involves the same responsibilities, remuneration and is located approximately 15 minutes from the Henderson Head Office within the same suburb where you were previously based during the Covalent project. For this project you would be eligible for an additional project completion bonus of 10% of your base salary. (emphasis added)

To clarify, the reference to resignation was based on your initial communications where you declined to accept the role as communicated by the Project Manager Donal McGinnity. Furthermore, in yesterday's meeting you expressed that a change in location / project would impact your motivation in performance. I am trying to establish whether you intend to resign as the purpose of our communications, from everyone including Donal, Simon and myself, is to confirm the completion of the current scope of works and reallocation to another project.

The enquiring in relation to redundancy is not available, there is an alternate role available.

Please communicate your intentions by close of business today, we need to organise your transfer as the engineering work you are assigned is nearing completion."[1]

[12] On 19 November 2025, Mr Rizvi replied via email, stating that when "this position" had been previously offered to another engineer and he chose not to accept the redevelopment, the decision was respected. Mr Rizvi also stated that he was not willing to resign.

[13] That same day, Ms Doe replied via email stating that:

• Civmec wanted to transfer Mr Rizvi to an equivalent position on a new project and that there were no other engineering requirements available at Henderson;
• There might be FIFO roles available, but that Civmec understood Mr Rizvi only wanted locally-based roles;
• They were not familiar with the situation involving another engineer; and
• Civmec understood that Mr Rizvi was not resigning, that Civmec would proceed with his transfer and there was no redundancy option.

• [14] On 21 November 2025, Mr Rizvi sent the following email:[2]

My current engineering role has been made redundant, as you have stated that it is

I do not accept transfer to the new project or any FIFO role, as these positions are unsuitable. I remain available to work until the end of my current role on 21 November 2025, but I am not resigning.

My company laptop and charger have been placed in Simon's office.

For any further communication, please contact me via email only at [redacted].

I request that the company provide written confirmation of the redundancy process in accordance with the Fair Work Act."

[15] Ms Doe replied the same day to Mr Rizvi stating that redundancy was not applicable as there is a suitable redeployment option that Mr Rizvi has the qualifications, experience and skills to perform; the redeployment option was the same role as Mr Rizvi's current role with the same compensation, with an additional 10% project completion bonus; and Mr Rizvi had previously worked at CSBP, which is located approximately 12km away from Henderson. The email also stated, "As you have indicated that you are not taking the role, and are not accepting the redeployment, if you do not present to work on Monday we will take your communications and your actions as confirmation of your resignation from role and process accordingly."

[16] Mr Rizvi did not attend the workplace on Monday, 24 November 2025. Ms Doe sent an email to Mr Rizvi reiterating Civmec's view as to why the redundancy process is not applicable. The email also stated:

"For the avoidance of doubt, as we have clarified, this is not a redundancy. Your request to make this position redundant will not be accepted. You need to clarify your intention regarding your employment.

This approach is consistent with the Fair Work Act 2009. For more details, please refer to [link].

You previously indicated that you would not accept the redeployment. However, before any decision is made regarding your employment status, we want to provide you with an opportunity to explain your absence today and confirm your intentions.

Please contact us by close of business 25 November 2025 to clarify your position.

Please note today and any future days of non-attendance will be recorded as unapproved leave without pay.

If you do not respond or return to work, we may consider this as confirmation of your decision to resign. However, we would prefer to resolve this matter through discussion and avoid any misunderstanding."

• [17] On 27 November 2025, Ms Doe sent the following email to Mr Rizvi:[3]

We understand and accept your position that you have not resigned from your employment.

The role of Electrical Project Engineer currently filled by you is no longer required to be done by anyone at the Henderson workshop.

Your role has been made redundant effective today, 27 November 2025.

As you are aware, Civmec has obtained other acceptable employment for you, being a role in the CBSP workshop (only 12km from Henderson), performing the same duties, on the same remuneration, and with an additional 10% project completion bonus now available to you.

Please let us know by 3pm Friday 28 November 2025, if you wish to accept and agree to commence work on Monday 1 December 2025.

If we do not hear from you by this time, or you choose to reject this offer, Civmec will be making an application to the Fair Work Commission to vary any redundancy pay due to nil, on the basis that you have rejected the other acceptable employment.

Lastly, despite you not being authorised to be absent from work over the past two days, all of your wages will be paid to you as though you had worked, up to and including today."

[18] On 28 November 2025, Ms Doe wrote to Mr Rizvi noting that Mr Rizvi had not replied and that his employment was terminated.

• [19] On 1 December 2025, Mr Rizvi wrote to Ms Doe. This email objected to the amount of time Mr Rizvi had been given to consider the correspondence and stated:[4]

"With respect to the proposed redeployment, I am unable to assess suitability without the following mandatory and objective information, which remains outstanding:

1. Confirmation of the correct site name (CSBP or CBSP).
2. The exact address and physical location of the workshop.
3. Clarification of whether the workshop is located within the CSBP site boundary or externally.
4. A comprehensive position description, including duties, responsibilities, reporting structure, and scope of work.
5. Clarification on whether the position is construction‑based or manufacturing‑based.
6. Details regarding site specific inductions, safety obligations, PPE requirements, chemical exposure (including sodium cyanide), and permit requirements.
7. An outline of any material differences in hazards, risks, or operational environment when compared with my current/substantive role.

1. My engineering duties in my current role are no longer required
2. There are no engineering requirements in Henderson/workshop.

On the basis of your own statements, my substantive role has ceased, which satisfies the criteria for a genuine redundancy under s.389 of the Fair Work Act.

Further, given the significant differences in operational context, risk profile, and exposure to hazardous chemicals, I am not in a position to determine that the proposed role is suitable within the meaning of the Fair Work Act until all requested information is provided. Any suggestion that I have declined a suitable role would therefore be factually incorrect.

In light of the above, I formally request that Civmec proceed to issue confirmation of my redundancy entitlements in writing, consistent with its obligations under the Fair Work Act 2009."

[20] On 5 December 2025, Ms Doe replied to Mr Rizvi with the following:

We continue to accept your position that you have not resigned and confirm that your employment was terminated by way of redundancy, effective 28 November 2025.

Your employment ended by way of redundancy because you did not accept the suitable alternative role that was obtained for you. We are now taking steps to look to fill this role.

1. The correct site name is CSBP. The reference to CBSP was a typographical error.
2. CSBP Kwinana is located at on Kwinana Beach Road, Kwinana WA 6167, please see map below
3. The office is located on the CSBP site
4. Please see attached position description. As discussed with Donal, the duties and responsibilities would be remaining the same.
5. This position is construction based.
6. You would be required to complete the following inductions before mobilising to site:
   1. CSBP - General Site induction
   2. AMM/ AAN induction
   3. Ammonia Loading Facility
   4. Fertiliser Operations Induction
   5. Sodium Cyanide Induction
   6. CSBP Permit to work
   7. Restricted Light Vehicle Access
7. When working from CSBP you will be working in an office, not inside a workshop. There are offices placed around the CSBP site. Your office is located in an area deemed outside the designated exposure zone, therefore there is no cyanide risk to office staff and work can continue safely. Before commencing work at CSBP a comprehensive HSE Management Plan was developed to thoroughly assess potential site risks and outline appropriate mitigation strategies. For office staff, the primary risks involve hazardous manual tasks and ergonomic injuries such as heavy lifting and materials handling. These are the same risks present at the Henderson location. To mitigate these risks, Civmec has implemented an online Manual Handling Awareness Training as the primary control measure. Employees will also be required to wear PPE when working on CSBP.

We consider that in your discussion with the CSBP Project Manager outlined above and in our meeting of 18 November 2025, that the similarities between the roles were explained to you.

As we alluded to in our previous email, given that Civmec obtained a suitable alternative role which you did not wish to accept, we are now in the process of applying to the Fair Work Commission to reduce your redundancy payment to nil."

[21] On 8 December 2025, Mr Rizvi replied stating that he had not refused a suitable alternative role and that he had requested further information in "good faith in order to properly and safely assess the proposed redeployment." Mr Rizvi's email also stated that the CSBP Project Manager had not fully explained the duties, risks or working conditions, and that, "at all times, [he] was awaiting written clarification to properly determine whether the role was genuinely suitable."

[22] Section 119 of the Act provides for the following redundancy pay entitlements:

(1) An employee is entitled to be paid redundancy pay by the employer if the employee's employment is terminated:

(a) at the employer's initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or

(b) because of the insolvency or bankruptcy of the employer.

Note: Sections 121, 122 and 123 describe situations in which the employee does

(2) The amount of the redundancy pay equals the total amount payable to the employee for the redundancy pay period worked out using the following table at the employee's base rate of pay for his or her ordinary hours of work:

Employee's period of continuous service with the employer on termination

[23] Section 120 of the Act provides:

"120 Variation of redundancy pay for other employment or incapacity to pay

(a) an employee is entitled to be paid an amount of redundancy pay by the employer because of section 119; and

(i) obtains other acceptable employment for the employee; or

(2) On application by the employer, the FWC may determine that the amount of redundancy pay is reduced to a specific amount (which may be nil) that the FWC considers appropriate.

(3) The amount of redundancy pay to which the employee is entitled under section 119 is the reduced amount specified in the determination."

[24] In this matter, I am satisfied on the evidence that Mr Rizvi was entitled to be paid six weeks redundancy pay in accordance with s 119 of the Act. Civmec does not contend that it cannot pay the amount.

• [25] In relation to s 120(1)(b)(i) of the Act, the Full Bench in Australian Commercial Catering Pty Ltd Powell and Togia; Powell v Australian Commercial Catering Pty Ltd[5] set out that the test in relation to s 120(1)(b)(i) of the Act is an objective one and is not determined by reference to whether the employment is subjectively acceptable to the employee.[6] Further, that once the preconditions in s 120(1) are satisfied, the determination of whether to reduce an employee's entitlement to redundancy pay requires the exercise of a broad discretionary power.[7]

• [26] In Spotless Services Australia Limited t/as Alliance Catering,[8] Deputy President Sams helpfully summarised the authorities on what "other acceptable employment" means and relevantly stated:

"[65] The above decisions have some common features, including:

• The test of what constitutes 'acceptable employment' is an objective one It does not mean it must be acceptable to the employee.

• Acceptable employment is not identical employment, as no two jobs could be exactly the same.

• An employee must meaningfully cooperate with the employer in exploring or considering options for alternative positions.

• An employee's prima facie entitlement to redundancy pay may be at risk if the employee refuses a role or position, which is found to be objectively 'acceptable'.

• The acceptance of alternative employment by one or more persons in a group of redundant employees, does not necessarily make the alternative employment 'acceptable' for all of them. Each employee's individual circumstances must be taken into account.

• There are a range of factors of varying weight, according to an employee's particular circumstances, which may be taken into account to assess the acceptability of alternative employment."

4.1 Did Civmec obtain other acceptable employment?

[27] Civmec offered Mr Rizvi the CSBP Role. I am satisfied that Civmec obtained this role. The question is whether the CSBP Role was other acceptable employment.

[28] Civmec submits that the CSBP Role was acceptable other employment as Mr Rizvi would have:

(a) been performing the same role as an Electrical Projects Engineer;

(b) remained employed by Civmec, preserving his service-related entitlements;

(c) performed similar duties to his role at Henderson;

(d) had the same hours of work;

(e) had the same salary, plus an opportunity to be eligible for a project completion bonus of 10% of his salary, which was not available in Mr Rizvi's Henderson role;

(f) been working inside an office on site at CSBP, and therefore would not have been exposed to onsite risks; and

(g) only been required to travel an additional short distance, being approximately four extra minutes on his journey from home to work.

[29] From Ms Baptist's evidence, the only differences between Mr Rizvi's role at Henderson and the CSBP Role is the location, and the CSBP Role would have required him to work on a construction project, as opposed to two manufacturing projects.

[30] Ms Baptist's uncontested evidence is that Mr Rizvi's home is approximately 31 minutes away from Henderson and 35 minutes away from CSBP. I have viewed the Google Maps journeys provided by Ms Baptist and accept this evidence.

• [31] Ms Baptist's further uncontested evidence is that an Electrical Projects Engineer would perform the same duties and responsibilities on a construction-based project as they would on a manufacturing-based project. Ms Baptist provided a copy of a general Electrical Projects Engineer position description. Her evidence is that the primary purpose of an Electrical Projects Engineer is to support the development and execution of electrical and instrumented systems and designs for the relevant project.[9] I accept this evidence.

[32] Mr Rizvi did not lead any evidence or submissions addressing why the CSBP Role was not suitable. At best, Mr Rizvi contends that he requested further information from Civmec on the CSBP Role regarding the change from a manufacturing-based to construction-based project; the requirement for multiple inductions; the location of the role on the site; and the differences in risk profile, safety obligations and working conditions. However, Mr Rizvi did not make any submissions on these points.

[33] Based on Ms Baptist's uncontested evidence, I find that the CSBP Role was other acceptable employment. The change in location was not substantial, and I am satisfied that the change from a manufacturing-based project to a construction-based one was not significant in terms of Mr Rizvi's duties and responsibilities as an Electrical Projects Engineer. The CSBP Role was also based in an office, and so there was no change in risk profile or exposure to hazardous substances for Mr Rizvi.

4.2 Is it appropriate to reduce Mr Rizvi's redundancy entitlement?

[34] The thrust of Mr Rizvi's grievance is that Civmec did not provide him with sufficient information about the CSBP Role in time for him to decide whether to accept the role.

[35] I do not accept this submission. Even if I accept Mr Rizvi's contention in his email of 8 December 2025, that the CSBP Project Manager did not explain the role to him, in Ms Doe's email of 19 November 2025 detailed at [11] of this Decision, Ms Doe explicitly informed Mr Rizvi that the CSBP Role involved work on the CSBP Sodium Cyanide Project performing the same role, with the same responsibilities and remuneration. Further, Ms Doe explained the location and the additional project completion bonus. Mr Rizvi's response was to explicitly reject the role in his email of 21 November 2025. He did not seek further information at this time.

[36] From the correspondence, Mr Rizvi was more concerned about whether Civmec required him to resign. Civmec's handling of this concern was clumsy and at times misguided. However, Civmec did explain what the CSBP Role was to Mr Rizvi and gave him multiple opportunities to accept it. Mr Rizvi's further questions regarding the role only came well after he had rejected it.

• [37] In the circumstances, I find it appropriate to reduce Mr Rizvi's' redundancy entitlement to nil. An Order to this effect will issue separately.[10]

[1] Witness Statement of Stephanie Baptist, SB-6.

[2] Witness Statement of Stephanie Baptist, SB-6.

[3] Witness Statement of Stephanie Baptist, SB-8.

[4] Witness Statement of Stephanie Baptist, SB-9.

[5] [2016] FWCFB 5467.

[8] [2016] FWC 4505.

[9] Witness Statement of Stephanie Baptist [9].

[10] PR797065

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