Kalapakdee v B.I.C. Services Pty Ltd [2026] NSWIC 11

1. Pursuant to s 545(3) of the Fair Work Act, an "eligible State or Territory court" may order an employer to pay an amount to an employee where satisfied that the amount was payable under the Act and that the employer contravened a civil remedy provision by failing to make that payment. The Industrial Court of NSW is such an eligible State or Territory court.[1]
2. As a national system employee, the applicant's entitlement to redundancy pay is derived from s 119 of the Fair Work Act:

119 Redundancy pay

Entitlement to redundancy pay

(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

...

1. The entitlement to redundancy pay is relevantly qualified by s 120 of the Act, which provides a discretion for the Fair Work Commission to reduce the amount of redundancy pay to which an employee would otherwise have been entitled under s 119:

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

(1) This section applies if:

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

(b) the employer:

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

(ii) cannot pay the amount.

(2) On application by the employer, the FWC may determine that the amount of redundancy pay is reduced to a specified 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.

Respondent's alternative contention: pursuant to s120 the entitlement is nil

1. I deal first with the respondent's alternative pleading that even if I find that the applicant's employment was in fact terminated on 15 December 2024, no amount is payable because s 120(1)(b)(i) operates to reduce any redundancy entitlement to nil in circumstances where the respondent made offers of "other acceptable employment" which the applicant did not accept.
2. The respondent's pleading proceeds on a misunderstanding of the effect of s 120. Consideration under s 120 is enlivened upon an application being made by the employer to the Fair Work Commission for a reduction in the amount of redundancy pay otherwise payable under s 119.[2] No such application has been made by the respondent. Even if the respondent had made such an application, it is not one that this Court has authority to determine, as the power under this section is conferred specifically on the Fair Work Commission.
3. At the hearing the solicitor for the respondent put the case differently to that pleaded, relying on written submissions filed yesterday, 7 April 2026. The respondent in those submissions accepts that this Court has no jurisdiction to determine an application under s 120 of the Fair Work Act. The respondent in those submissions says, however, that it "intends to seek an order pursuant to s 120" from the Fair Work Commission. The respondent submits that the preconditions for a successful application under s 120 are satisfied. The respondent asks that this Court adjourn these proceedings or alternatively reserve judgment, pending determination by the Fair Work Commission of the application that the respondent intends to make. In oral submissions today, it says slightly differently that the respondent intends to make such an application if the Court finds that there was in fact a termination on 15 December 2024.
4. It is not for this Court to say whether the Fair Work Commission would have made a discretionary decision to reduce the obligation to make a redundancy payment in the circumstances, had such an application been made at or shortly after 15 December 2024. Nor is it for this Court to say whether the Fair Work Commission would make such a decision now, so long after the event, if an application were made. It is sufficient to say that no such application has been made.
5. The respondent, on the day before the hearing, requested by submission (without filing a motion or putting on any evidence) that this Court adjourn its determination of the claim to allow such an application to be made and determined. Alternatively, in oral submissions today it seeks in effect to bifurcate the proceedings by asking the Court to first determine the issue of whether there was a termination on 15 December 2024, and then adjourn to allow a s120 application to be made to the Fair Work Commission. I do not intend to do either.
6. The overriding purpose of case management in civil proceedings is to facilitate the just, quick and cheap resolution of the real issues in dispute.[3]
7. The respondent has had 17 months to make an application to the Fair Work Commission under s 120 to reduce the obligation to pay redundancy payments. That is in circumstances where it has, since this claim has been filed on 1 October 2025, been on notice of the relief sought, and has since then filed its Response on 1 December 2025 identifying its intention to rely on s 120 to avoid liability. Further, this Court identified the issue concerning this Court's capacity to apply s 120 when the matter came on for directions on 11 February 2026, and some two months later no application to the Fair Work Commission has yet been filed.
8. The respondent provides no reason why it has not made the application to the Fair Work Commission before now.
9. Contrary to the submission of the respondent, the applicant will suffer prejudice from a further delay. She is entitled to have her claim heard and determined on the date it was set down.
10. This is a small claim. Consistent with the overriding purpose of case management, I refuse the submission that I ought to adjourn these proceedings.
11. The respondent having identified no other basis upon which the applicant's entitlement to redundancy pay may be displaced or reduced, the only question that remains is whether the applicant's employment was terminated in a manner that enlivens the entitlement under s 119 of the Fair Work Act.

1. Each party filed a short affidavit in respect of the application.
2. In her affidavit affirmed on 17 February 2026, the applicant outlines the circumstances surrounding the cessation of her employment and the subsequent offer of further employment by the respondent.
3. The affidavit annexes a letter to the applicant from Mr Hernando Cabrera, People & Culture Manager at the respondent, dated 12 November 2024 which said:

"Dear Employee

We would like to advise that cleaning services at you work site 1 Farrer Place, Sydney will cease.

As such, your last day of work at this site will be 15 December 2024 as relevant unless otherwise advised in writing.

We will attempt to relocate your services where possible, if you have expressed an interest in remaining with BIC Consolidated, you will be notified individually should we be successful in finding you suitable alternate employment.

Should we fail to relocate your services, please consider this letter as your formal notification that your position will no longer be available with BIC Consolidated as at the date outlined above."

1. The effect of the final paragraph was to give the applicant formal notice of the termination of her employment more than 1 month before the termination date, subject to a proviso, namely that the respondent would before that date "relocate your services".
2. The applicant deposed that she was not approached by the respondent or otherwise contacted in relation to the relocation of her services prior to or on 15 December 2024. That was not put in issue.
3. On 13 December 2024, she worked her last shift for the respondent.
4. At 3.27pm on 16 December 2024, the applicant received an email from the respondent attaching an 'Employment Letter of Offer & Relocation for Loss Contract' (First Offer). It provided that the applicant was to perform cleaning services at a worksite in Martin Place occupied by one of the respondent's clients, maintaining the same weekly hours and days as her original employment, albeit with her ordinary hours commencing and concluding 30 minutes earlier.
5. Later that day, the applicant advised the respondent by email that the First Offer was communicated only after the termination of her employment the previous day, and that she had already made alternative arrangements in reliance on the termination of her employment. In those circumstances, she stated that she was unable to accept the offer and requested redundancy pay.
6. There was no evidence filed concerning any other communications between the applicant and respondent relating to the applicant's termination or entitlement to redundancy pay.
7. The respondent relied on the affidavit of Mr Shaun Stone, General Manager - People & Culture, filed on 16 March 2026. Mr Stone's affidavit largely addresses the same matters as the applicant's affidavit, with two distinctions.
8. First, Mr Stone's affidavit annexes a copy of the applicant's contract of employment with the respondent dated 22 July 2022. The contract does not specify any term of expiry, nor otherwise contain any terms that bear upon the issue in contention.
9. Second, the affidavit records a further offer of employment to the applicant on 30 December 2024 (Second Offer). This offer proposed a change in worksite to a site in South Eveleigh occupied by a client of the respondent. Other than work location, the terms of the Second Offer were the same as those of the First Offer. It is not apparent from the material before the Court that the applicant responded to this offer.
10. Importantly, Mr Stone does not depose that the respondent told the applicant before 16 December 2024 that it had found her alternative employment.
11. In its response to the application, the respondent asserts that the applicant remained employed after 15 December 2024 and was rostered to work on 16 December 2024. It is not apparent on what basis that assertion is made. Perhaps internally the respondent's documents record that she was rostered to continue to work, in a manner consistent with the First Offer made to her on 16 December 2024. There is, however, no evidence before the Court that prior to the end of the day on 15 December 2024 the applicant was informed that she was rostered to work after 15 December 2024, nor that any agreement had been reached under which she continued to be employed.
12. The respondent's assertion that she remained employed is accordingly at odds with the unambiguous language of the contract termination notice issued to the applicant on 12 November 2024, which stated that unless the respondent relocated the applicant's services before the final day, her "position will no longer be available with BIC Consolidated as at [15 December 2024]".
13. A valid notice of termination will operate according to its terms and will bring the contract of employment to an end when the notice expires,[4] unless the contract is otherwise brought to an end, and is to be construed "according to how it would be understood by a reasonable person in the position of the recipient who had knowledge of the background of the dealings between the parties".[5] The notice issued to the applicant on 12 November 2024 was a "formal notification" of the imminent loss of her "position" with the respondent, subject to any offer of work at an alternative site made on or before 15 December 2024 (which did not occur). It clearly extended beyond the mere notification to the applicant of a possible redeployment to another worksite while her employment with the respondent subsisted. By issuing the notice, the respondent exercised its right to terminate the applicant's employment upon provision of adequate notice.
14. In consequence, the applicant's employment was brought to an end by the respondent on 15 December 2024. This finding is consistent with the payslip annexed to the applicant's affidavit, which identifies the applicant's date of termination as 15 December 2024 and provides for the cashing-out of entitlements as at that date.
15. That the respondent offered suitable alternative employment to the applicant after that date is immaterial in circumstances where her employment had already been terminated at the initiative of the respondent.
16. It is not in issue that the termination of employment came about at the respondent's initiative because the job that the applicant was doing, namely cleaning at 1 Farrer Place, Sydney, was not required by the respondent to be done by anyone.[6] So much is apparent on the face of the letter of 12 November 2024. It is not pleaded that the termination occurred due to the ordinary and customary turnover of labour. Nor is reliance placed on any exclusion in s 121 of the Fair Work Act.
17. I accordingly accept that the applicant was made redundant and is entitled to redundancy pay under s 119 of the Fair Work Act as at 15 December 2024, being the date on which the applicant's dismissal took effect.[7]
18. I find that the respondent contravened s 44 of the Fair Work Act by failing to pay the applicant redundancy pay in accordance with s 119.
19. The applicant claims $3,895.20 (the equivalent of 6 weeks' ordinary pay) pursuant to s 545(3) of the Fair Work Act. The quantum of the payment due, if the claim is accepted, was not put in issue.
20. The applicant also claims interest pursuant to s 547 of the Fair Work Act. No good cause has been identified as to why an order for interest should not be made.[8]
21. Interest calculated in accordance with the Commission's practice note is $409.17, in accordance with the following schedule:

1. Costs were sought in the application as filed but during the course of the hearing, in light of the absence of any evidence that was filed by the applicant to demonstrate that the only costs incurred (which were filing fees) had been incurred by an unreasonable act or omission of the respondent, the applicant did not press an order for costs and, accordingly, there is no application before me for costs.

(1) Pursuant to ss 545(3) and 547 of the Fair Work Act 2009 (Cth) the respondent is to pay the applicant the sum of $4,304.37 within 21 days of the date of this order.

[1] Fair Work Regulations 2009 (Cth) reg 1.05.

[2] Australian Commercial Catering Pty Ltd v Powell and Togia; Powell v Australian Commercial Catering Pty Ltd [2016] FWCFB 5467 at [35].

[3] Civil Procedure Act 2005 (NSW) s 56.

[4] Birrell v Australian National Airlines Commission [1984] FCA 378; (1984) 9 IR 101 at 108.

[5] Fardell v Coates Hire Operations Pty Ltd (2010) 201 IR 64; [2010] NSWSC 346 at [82].

[6] Fair Work Act 2009 (Cth) s 119(1).

[7] Jewell v Magnium Australia Pty Ltd [2025] FedCFamC2G 201 at [205].

[8] Fair Work Act 2009 (Cth) s 547(2).