s.120 - Redundancy pay

National Optical Care Pty Ltd Trading AS Insight Optometry

• [1] National Optical Care Pty Ltd T/A Insight Optometry (the Applicant) has made an application to the Fair Work Commission (the Commission) for a variation to the redundancy pay to be paid to Ms Noreen Khan.

• [2] The application is made pursuant to s.120(1)(b)(i) of the Fair Work Act 2009 (the Act) on the basis that the Applicant asserts that it obtained other acceptable employment for Ms Khan, which was accepted by Ms Khan.

• [3] Ms Khan commenced employment with the Applicant on 7 June 2022 as an Optometrist at the Insight Optometry Indooroopilly practice. Ms Khan worked 68 hours per fortnight.

• [4] The role performed by Ms Khan was recently made redundant. Ms Khan was offered redeployment by the Applicant and was presented with three redeployment options, briefly summarised as follows:

1. 68 hours per fortnight (no change to hours), with hours split between Indooroopilly and the Applicant's Albany Creek practice.

1. 49 hours per fortnight at Indooroopilly only, with the possibility of working additional hours and travel to other practices when other staff are on leave.

1. 57 hours per fortnight at the Applicant's West End practice, with the possibility of working additional hours and travel to other practices when other staff are on leave.

• [5] As Ms Khan wished to remain working from her current location, she accepted redeployment with the Applicant in accordance with option 2.

• [6] Having completed between 3 and 4 years of service with the Applicant, Ms Khan is entitled to 7 weeks' redundancy pay at her base rate of pay for her ordinary hours of work.[1] This is an amount of $13,461.28. In its application, the Applicant has asked the Commission to reduce Ms Khan's redundancy pay to an amount of $3,761.24. This figure represents payment for 19 hours per fortnight (being the number of fortnightly hours by which Ms Khan's contracted hours have reduced on account of accepting option 2) over 7 weeks.

• [7] On 23 September 2025, I convened a telephone conference of the parties. Ms Abbie Black, Human Resources Manager was in attendance on behalf of the Applicant, along with Ms Khan. At the conference, Ms Khan confirmed that the had accepted option 2 proposed by the Applicant and that she was agreeable to the variation to redundancy pay proposed by the Applicant.

• [8] I informed the parties that while they appeared to be in agreement as to the proposed variation to redundancy pay, should the Commission determine that it is appropriate for redundancy pay to be varied, the Commission may reduce the entitlement to any amount the Commission considers appropriate, [2] which may or may not be the amount agreed by the parties. I expressed to Ms Khan that she may seek a higher amount than that proposed by the Applicant or oppose the application entirely if she wishes.

• [9] At the conclusion of the conference, Ms Khan stated that she would take some time to consider her position. The parties undertook to update my chambers as to whether any alternative agreement had been reached, and Ms Khan would advise whether her position with respect to the Applicant's proposal had changed.

• [10] On 3 October 2025, Ms Black wrote to my chambers that the parties remained agreeable to the variation to $3,761.24 as originally proposed, along with an additional contribution to Ms Khan's superannuation account by the Applicant. It was stated that this amount had already been paid to Ms Khan. Ms Khan confirms she is content with this.

• [11] Section 120 of the Act provides as follows:

"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 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."

• [12] I am satisfied that Ms Khan's former role was made redundant and her employment was terminated, and as a consequence, she is entitled to redundancy pay under s.119 of the Act.[3] The Applicant, in offering a number of options for redeployment within its enterprise, has obtained other employment for Ms Khan. Though it is not necessary that the redundant role and the role offered be identical in order for the latter role to be "acceptable", the duties to be performed and the location of work are identical, albeit on reduced hours. In all of the circumstances, I therefore consider that the role obtained for Ms Khan was other acceptable employment.[4]

Accordingly, I am satisfied that s.120 of the Act applies and that I may exercise by discretion to reduce Ms Khan's redundancy pay. I consider that the parties have reached a sensible agreement in relation to the $3,761.24 figure proposed. I consider it appropriate for the total redundancy entitlement due to Ms Khan to be reduced to $3,761.24. An Order to that effect will be issued with this decision.

[1] Fair Work Act 2009 (Cth) s.119(2).

[2] Ibid s.120(2).

[3] Ibid s.120(1)(a).

[4] Ibid s.120(1)(b)(i).

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