s.120 - Redundancy pay

Application to vary redundancy pay - other acceptable employment - amount reduced by consent

• [1] Selectability Ltd (the Applicant) has made an application to the Fair Work Commission (the Commission) for a variation to the redundancy pay to be paid to Mrs Isabelle Turner.

• [2] The application is made pursuant to s.120(b)(i) of the Fair Work Act 2009 (the Act) on the basis that the Applicant asserts that it obtained other acceptable employment for Mrs Turner.

• [3] Mrs Turner commenced employment with the Applicant on 29 April 2024 as an Operations Manager, Child Safety. Her annual salary in 2025 was $125,070.11. Recently, Mrs Turner has been redeployed into the role of Operations Advisor Child and Family Care with an annual salary of $105,350.03.

• [4] Mrs Turner's entitlement to redundancy pay is six weeks, an amount of $14,431.40. The annual difference in salary is $19,722.08. The Applicant proposed that Mrs Turner's redundancy be reduced to $4,016.59, an amount that is approximately 20% of the annual difference between the two salaries and represents approximately 10 weeks of salary differential.

• [5] Mrs Turner confirmed in written correspondence to my chambers on 23 December 2025 that she is agreeable to the amount of redundancy pay being reduced to $4,016.59.

• [6] Section 120 of the Act provides the following:

"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."

• [7] I have had regard to the decision of Deputy President Sams in Spotless Services Australia Limited t/as Alliance Catering[1], where he cited a number of authorities and said the following:

"[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."

• [8] In deciding the present matter, I adopt the approach set out by the Deputy President and the authorities referred to by him.

Was Mrs Turner "entitled to be paid an amount of redundancy" (s.120(1)(a))?

• [9] It is common ground between the parties that Mrs Turner's role as an Operations Manager, Child Safety has become redundant. Consequently, I am satisfied that Mrs Turner is entitled to be paid an amount of redundancy pay by the Applicant because of s.119 of the Act. Section 120(1)(a) of the Act has been established. The amount is six weeks' pay.

Did the Applicant "obtain" other employment for Mrs Turner (s.120(1)(b)(i))?

• [10] The Applicant has redeployed Mrs Turner in the role of Operations Advisor Child and Family Care. I am satisfied that in so far as s.120(b)(i) requires an employer to "obtain" other employment, the Applicant did so for Mrs Turner. Therefore, part of s.120(1)(b) of the Act has been established.

Was the employment "acceptable" (s.120(1)(b)(i))?

• [11] Mrs Turner has agreed to work in the new role and does not quibble with the employment being acceptable. I am satisfied that the employment was acceptable.

Should the amount of redundancy pay be reduced (s.120(2))?

• [12] Section 120(2) of the Act invests the Commission with discretion to reduce the amount of redundancy pay by a specified amount. It does not automatically follow that a finding that the other employment obtained by the Applicant for Mrs Turner was acceptable will result in a reduction in the redundancy pay.

• [13] I am satisfied that Mrs Turner has freely agreed to a reduction in the redundancy pay to an amount of $4,016.59. By consent of the parties, I determine that the redundancy pay to be paid by the Applicant to Mrs Turner will be reduced to $4,016.59.

• [14] An Order consistent with the foregoing will be issued at the same time as this Decision.

[1] [2016] FWC 4505.

Printed by authority of the Commonwealth Government Printer