s.120 - Redundancy pay

Variation of redundancy pay - application refused

[1] This decision concerns an application made by TheirCare Pty Ltd (company) under s 120(2) of the Fair Work Act 2009 (FW Act) to have the Commission reduce the redundancy entitlement of Nicole Fry, a program manager whose position was made redundant in January 2026 following the cessation of the company's service contract at Peninsula Specialist School in Dromana, Victoria. As she had more than 2 but fewer than 3 years of service, Ms Fry is entitled to 6 weeks' redundancy pay pursuant to s 119 of the FW Act. The company asks the Commission to reduce Ms Fry's redundancy entitlement to nil because it offered her an alternative role as a program coordinator at Kananook Primary School in Seaford, which she declined. The company says that the offer constituted 'other acceptable employment' for the purposes of s 120(1)(b)(i) of the FW Act.

[2] At a telephone mention on 29 January 2026, at which the parties spoke briefly to their respective positions, I made directions for the filing of submissions and advised the parties that I proposed to determine the application on the papers, to which the parties agreed.

[3] Section 120 confers on the Commission a discretion to reduce the amount of redundancy pay to which an employee would otherwise have been entitled under s 119 of the FW Act. Section 120(1) states that the section applies if an employee is entitled to be paid an amount of redundancy pay under s 119, and the employer 'obtains other acceptable employment' for the employee. These are the jurisdictional facts that must be established before the Commission may exercise its discretion. Section 120(2) then states that the Commission 'may determine that the amount of redundancy pay is reduced to a specified amount (which may be nil) that the FWC considers appropriate'. If the Commission makes an order under s 120(2), the amount of redundancy pay to which the employee is entitled is the reduced amount specified in the determination (see s 120(3)). The questions for consideration in the present matter are whether the company obtained 'other acceptable employment' for Ms Fry, and if so whether I should exercise my discretion to reduce the amount of her redundancy pay.

[4] It is clear that the company obtained other employment for Ms Fry. The question is whether the alternative employment was 'acceptable'. The fact that the employment was not in fact accepted is not determinative of whether the employment was acceptable for the purposes of s 120. 'Acceptable' in the context of s 120 is concerned with the adequacy or suitability of the alternative role. Whether other employment is acceptable is to be considered objectively, taking into account the circumstances of the parties.

[5] Ms Fry's previous role was in the 'high intensity' division of a specialist school. She earned $40.59 per hour and worked on a full-time basis between the hours of 10am and 6pm. The alternative role was at a mainstream school, on the same hourly rate of pay and on a full-time basis. However, the new role entailed working broken shifts from Monday to Friday, from 6.30am to 9am and then from 2.15pm to 6.30pm, together with 4.25 hours of administration work undertaken throughout the week. Ms Fry declined the role, telling the company that the split shifts would be prohibitive of her caring responsibilities for her disabled partner.

[6] Ms Fry submitted that the alternative employment offered to her by the company was not acceptable because working split shifts would impede her ability to care for her partner and that she had inquired whether there were positions with hours more closely aligned with her previous schedule but was told that there were no roles available with similar hours or in her preferred field of special needs education. The company did not file a written submission. Its application stated that the alternative role was acceptable because it was equivalent to Ms Fry's previous position in seniority, tasks and responsibility and pay, and that in addition the new role paid a split shift allowance.

[7] In my opinion the alternative employment which the company obtained for Ms Fry was not objectively acceptable. First, the proposed working arrangements would affect Ms Fry's ability to care for her disabled partner. Secondly, although the split shifts would attract an allowance, they involved an earlier start time and later finishing time, with an associated encroachment into Ms Fry's personal time. Thirdly, Ms Fry's preferred field of work was special needs education, rather than mainstream work. In my assessment, the alternative employment was not 'other acceptable employment' for the purposes of s 120(1)(b)(i) of the FW Act. Even if the discretion under s 120 were enlivened, I would decline to exercise it because I do not consider that it would be fair to do so in the circumstances. It was reasonable for Ms Fry to decline the alternative role. That she did so is not a good reason to deprive her of her redundancy pay. The application is refused.

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