s.120 - Redundancy pay

Upgrade Health Pty Ltd T/A Health First Group Gladstone

Variation of redundancy pay - whether other acceptable employment obtained - alternate employment not acceptable - application dismissed

[1] This decision concerns an application by Upgrade Health Pty Ltd T/A Health First Group Gladstone ('Upgrade Health') under section 120 of the Fair Work Act 2009 to vary the redundancy pay owing to an employee, Ms Tijesunimi Tolulope Agboola.

[2] Ms Agboola had been employed as a Physiotherapist by Upgrade Health for 14 months, at the Health First Group in Gladstone ('Gladstone Clinic').

[3] On 9 January 2026, Upgrade Health terminated Ms Agboola's employment by way of redundancy. Pursuant to s 119 of the Act, Ms Agboola is entitled to a redundancy payment equivalent to 4 weeks' pay, in addition to the required notice period, given or paid in lieu.

• [4] On 23 January 2026, Upgrade Health applied to the Fair Work Commission to reduce Ms Agboola's redundancy entitlement to 1 week, on the grounds that Ms Agboola had rejected the offer of a suitable alternative position at Upgrade Health's clinic in Maryborough ('Maryborough Clinic'). The application suggested that Ms Agboola had rejected the offer because she found that "Relocating to Maryborough is not a viable option for me due to personal and logistical reasons".[1]

[5] On 3 February 2026, Ms Agboola advised my Chambers that she opposed the variation of her redundancy payment on the basis that Upgrade Health did not obtain acceptable alternative employment for her.

[6] I issued directions to the parties to file and serve submissions and materials on which they sort to rely. The parties consented to the application being determined on the papers.

[7] Section 120 of the Act 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 Act.

[8] 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 can exercise its discretion. Section 120(2) of the Act 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 (s.120(3)).

[9] The question for consideration in the present matter is whether Upgrade Health obtained other acceptable employment for Ms Agboola and if this is the case, whether I will exercise my discretion to reduce those amounts.

[10] On Monday 5 January 2026, Mr Bracken Cunningham, National Therapist Manager for Upgrade Health met with Ms Agboola. During the meeting Ms Agboola was advised that there was no longer enough work for three Physiotherapists at the Gladstone Clinic and as such, her position was "at risk" of redundancy. Ms Agboola was advised that there was however a position available at Upgrade Health's Maryborough clinic, roughly 300 kms from Gladstone - if Ms Agboola was willing to relocate. The evidence suggests that the offer to relocate was declined.

• [11] The following morning at 7.59 am, Mr Cunningham sent Ms Agboola an email which read:[2]

Thank you for your time yesterday despite turning me down on my offer to relocate.

As I said, we are in a position where there does not appear to be enough work for the 3 physiotherapists in Gladstone but we do have capacity in Maryborough.

I have another offer I would like you to seriously consider this morning.

We are willing to bring your permanent residency visa forward if you are willing to transfer to our Maryborough clinic.

If you choose to go ahead with this we can commence your PR visa application as of October 2026.

Please consider this and let me know by midday today.

• [12] I take this email to suggest that, with the knowledge that Ms Agboola had declined the offer to relocate, Upgrade health was now proposing to prioritise her Permanent Residency Visa application (PR) if she were to reconsider the position at the Maryborough clinic. At 8.48am that same day, Ms Agboola responded to Mr Bracken stating "this is a significant decision to me, and I would need time to carefully consider it. I will respond after due consideration."[3] Mr Cunningham responded, thanking Ms Agboola for her quick response and adding "From our point of view this is time sensitive, but I understand your need to consider it thoroughly."[4]

• [13] Later that same morning, Ms Agboola sought further information from Mr Cunningham to assist her consideration of the relocation including proposed timing and details of caseload at Maryborough office.[5] Mr Cunningham responded providing information about the case load.[6] With respect to timing, Ms Agboola was advised "we would ideally like you to move down over the weekend."[7] At 1.50pm that same day, Ms Agboola received an email from Mr Shayne Podbury (Director/Founder) which read as follows:[8]

In regards to the PR offer for you, I have a meeting with our immigration lawyer tomorrow morning so I will be able to let you know the details following that meeting. Therefore, we can extend your decision deadline to 12pm tomorrow in regards to your move to Maryborough. (emphasis added)

• [14] The following morning, Ms Agboola sent an email to Mr Cunningham which read:[9]

Thank you for sharing the proposed relocation. I want to note that the timeframe given is far too short, and I am unable to relocate by the end of this week.

I have an established life here, with existing commitments and paid contracts (including housing and personal obligations) that cannot be exited or transferred at such short notice. If relocation were to be considered at all, it would need to commence later in

the month, realistically from February to allow time for proper planning and transition.

Before I can consider this further, I would need clarification on the following:

• - Whether the organisation would cover relocation costs, accommodation, and all expenses I would incur as a result of the move
• - The level of job security at the new location, including contract length and termination conditions
• - The rationale for selecting me specifically for this relocation
• - What would be expected of me after PR is granted, should I decide to proceed
• - The specific PR pathway being proposed (visa type and indicative timeline)

Given the scale of this decision and the limited notice, I am unable to commit without these assurances and a reasonable relocation timeframe.

I remain open to discussion once these points are clarified."

• [15] Ms Agboola received a response at 2.32pm that same afternoon in which Mr Cunningham confirmed Upgrade Health's reasoning for the quick relocation and indicated that they could "delay this by one further week, but it will be required for you to commence in Maryborough by Monday 19th January".[10] In response to Ms Agboola's concerns about relocation costs, it was suggested Upgrade Health would pay Ms Agboola's lease break costs and provide her $1000 towards accommodation in Maryborough.[11] Ms Agboola was advised that "we require your decision by 1pm Thursday 8th January 2026.[12] I note this deadline provided Ms Agboola less than 24 hours to make her decision and that Mr Cunningham sent a further email in which he subsequently required Ms Agboola's response by 12pm the next day.[13]

• [16] Ms Agboola and Mr Cunningham exchanged further emails in which Ms Agboola sought confirmation of the following points before she made her final decision: (Mr Cunningham's response is included in italics).[14]

1. "Could you please confirm if the PR offer is guaranteed before I commit to the move? As the meeting with the immigration lawyer has been rescheduled for Friday, I would appreciate more certainty on this aspect before making a decision".

"From our end, if we can move you along the PR pathway sooner we will do this without question, the meeting on Friday is to ensure it is possible".

1. "If I decide not to accept the relocation offer, what is the proposed way forward for my position here in Gladstone? This was not answered in your mail.".

"At this point we are actively looking for but have not identified any other suitable options to continue your employment excluding the redeployment to Maryborough".

• [17] On 8 January 2026, Ms Agboola sent the following email to Mr Cunningham:[15]

Thank you for the offer and for the time taken to explore redeployment options.

After careful consideration, I have decided that relocating to Maryborough is not a viable option for me due to logistical reasons previously outlined. I appreciate the opportunity and the efforts made. However, I am unable to accept the redeployment.

Please let me know the next steps including any timelines for identifying alternative options, progressing matters and any final arrangements,

• [18] The following day, 9 January 2026, Ms Agboola received formal correspondence from Mr Cunningham in which it was noted that as a result of the ending of a "significant contract with Sonic in mid-December the position of physiotherapist is no longer needed. Regrettably this means your employment will terminate".[16] Ms Agboola was further advised:[17]

"Unfortunately, as you have declined the option of redeployment where we would have been able to continue your employment with the same duties and at the same rate of remuneration, we are in a position where there is no longer a role for you at Health First Gladstone......."

• [19] Upgrade Health 'submitted the following in their Form F45A:[18]

"This candidate was offered employment in one of our other nearby clinics in Maryborough Queensland. All transport, initial accommodation, and other associated costs were offered to be paid to the candidate. This was deeded very reasonable by our employment lawyer. She was offered the same role on the same pay."

[20] In brief summary, Upgrade Health submit:

• • Ms Agboola was offered acceptable alternate employment, in the same role on the same pay.[19]

• Upgrade health offered to pay Ms Agbool's transportation and initial accommodation costs.

• • Ms Agboola was given reasonable time to consider this role, including an option for her to provide alternate options, but she chose not to.[20]

• • Ms Agboola refused the relocation offer because 'Relocating to Maryborough is not a viable option for me due to personal and logistical reasons."[21]

[21] It is clear from the Upgrade Health submissions that they only intend to rely on s120(1)(b)(i) of the Act, noting that no supporting material has been provided in respect of s120(1)(b)(ii). In light of this, I do not take into account any matters relating to Upgrade Health's financial circumstances and treat such matters neutrally.

• [22] Ms Agboola in her response to the Application submitted the following:[22]

"I formally object to the application. I maintain that I am entitled to four (4) weeks' redundancy pay in accordance with my employment conditions."

[23] Ms Agboola's relevant submissions can be summarised as follows:

• • The circumstances surrounding her termination were unreasonable, noting that she had only three days to make a decision, which was not enough time to allow for any meaningful consideration or adjustment.[23]

• The Maryborough clinic is approximately a three-hour drive from her original work location and would have required relocation rather than a simple transfer.

• She has an established life in Maryborough, with existing commitments and paid contracts (including housing and personal obligations) that could not be exited or transferred at such short notice.

• • She had no accommodation secured in Maryborough and the financial compensation offered to cover relocation expenses was "wholly inadequate."[24] As such, accepting the relocation proposal would have involved substantial financial risk and uncertainty.[25]

• She was not given an opportunity to respond, consult, or explore reasonable alternatives. Ms Agboola says that while the employer suggests that alternative options were explored, no concrete alternative proposal was presented to her. The only alternative ideas discussed were suggestions she had raised in an effort to improve operations and increase revenue in the Gladstone clinic.

[24] In summary, Ms Agboola contends that, as a result of the abrupt termination, insufficient notice, inadequate relocation support, and lack of transparency, she suffered financial loss and disruption that could not reasonably be mitigated within the timeframe provided. In these circumstances, it is neither fair nor reasonable that her redundancy entitlement be reduced."

• [25] There are two elements to section 120(1)(b), I must first be satisfied that the position in question was obtained by Upgrade Health. The second element is determining whether the position obtained was acceptable. If the position is found to be obtained and acceptable, I must then consider whether to use my discretion to reduce the amount owing to Ms Agboola.[26]

[26] It is not in dispute that Upgrade Health obtained alternative employment for Ms Agboola. The key issue to be determined in this case therefore is whether the employment obtained was "acceptable" within the meaning of section 120(1)(b)(i) of the Act.

• [27] The onus rests on Upgrade Health to demonstrate that the position at the Maryborough Clinic was acceptable alternative employment. The determination of that issue may involve a consideration of such matters as pay levels, hours of work, seniority, fringe benefits, workload and speed, job security and travelling time. Whether the alternative employment is "acceptable" is to be determined objectively, not by reference to whether Ms Agboola considered that it was subjectively acceptable.[27]

• [28] As noted by the Full Bench in Australian Chamber of Manufacturers v Derole Nominees Pty Ltd at 124 (Derole Nominees):[28]

"What constitutes "acceptable alternative employment" is a matter to be determined as we have said, on an objective basis. Alternative employment accepted by the employee (and its corollary, alternative employment acceptable to the employee) cannot be an appropriate application of the words because that meaning would give an employee an unreasonable and uncontrollable opportunity to reject the new employment in order to receive redundancy pay; the exemption provisions would be without practical effect.

Yet the use of the qualification "acceptable" is a clear indication that it is not any employment which complies but that which meets the relevant standard. In our opinion there are obvious elections of such a standard including the work being of like nature; the location being not unreasonably distant; the pay arrangements complying with award requirements. There will probably be others."

• [29] The decision in the matter DRW Investments Pty Ltd t/a Wettenhalls v Timothy Richards & Others (DRW Investments), is also relevant to this matter. Sams DP makes helpful observations regarding the interpretation of the words "other acceptable employment" under s.120(1)(b)(i) of the Act:[29]

"[178] ... The underlying principle as to what is 'acceptable employment' does not mean it must be acceptable to the employee. ... The test is an objective one. ...

[182] ... In Vicstaff Pty Ltd (t/as Stratco) v May [2010] FWA 3141; (2010) 204 IR 233 ('Vicstaff'), Bissett C said at paras [29]-30]:

29. The determination of whether or not alternative employment is acceptable must be determined objectively and not subjectively from the perspective of the employer or employees. That the alternative employment may be rejected does not objectively make it unacceptable nor does the fact that the employment was offered make it, by virtue of the offer, acceptable. ...

30. It is therefore incumbent upon the employer (Vicstaff) in this matter to demonstrate that the alternative employment is acceptable taking into account all matters relevant in such a consideration. Had the alternative work been considered acceptable to the individuals one imagines they would have accepted the work offered.'

[184] It is also necessary to take account of whether the employee is cooperative and

willing to meaningfully engage with the employer in discussions on any offers of alternative employment. An unreasonable refusal to accept the alternative employment or a failure to meaningfully engage with the employer about objectively reasonable offers, may result in orders to reduce the redundancy pay entitlement to nil. As the authorities make plain, these are factors which may influence the Commission's exercise of discretion under s 120 of the Act."

[30] Ms Agboola does not dispute that the positions at the Gladstone and Maryborough clinics were comparable in most respects other than the location. As the Full Bench observed in Derole Nominees, location is a significant factor to be considered when assessing whether an alternate position is "acceptable". In this case, it was not simply a matter of Ms Agboola having to undertake additional daily travel to get to the new clinic, accepting the proposed position would have required her to relocate her entire professional and personal life. The question therefore is not simply whether the offer to compensate her for a one-off drive from Gladstone to Maryborough was reasonable, or indeed whether or not the offer of $1000 to compensate her for any costs associated with relocation were adequate - the question for this decision is whether a role that required her to relocate her professional and personal life from Gladstone to Maryborough presented as a reasonably acceptable alternative to her current role.

[31] In my view, where we live is a personal choice, and not one that can reasonably be imposed by an employer. The consequences of accepting the position in the Maryborough clinic would have been significant for Ms Agboola. Accepting the proposed position would have meant leaving her established social and support networks behind, with the uncertainty of re-establishing herself in a new location. Despite these most obvious impacts, I have observed Upgrade Health to have shown an overall disregard for the significance of such a move for Ms Agboola, whilst focusing solely on their urgent requirement to fill the role in the Maryborough Clinic. Viewed objectively these considerations do not weigh in favour of a finding that Ms Agboola was offered acceptable employment.

[32] Furthermore, I agree that the pressure placed on Ms Agboola to make such a significant and life changing decision in the space of three days, and without all of the information she had requested was indeed unreasonable. It may well be true that had Ms Agboola been provided satisfactory answers to her questions, and afforded time to explore the implications of moving her life from Gladstone to Maryborough, she may well have come to another decision. However, in the absence of such assurances, particularly as they related to Upgrade's "PR offer", it is understandable that Ms Agboola did not find the proposal acceptable. This does not weigh in favour of a finding that Ms Agboola was offered acceptable employment.

• [33] The extent to which an employee "is cooperative and willing to meaningfully engage with the employer in discussions on any offers of alternative employment" is also a relevant consideration in this matter.[30] Having considered the submissions of the parties I accept that Ms Agboola meaningfully engaged with Upgrade Health regarding the proposed position, and remained willing and open to other proposals or alternatives. I am satisfied that Ms Agboola clearly outlined her concerns with the proposed role and why she found it unacceptable. This consideration does not weigh in favour of a finding that she was offered acceptable employment.

[34] Determining whether the role offered to Ms Agboola was acceptable requires an objective assessment of the suitability of the role to her in the context of her personal circumstances.

[35] Having considered all of the submissions and circumstances of this matter I find that, having meaningfully engaged in discussions regarding the proposed alternate position, it was reasonable for Ms Agboola to have reached the conclusion that she was unable to accept the offer of redeployment.

[36] Consequently, I find that Upgrade Health did not obtain acceptable alternative employment for Ms Agboola within the meaning of section 120(1)(b)(i) of the Act.

[37] As the requirements of section 120(1) have not been met, it is not open to me to consider any reduction in Ms Agboola's redundancy entitlement.

[38] The application is dismissed. I order accordingly.

[39] It follows that the Redundancy amount must be paid in accordance with the requirement to do so in s.119 of the FWA.

[2] P.43 of the DHB - Respondent's Submissions.

[5] P.44 of the DHB - Respondent's Submissions.

[8] P.45 of the DHB - Respondent's Submissions.

[9] P.46 of the DHB - Respondent's Submissions.

[10] P.18 of the DHB - Applicant's Submissions.

[14] P.38-39 of the DHB - Respondent's Submissions.

[15] P.39 of the DHB - Respondent's Submissions.

[16] P.32 of the DHB - Respondent's Letter of Termination.

[19] P.13 of the DHB - Applicant's Submissions.

[22] P.24 of the DHB - Respondent's Response to the Application.

[23] P.29 of the DHB - Respondent's Initial Submissions.

[26] Kelly Group (Administration) Pty Ltd [2023] FWC 2650.

[27] Clothing and Allied Trade Union of Australia v Hot Tuna Pty Ltd (1988) 27 IR 226 at 230-231, cited with approval in Australian Commercial Catering Pty Ltd v Marcelia Powell and Maria Togia; Marcelia Powell v Australian Commercial Catering Pty Ltd [2016] FWCFB 5467 at [37].

[28] [1990] AIRC 980; (1990) 140 IR 123.

[29] [2016] FWC 461, [178]-[184].

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