Fair Work Act 2009

s.120 - Application to vary redundancy pay for other employment or incapacity to pay

Vehicle Access Solutions Pty Ltd Trading As Vehicle Access Solutions

[1] Vehicle Access Solutions Pty Ltd Trading as Vehicle Access Solutions (VAS/Applicant) has applied to the Fair Work Commission (Commission) for an order pursuant to section 120 of the Fair Work Act 2009 (Cth) (the Act) to vary the amount of redundancy pay to be paid to Mr Bruno Bruzzaniti (Respondent).

[2] The application is made pursuant to s.120(b)(i) of the Act on the basis that the Applicant submits that it obtained and offered acceptable alternative employment within the Applicant's business, and that the offer was refused. The Applicant does not rely on s.120(b)(ii) of the Act.

[3] VAS is seeking an order that the amount of redundancy pay be reduced from 8 weeks to nil. Mr Bruzzaniti did not accept the alternative employment, as he contends it was not acceptable. He asserts the role offered is not like for like, it constitutes a demotion, is not a genuine redundancy and he is owed redundancy pay.

[4] Mr Bruzzaniti initially opposed the making of the requested order and this matter was listed for hearing with directions issued. However, on 23 February 2026, Mr Bruzzaniti advised that although he maintains that the alternate employment offered to him was not acceptable, he no longer opposes VAS's application and no longer wished to be heard in the matter. Accordingly, I vacated the hearing to determine this matter on the papers. I also requested some additional information from VAS which was filed on 3 March 2026. Mr Bruzzaniti then took the opportunity to also file further submissions on 10 March 2025. I have taken into consideration all of the materials filed by the parties in this matter.

[5] Section 119 of the Act provides the entitlement to severance pay payable by an employer if an employee's employment is terminated due to redundancy. The amount of redundancy pay is dependent on the period of continuous service with the employer and ranges from 4 weeks to 16 weeks. This provision applies to national system employers and those employers are not excluded by s.123 of the Act.

[6] 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."

[7] Vehicle Access Solutions based in Campbellfield Victoria develops accessible vehicle transport solutions for people with disability and limited mobility. The customised solutions convert vehicles for wheelchair access, install lifts and ramps, supply tailgates or outfit service vehicles. AVA (All Vehicle Accessories) based in Port Melbourne and Campbellfield, specialises in aftermarket vehicle accessories for all types of vehicles. Both businesses are divisions of the AVA Group, a family business.

[8] Mr Bruzzaniti was employed by AVA on 6 April 2022; his period of employment is 4 years and one month, and the relevant industrial instrument is the Vehicle Repair, Services and Retail Award 2020 (the Award).

[9] On 3 January 2024 Mr Bruzzaniti was employed as Operations Manager for VAS. The Applicant contends that there were performance concerns and on 29 January 2025 by agreement, Mr Bruzzaniti stepped down into an Operations Support role for VAS. The Applicant contends that the Support role did not have direct reports unlike the Operations Manager role. The Applicant further contends that in October 2025, Mr Bruzzaniti agreed to perform a technical/ sales support role located at the AVA Port Melbourne site, however, he remained an employee of VAS.

[10] Mr Bruzzaniti disputes that he agreed to step down from the VAS Operations Manager role, he says that he performed other roles under protest and therefore he is correctly classified as Operations Manager and the redeployment role offered to him is unsuitable as it is a demotion. Mr Bruzzaniti further contends that the Applicant fails to document the additional responsibilities held from January 2025 to 15 November 2025 which includes purchasing and national spare parts. Mr Bruzzaniti contends that his role was unconfirmed when he moved back to AVA on 15 November 2025. In respect to the role offered in place of redundancy he said that it was described as a sales role, that he was not given 5 weeks but instead 4 weeks' notice and it was not explained that all other terms and conditions would be unchanged or that his service would be continuous. While Mr Bruzzaniti acknowledges there may have been other documents, he only ever signed the VAS Operations Manager contract of employment.

[11] The Applicant submits that the alternative employment offered involved no change to hours of work, that the location would result in less travel from his home address and that the role would commence at the conclusion of the five weeks' notice. Further the Applicant submits that the information was provided and that he had sufficient time to consider the information about the role. Despite this the Applicant chose to reject the employment and instead demanded payment of redundancy pay even though he was informed that he would not be entitled because of the offer of suitable alternative employment in VAS, a business in which the Respondent had previously worked in the same role. On 22 January 2026, the Respondent emailed the Applicant's HR representative advising that the offered role was a demotion from Operations Manager. On 27 January 2026, the Applicant's HR representative responded advising that Mr Bruzzaniti:

1. Was initially employed in the position of salesperson for AVA.
2. Was offered the role of Operations Manager for VAS but was unable to perform the role to a satisfactory level.
3. Was demoted to Workshop Support- Vic for VAS on the same salary on 29 January 2025.
4. Was issued a contract dated 17 July 2025, as there was a change in ABN for VAS noting the position of Workshop Support-Vic. Even though the contract was not signed the contract represented the role performed. It is noted that Mr Bruzzaniti expressed disappointment with the title, and he asked if he may continue to operate his own private business.
5. Was offered a sales role with AVA in October 2025 in Port Melbourne due to performance concerns. This role was accepted and even though the role was with AVA, payroll was not amended resulting in payment continuing through VAS.
6. Was informed should he decline the alternative employment he would be required to work four weeks' notice.

[12] The Applicant tendered position descriptions describing the differing roles, reporting structure and responsibilities, but did not confirm whether the Respondent had received these or were developed at some later stage. The Respondent contends that none of the position descriptions were raised with him at any point in his employment.

[13] The evidence tendered demonstrates that on 5 January 2026 all AVA employees were invited to a meeting and informed by the CEO that AVA would potentially close. But Mr Bruzzaniti was directly informed on 6 January 2025. Correspondence to AVA staff including the Respondent dated 5 January 2026 was to announce the consultation period and explain the reasons for the potential closure.

[14] On 8 January 2025 the CEO informed staff of the decision to close AVA, but also advised Mr Bruzzaniti in writing that the AVA Group was in a position to offer suitable alternative employment with VAS in sales and in the role that he has already performed.

[15] Statutory declarations were tendered by Darren Bailey, General Manager of VAS confirming that the positions held by the Respondent from 2022. Mr Bailey states that he employed the Respondent as Operations Manager for VAS, then subsequently moved him into a workshop coordinator role assisting the new Victorian Operations Manager. He further states that he was aware that he was moved to a sales role in AVA from October 2025 until his completion date.

[16] A statutory declaration from Jade Stevens, a colleague, states that he had worked with the Respondent from 2017 to March 2020 and then again in AVA from December 2025 until his departure. In respect to this evidence, Mr Stevens states that the Respondent did not hold a managerial, supervisory or leadership position, rather his primary duties were sales and technical support.

[17] A further statutory declaration was received from Terry Martin, Workshop Manager. Mr Martin states that he worked with the Respondent at AVA from November 2017 until January 2025 and then again at VAS when the Respondent reported to him from January 2025 until September 2025 in the position of Workshop Controller. Mr Martin further states that the Respondent transferred to AVA from September 2025 until his departure; during both periods of working for AVA he held sales/ technical roles and had no managerial responsibility.

[18] While Mr Bruzzaniti disputes the titles referenced in the statutory declarations (further in so far as contending the titles of workshop controller, workshop coordinator and workshop technical sales support are confusing and an attempt to "obscure' the nature of the role) from his colleagues/ managers he does not dispute the factual characterisation of the role as of sales/ technical capacity. In the further correspondence of 17 February 2026 from the Respondent, he raises other objections including that the application is made by VAS, a separate legal entity to AVA which was his employer.

[19] Section 120 of the Act allows an employer to apply to the Commission to vary its obligation to make redundancy payments. While an employer may make an application to vary its obligation to pay severance payments, the onus rests on the employer to satisfy the Commission that the grounds on which it relies justifies the Commission to use its discretion. The grounds must relate to other acceptable employment obtained by the employer for the employee, or the employer's incapacity to pay the amount due. The Commission has the discretion to reduce the employer's obligation to pay the employee's entitlement to nil or to a partial amount.

• [20] The standards concerning s.120 (b) (i) of the Act have been dealt with in a number of decisions of this Commission. The use of the word "obtains" in s.120 (1)(b)(i) relates to action by the employer to "cause acceptable alternative employment to become available to the employee,"[1] and "must be the result of the conscious, intended, acts of the person concerned, as distinct from, for example, coming into possession of something by gift or inheritance."[2]

• [21] Further, the meaning of "other acceptable employment" has been considered; importantly "acceptable" requires that the alternative employment meets a relevant objective test. The test is not whether the alternative employment is identical, but consideration of whether the work is of a like nature, the effect of location, pay, the hours of work, workload, job security, fringe benefits, compliance with statutory conditions, seniority and the like, and not whether the employee finds the alternative employment to be acceptable.[3]

[22] While the application was made by VAS, I do observe that both VAS and AVA are part of a group of companies parented by the AVA Group. The decision was the potential closure of AVA and hence all AVA staff were consulted in early 2026 before any impact of the Respondent's decision. While the Respondent was working at AVA, he was still being paid through VAS at the time of the announcement of potential closure. In fact, it is not disputed that the Respondent worked across both AVA and VAS at different points in time without affecting his continuity of employment or his entitlements, despite the role changes. The Applicant admits to having maintained poor contractual records of each change; however, I do accept on the evidence that the Respondent's role had changed over the period of employment. While the Respondent contends that his role was Operations Manager because it was the only contract he signed and the other roles were performed under protest, I do not accept his position was Operations Manager but rather was a technical sales role. There was no evidence that the Respondent's role was Operations Manager, nor that any role he performed since 29 January 2025 was a management role. The Respondent refers to some of his duties where he may have coached staff, but this task alone does not alter the substantive role held which was a technical sales position.

[23] The initial correspondence of 5 January 2026 announcing the potential closure of AVA notes it is a small business which ordinarily would not attract severance pay, however, as part of the AVA group severance pay would apply in the event of termination of employment due to redundancy. Further, I observe that the letter is not on AVA letterhead but VAS. Curiously to further add to some level of confusion, the letter of 8 January 2026 which informs the Respondent of the alternative employment it is on AVA letterhead even though the Respondent was being paid through VAS at the time. Despite the blurring of company lines, lack of formal correspondence confirming the changes in position over time and sloppy materials in support of this application, it does appear that the Respondent was offered as an alternative a role he already held and on the same terms and conditions other than the site (which the Respondent had previously worked at in any event).

[24] Arguably this application was unnecessary as Mr Bruzziniti was already performing the role for VAS (but delivering services to AVA) which was offered as the "suitable alternative employment." Regardless, I do so find that the Respondent's severance payment ought to be reduced to nil. The position the Respondent held was through VAS but performed for AVA and the position is acceptable and suitable taking into consideration tenure, terms and conditions, the substance of the role, continuation with the same employer, continuity of employment and the like.

[25] A further observation concerns the period of notice. The Applicant's materials were inconsistent regarding whether 4 or 5 weeks' notice was given. No records of final pay were tendered into evidence. If the Respondent is over the age of 45, he is entitled to 5 weeks' notice. On my assessment of the limited materials, the Respondent was offered the alternative employment on 8 January 2026 and was given notice until 28 January to accept the role; this is a period of 3 weeks. The letter of 27 January 2026 then extends the period of notice until 4 February 2026, presumably by agreement. Had Mr Bruzzaniti in fact been terminated on 4 February 2026, a period of a further week may be owing if he is over the age of 45 years and had not been paid the extra week on termination of employment. The materials tendered do not clarify the status of notice nor the termination date and the Applicant is encouraged to correct this error if it has occurred.

[26] While I do so determine in accordance with s.120(3) of the Act on the basis of s.120(1)(b)(i) that severance payment ought to be reduced to nil, this application was not assisted by an inadequate process and deficient materials in support. I encourage the Applicant given the size and breadth of business to obtain solid industrial relations advice to bring their employment records into shape and deal with such matters more competently in the future.

1. I order that the severance payment to Mr Bruzzaniti be reduced to nil.

[1] Australian Chamber of Manufactures v Derole Nominees Pty Ltd,[1990] AIRC 980; (1990) 140 IR 123.

[2] FBIS International Protective Services (Aust) Pty Ltd v Maritime Union of Australia, [2015] FCAFC 90.

[3] Op Cit; Re Clerks Salaried Staffs (Agriculture Award) 1999, Print S1216, 24 November 1999; Von Bibra Robina Autovillage Pty Ltd [2007] AIRC 397.

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