Application by The Support People Pty Ltd - [2025] FWC 2628

[2025] FWC 2628

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Application by The Support People Pty Ltd

(C2025/8067)

COMMISSIONER REDFORD

MELBOURNE, 10 SEPTEMBER 2025

Application for reduction of redundancy pay – whether acceptable alternative employment obtained – alternative employment offer not objectively acceptable – application dismissed

The Support People Pty Ltd (the Support People) has made an application pursuant to s 120 of the Fair Work Act 2009 (the Act) seeking that the amount of redundancy pay due to be paid to Ms Megan Poulton be reduced from seven weeks pay to two weeks redundancy pay. Ms Poulton opposes the application.
I made directions for the parties to file and serve material in relation to their respective positions. I conducted a short hearing to determine the matter, which occurred by way of determinative conference on 10 September 2025. Ms Poulton appeared for herself at the hearing, and Ms Chowdry and Ms Gatt appeared for the Support People.
Ms Poulton was employed with the Support People in a compliance and administrative role described as “Compliance and Risk Officer”. The Support People is a business which provides NDIS support to people with a disability. Prior to the end of her employment Ms Poulton worked part time, four days per week. She had been authorised to work from home three days per week and was required to travel to Ballarat to work from the office on the other day. She describes her role as involving compliance oversight, risk management, monitoring, reporting, advising management and policy development.
In August 2025, the Support People advised Ms Poulton that it had decided to restructure its business, which would include outsourcing payroll and human resources functions. Ms Poulton was told her position may be redundant and this was later confirmed.
The Support People offered Ms Poulton an alternative role. The role was described as Compliance and Risk Officer working two days per week. The role would have required Ms Poulton to work both days from the office in Ballarat.
The Support People say that the alternative role offered to Ms Poulton was the same job as she had been previously doing, albeit that the administrative part of the role would be reduced to remove responsibility for things including asset register and audit responsibilities. Ms Poulton says that the offer was “vague” and that there was no position description, contract or terms and conditions provided. She said she had been led to believe the alternative role would be limited to drafting compliance policies and procedures and was thus a narrowing of duties and professional status. The Support People say the offer of the alternative role was genuine. It is referred to in a letter sent to Ms Poulter on 22 August 2025.
Ms Poulton says that in a meeting she attended she was also “offered” a HR Officer role but was also told the role had also been offered…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] FWC 2628
Decision Date: 10 SEPTEMBER 2025

CaseChat Overview and Summary

The Support People Pty Ltd made an application under section 120 of the Fair Work Act 2009 seeking to reduce the amount of redundancy pay due to Ms Megan Poulton. The Support People argued that they had offered Ms Poulton alternative employment, which would reduce her entitlement from seven weeks' pay to two weeks' pay. Ms Poulton opposed the application. The matter was heard by Commissioner Redford, who was required to determine whether the Support People had obtained an acceptable alternative employment for Ms Poulton, as required by section 120(1) of the Act. The decision hinged on whether the alternative employment offered to Ms Poulton was both obtained and acceptable.

To satisfy the condition of obtaining alternative employment, the employer must actively acquire or secure employment through its conscious and intended actions. The Commission considered whether the Support People had taken sufficient steps to offer Ms Poulton a defined alternative role. Although the Support People provided some details about the alternative role, it was insufficient to satisfy the requirement that the employment be acceptable. The alternative role proposed by the Support People was a reduction in hours and responsibility, which resulted in a significant decrease in remuneration. The Commission found that the reduction in remuneration was not objectively acceptable, as it did not bear a sufficient comparability to Ms Poulton's original employment.

The Commission dismissed the Support People's application. The employer had not satisfied the conditions of section 120(1) of the Act, as the alternative employment offered to Ms Poulton was neither obtained nor acceptable. The Commission issued an order dismissing the application and Ms Poulton's entitlement to seven weeks' redundancy pay was upheld.

Orders