Epichealth Pty Ltd T/A Epichealth Medical Clinic - Yarra Glen v Christine Anderson

[2025] FWC 267

[2025] FWC 267

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.120—Redundancy pay

Epichealth Pty Ltd T/A Epichealth Medical Clinic – Yarra Glen
v

Christine Anderson

(C2024/8489)

COMMISSIONER MIRABELLA MELBOURNE, 30 JANUARY 2025

Variation of redundancy pay

1. On 28 November 2024, Epichealth Pty Ltd (the company) applied for an order under s.120 of the Fair Work Act 2009 (the Act) to reduce the redundancy entitlement of Ms Christine Anderson. Ms Anderson had been employed in the position of a part-time medical receptionist in the company’s medical centre since 15 November 2023.

1. Ms Anderson will have worked for the company for just over one year and there is no dispute that she would be entitled to 4 weeks redundancy pay pursuant to s.119 of the Act.

1. The company applied to reduce Ms Anderson’s redundancy pay entitlement to nil because it negotiated with the prospective new owner of the business to offer employment to all existing staff, including Ms Anderson. It contends that this is ‘other acceptable employment’ for the purposes of s.120(1)(b)(i). At the hearing on 30 January 2025, Ms Anderson confirmed that she disputed the application because the new hours of employment were not set at a minimum of 22.5 hours per week.

1. Section 120 of the Act gives the Fair Work Commission (the Commission) the discretion to vary a redundancy pay amount to which an employee would otherwise be entitled under s.119 of the Act. Section 120 applies if the employee is entitled to an amount of redundancy pay under s.119 (s.120(1)(a)) and the employer either obtains ‘other acceptable employment’ or cannot pay the amount of the redundancy pay (s.120(1)(b)). The Commission’s discretion in s.120(2) to vary the redundancy pay to a specified amount (including a nil amount) that it considers appropriate can only be exercised if the conditions of s.120(1) are met. Where an order under s.120(2) is made, the reduced redundancy pay to which the employee is entitled will be the amount specified in the determination (s.120(3)).

1. In this matter, I need to consider whether the company obtained ‘other acceptable employment’ for Ms Anderson and if so, whether I should exercise my discretion to reduce her redundancy pay.

Background

1. The company operated a medical centre at 1 Symonds Street Yarra Glen and sold the business to a new owner, Yarra Glen Family Clinic effective 1 December 2024.

1. The business continues to operate as a medical centre at the same location.

Submissions

1. The company submitted amongst other things, that it obtained acceptable employment for Ms Anderson within the meaning of s.120 of the Act. It said it obtained a suitable role as a part-time medical receptionist in the medical clinic under the new ownership. They submit that the 4 weeks redundancy pay amount to which Ms Anderson is entitled should be reduced to nil, because the new position does not cause any reduction in the terms and conditions of her employment and was to be performed at the same location as her position with the company.

Consideration

1. It is not in dispute that the company obtained other employment for Ms Anderson. It engaged with discussions with the prospective new owner and the company submits that during these discussions the new owner agreed to offer employment to all staff on similar if not the same conditions as they were employed with the company. Further, the company submits it sent a list of all staff to the prospective new owner and arranged a meeting with the new owner and all existing staff. Further, the new owner issued an Employment Agreement to Ms Anderson. This is relevant because s.120 applies only where the employer obtains ‘other acceptable employment for the employee’; that is, Ms Anderson must have been an employee when the offer was made.

1. The question of whether the other employment is ‘acceptable’ is an objective assessment. The ‘other employment’ may necessarily be different in some regard to the existing employment. In assessing whether other employment is acceptable, it is relevant to consider the differences between the existing employment and the role that has been offered and accepted by Ms Anderson.

1. Firstly, the location of the role is the same. Further, Ms Anderson would be paid the same, would work a similar number of hours, have the same title and do the same work. The company submitted that from 2 December 2024 to 19 December 2024, Ms Anderson worked the rostered hours for the new employer based on a roster they had supplied to the new owner. Ms Anderson conceded that these hours she worked were ‘pretty much’ the hours she would have worked for the company. Ms Anderson also conceded that she worked about 21 hours in the first week of January. During the probationary period with the new owner, Ms Anderson was dismissed effective 29 January 2025.

1. Although, the ‘other employment’ offered did not need to be the same as Ms Anderson’s job prior to the new ownership, it appears for all material purposes that it was. The question I need to answer is whether the other employment offered to Ms Anderson by the company was objectively acceptable; that is, capable of being agreed to or suitable.

1. Although the company’s contract with Ms Anderson was for her to work a minimum of 22.5 hours per week and the new owner’s contract was amended to stipulate 22.5 hours, I do not consider the word ‘minimum’ to be so significant in this matter as to render the ‘other employment’ unacceptable.

1. I find that the company did obtain ‘acceptable other employment’ for Ms Anderson for the purposes of s.120(1)(b)(i) of the Act.

1. Having satisfied the requirements of s.120(1), I must now consider whether to exercise my discretion to reduce Ms Anderson’s redundancy pay. In my view, and taking all the relevant matters into consideration, it is appropriate to reduce Ms Anderson’s redundancy pay.

Conclusion

1. I am satisfied that the company obtained other acceptable employment for Ms Anderson, and that in the circumstances I should exercise my discretion to reduce the redundancy pay to which she is entitled to nil.

1. An order will be issued separately reflecting this decision.

COMMISSIONER

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