Utility Mapping (Aust) Pty Ltd Trading AS Utility Mapping - [2025] FWC 2805

[2025] FWC 2805

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009

s.120—Redundancy pay

Utility Mapping (Aust) Pty Ltd Trading AS Utility Mapping

(C2025/5720)

DEPUTY PRESIDENT EASTON

SYDNEY, 19 SEPTEMBER 2025

Application to vary redundancy pay – acceptable alternative employment – principles regarding exercise of discretion to reduce redundancy pay – no loss of remuneration – reduced seniority – acceptable alternative employment – finding that the employer did obtain acceptable alternative employment for the employee – remedy – discretionary relief –application granted.

Mr Alexander Jones was employed by Utility Mapping (Aust) Pty Ltd for almost 10 years. In June 2025 Utility Mapping formally made Mr Jones’ position as Victorian Sales Manager redundant and offered him an alternate position as National Technical Lead. Mr Jones did not accept the alternative position and his employment ended.

Mr Jones was otherwise entitled to 16 weeks’ severance pay under s.119 of the Fair Work Act 2009 (the FW Act). Utility Mapping applied under s.120 of the FW Act to reduce the severance pay to zero because Utility Mapping obtained other acceptable employment for Mr Jones (per s.120(1)(b)(i)).

The parties filed an Agreed Statement of Facts in the following terms:

1.   The Respondent commenced employment with Utility Mapping (Aust) Pty Ltd (The Applicant) in September 2015.
2.   Utility Mapping specialise in underground utilities searches.
3.   Between 2017 and 2021, The Respondent worked as Operations Manager and was promoted Victorian State Manager in September 2021.
4.   The Respondent's primary place of work was in Melbourne.
5.   The Respondent was provided with an Employment Agreement for Victorian State Manager on 20 December 2021.
6.   As Victorian State Manager, the Respondent had eight direct reports.
7.   From September 2023, the Respondent was paid, $157,500 as a salary and a remuneration bonus of up to 15% of base salary and a motor vehicle allowance of $18,500. The bonus was to be assessed against Key Performance Indicators (KPl's) and measures that would be individually weighted and assessed against the total amount.
8.   As State Manager, the Respondent's Key responsibilities included:-
•Managing and overseeing daily operations and performance of the branch; safety; HR and Sales functions of the business in Victoria;
•Assisting with the management of workflow;
•Assignment of project and coordinating resources;
•Liaising with the finance team to prepare budgets;
•Managing expenditures;
•Developing business by growing existing clients and engaging new clients.

9. In 2025, the Respondent had two young children.
10. On 7 May 2025, Matt Keppich (General Manager- East Coast) sent the Respondent a draft position description for the National Technical Role.
11. Between 9 May 2025 and 23 May 2025, the Respondent took a period of personal leave.
12. On 28 May 2025, the Respondent had a meeting with Matt Keppich regarding the National Technical role and the Respondent asked questions about that role stating he could not make an informed decision without an Employment Agreement and information regarding the bonus KPI structures.
13. On 30 May 2025, the Respondent received an email…

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 2805
Decision Date: 19 SEPTEMBER 2025

CaseChat Overview and Summary

The case involves Mr Alexander Jones, who was employed by Utility Mapping (Aust) Pty Ltd for almost 10 years, and Utility Mapping (Aust) Pty Ltd, which applied under s.120 of the Fair Work Act 2009 (the FW Act) to reduce the severance pay to zero because it obtained other acceptable employment for Mr Jones (per s.120(1)(b)(i)). Mr Jones was otherwise entitled to 16 weeks’ severance pay under s.119 of the FW Act. The legal issues in the case were whether the employer obtained acceptable alternative employment for Mr Jones and whether the Commission should exercise its discretion to reduce the severance pay to nil. The court applied the principles established by earlier Court and Commission decisions for considering the acceptability of alternative positions under s.120 of the FW Act, including the acceptability of the alternative employment being an objective question to be answered by reference to objective factors, the origin of s.120 being to introduce an entitlement to severance pay for all employees under federal awards whose employment had been terminated because of redundancy, and the evidentiary burden falling upon the applicant employer to provide evidence as to the provision of acceptable employment. The court found that the employer did obtain acceptable alternative employment for Mr Jones, and that the employer’s efforts to retain Mr Jones in an acceptable alternative position were genuine. The court also found that Mr Jones acted hastily to exit the business and claim a redundancy package despite the employer’s efforts to retain him. The court exercised its discretion to reduce the severance pay to nil and made the following order under s.120 of the Fair Work Act 2009: 1. The amount of redundancy pay to which Mr Alexander Jones is entitled under s.119 of the Fair Work Act 2009 (Cth) is reduced from 16 weeks’ pay to nil.

Orders