1 Fair Work Act 2009 s.604 - Appeal of decisions Phuong Ha v Asuria People Services Pty Limited (C2026/5172) DEPUTY PRESIDENT COLMAN MELBOURNE, 6 MAY 2026 Stay application under s 606 – stay refused [1] Phuong Ha has applied under s 606 of the Fair Work Act 2009 (Act) for a stay in connection with his appeal from a decision of Deputy President Easton on 17 April 2026 ([2026] FWC 60) which reduced the amount of Mr Ha’s redundancy pay to nil pursuant to s 120 of the Act. Section 120 applies if an employee is entitled to an amount of redundancy pay under s 119 and the employer ‘obtains other acceptable employment for the employee’. Section 120(2) provides that, on application by the employer, 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.’ In his decision, the Deputy President found that Asuria People Services Pty Ltd (respondent) had obtained acceptable alternative employment for Mr Ha in a comparable role with similar duties, unchanged hours, ongoing management responsibilities, and in a location that was a reasonable distance from his previous job. The Deputy President concluded that the alternative employment was objectively acceptable and that it was appropriate to reduce Mr Ha’s redundancy entitlement to nil. [2] Mr Ha seeks an order to stay the Deputy President’s decision pending the determination of his appeal. The principles that apply to stay applications are well-established. Before granting a stay, the Commission must be satisfied that the appellant has presented an arguable case that the appeal should be upheld, with some reasonable prospects of success both in respect of permission to appeal and the merits, and that the balance of convenience weighs in favour of a stay being granted. [3] I do not propose to summarise the six grounds of appeal that are set out in Mr Ha’s notice of appeal. Each of these grounds alleges that the Deputy President erred in reaching his decision. The grounds are not strong. It appears to me that the Deputy President’s findings were comfortably open on the evidence, and that his discretion was exercised in an orthodox way. Nevertheless, I am prepared to accept that for the purposes of the stay application Mr Ha has an arguable case in respect of permission to appeal and the merits. [4] In my view however the balance of convenience does not favour the granting of a stay. The effect of a stay would be to reinstate the legal entitlement of Mr Ha to redundancy payments [2026] FWC 1629 DECISION [2026] FWC 1629 2 under s 119 of the Act pending the outcome of the appeal. The respondent would then be required to pay Mr Ha those amounts before the appeal was determined. Ordinarily, a stay has a suspensive effect that preserves the status quo pending the outcome of an appeal. But here, a stay would effectively reverse the outcome of the decision at first instance and require the respondent to make the payment that the Deputy President’s decision disengaged. Then, if Mr Ha’s appeal were unsuccessful, he would have to repay this money. This course is neither convenient nor appropriate. It contemplates a payment and then a repayment when no payment may ultimately be necessary. Mr Ha said that there is no prejudice to the respondent in paying the money now. But there is no apparent prejudice to him in waiting until the appeal is decided. The starting point is that the respondent was successful before the Deputy President and is entitled to the benefit of that success. Some good reason is required to interfere with the outcome pending the determination of the appeal. There is no good reason in this case. If Mr Ha’s appeal is successful, he will receive his redundancy payment in due course. In this regard, the application for permission to appeal is listed for hearing on 20 May 2026. [5] The stay application is refused. DEPUTY PRESIDENT Appearances: K. Ha for himself K. Lu for Asuria People Services Pty Limited Hearing details: 2026 Melbourne 6 May Printed by authority of the Commonwealth Government Printer <PR799762>