1 Fair Work Act 2009 s.120—Redundancy pay RHC Retail Pty Ltd T/A Rook Partners Asset Management v Susan Stayt (C2024/7480) COMMISSIONER SLOAN SYDNEY, 23 JANUARY 2025 Variation of redundancy pay [1] RHC Retail Pty Ltd t/as Rook Partners Asset Management is in the business of providing commercial advisory, leasing and asset and property management services. As part of that business, it acts as the property manager for shopping centres across New South Wales. [2] Susan Stayt was employed by RHC as Operations Manager Coordinator. Her employment with RHC commenced on about 1 November 2022. [3] As part of its business, RHC managed certain properties. These included properties owned by ISPT Pty Ltd. [4] On 6 August 2024, George Fidler, RHC’s Director, Asset Management, met with Jason Hay of ISPT. Mr Hay informed Mr Fidler that ISPT had decided to engage CBRE to manage particular properties in place of RHC (“ISPT Decision”). Mr Hay stated that the ISPT Decision was expected to be implemented on 1 October 2024. [5] As a result of the ISPT Decision, Ms Stayt’s employment with RHC came to an end on 30 September 2024. In the circumstances, on the terms of s 119 of the Fair Work Act 2009 (“Act”) she was entitled to 4 weeks redundancy pay.1 [6] However, CBRE offered Ms Stayt employment, which commenced on 1 October 2024. RHC contends that it “obtained” that employment for Ms Stayt and that it was “acceptable alternative employment”. On that basis, RHC has applied to the Commission under s 120 of the Act for an order to reduce Ms Stayt’s redundancy pay to zero. [7] Ms Stayt does not oppose the application. Relevant law and principles [8] Section 120 is in these terms: Variation of redundancy pay for other employment or incapacity to pay [2025] FWC 193 DECISION [2025] FWC 193 2 (1) This section applies if: (a) an employee is entitled to be paid an amount of redundancy pay by the employer because of section 119; and (b) the employer: (i) obtains other acceptable employment for the employee; or (ii) cannot pay the amount. (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. [9] The approach that I should take to RHC’s application is well established:2 a. I must first determine whether the pre-conditions for the application of s 120(1) are satisfied – that is, that Ms Stayt has an entitlement under s 119 to redundancy pay, and (relevantly for this case) that RHC has obtained other acceptable employment for her. b. Whether the alternative employment that RHC obtained is “acceptable” is to be determined objectively, not by reference to whether Ms Stayt considered that it was subjectively acceptable. The determination of whether alternative employment is acceptable requires me to make an assessment and value judgment. c. An employer “obtains” other acceptable employment when it acquires or gets the employment by its conscious, intended acts. d. If I determine that the preconditions in s 120(1) are satisfied, my discretion under s 120(2) to reduce the amount of redundancy pay to be paid to Ms Stayt is enlivened. As a result, it will be necessary for me to determine whether to make such a reduction and, if so, by how much. This requires the exercise of a broad discretionary power. e. By reason of s 120(3), any determination I make for a reduced amount of redundancy pay becomes Ms Stayt’s entitlement under s 119. [10] As I have already stated, the first pre-condition to the application of s 120(1) is met: Ms Stayt has an entitlement under s 119 to redundancy pay. To determine whether the other pre-conditions are met I need to answer two questions: a. Did RHC “obtain” Ms Stayt’s employment with CBRE? b. Was that employment “acceptable alternative employment”? [11] For the reasons that follow, the answer to both of those questions is yes. Factual context [2025] FWC 193 3 [12] There is no controversy on the facts and they can be stated briefly: a. During his meeting with Mr Hay on 6 August 2024, Mr Fidler stated that RHC would be open to the transfer of its staff “where their entitlements were recognised by CBRE”. b. On 26 September 2024, Mr Fidler received an email from CBRE confirming that for any employee affected by the ISPT Decision who took up employment with CBRE (which included Ms Stayt) it would recognise their years of service with RHC, and their accrued entitlements to long service leave, annual leave and personal leave. This was subject to RHC making a payment to CBRE equal to the value of those accrued entitlements as at 30 September 2024. c. Mr Fidler informed Ms Stayt of this outcome in an email he sent to her on 27 September 2024. d. Ms Stayt’s last day of employment with RHC was 30 September 2024. She commenced employment with CBRE on 1 October 2024. e. Ms Stayt’s position and responsibilities at CBRE are substantially similar to the position of Operations Manager Coordinator she held with RHC. She continues to perform similar duties to those she performed at RHC. f. Ms Stayt’s remuneration at CBRE is equivalent to, or higher, than that she was receiving at the time her employment with RHC came to an end. Consideration [13] I am satisfied on the evidence that RHC obtained Ms Stayt’s employment with CBRE within the meaning of s 120(1)(b)(i) of the Act. A material consideration in this regard is that RHC entered into an agreement with CBRE, and made a payment to it, to ensure that CBRE recognised Ms Stayt’s period of service with RHC and her accrued leave entitlements. [14] There is also no controversy that Ms Stayt’s position, duties and responsibilities at CBRE are substantially similar to those she had at RHC, and that her current salary is commensurate with that she received at RHC. Coupled with CBRE’s recognition of Ms Stayt’s service and accruals, I am satisfied that Ms Stayt’s employment with CBRE is “acceptable” in the sense required by s 120(1)(b)(i). [15] I have established the jurisdictional facts required by s 120(1). I must now consider whether to exercise my discretion to reduce the amount of Ms Stayt’s redundancy pay. In doing so, it is appropriate to balance the findings set out above against any considerations that might tell against the exercise of the discretion. [16] I do not consider there to be any significant considerations telling against the exercise of my discretion. Ms Stayt does not oppose the application. I consider that it is fair and reasonable in the present circumstances to reduce Ms Stayt’s redundancy entitlement to nil. Determination [17] I am satisfied that RHC obtained acceptable alternative employment for Ms Stayt, and that I should exercise my discretion to reduce her redundancy pay to nil. [2025] FWC 193 4 [18] An order3 will be issued separately reflecting this decision. COMMISSIONER Printed by authority of the Commonwealth Government Printer <PR783505> 1 This was not a matter of controversy. I note for completeness that the exclusions in s 121(1) of the Act do not apply in Ms Stayt’s circumstances. 2 Australian Commercial Catering Pty Ltd v Marcelia Powell and Maria Togia; Marcelia Powell v Australian Commercial Catering Pty Ltd [2016] FWCFB 5467 at [35]-[38] 3 PR783612