1 Fair Work Act 2009 s.120 - Application to vary redundancy pay for other employment or incapacity to pay Worth Being Well Pty. Ltd. Trading AS National Positive Behaviour Support (C2024/8953) COMMISSIONER WILSON MELBOURNE, 6 MARCH 2025 Application for variation of redundancy pay – order issued – redundancy pay reduced to nil. [1] The matter now before the Commission and the subject of this decision is an application made by Worth Being Well Pty. Ltd. T/A National Positive Behaviour Support (the Applicant), for the variation of redundancy pay that would otherwise be payable to Ms Natalie Viscardi, a former employee who worked at the Applicant’s Moonee Ponds site. [2] According to the Applicant’s website, the company “exists to inspire purpose and empowerment for individuals within their community”. Its “team of AHPRA-Registered Psychologists, Provisional Psychologists and Positive Behaviour Support Practitioners use a holistic, evidence-based approach to understand Behaviours of Concern and their underlying causes”. The website also states the Applicant provides services from sites at Moonee Ponds, Malvern East and Geelong. [3] Ms Viscardi’s employment with National Positive Behaviour Support ended on 24 December 2024, with her termination of employment being explained as a redundancy. Having been employed for 1 year and 7 months, Ms Viscardi is, in the absence of an order from the Commission, entitled under the FW Act to two weeks’ notice of her termination and four weeks’ severance pay, given that her termination was characterised as a redundancy. The application by National Positive Behaviour Support would, if granted, reduce the severance pay to nil. [4] The matter was the subject of a hearing before me on Friday, 24 January 2025. Mr Troy Plummer, a solicitor with Employsure appeared for the Applicant, with my permission and with no objection from the Respondent. Ms Viscardi appeared on her own behalf. Evidence was drawn from Ms Leanne McLean, the Applicant’s Head of Compliance, on behalf of the Applicant with Ms Viscardi giving evidence on her own behalf. [5] National Positive Behaviour Support employed Ms Viscardi initially as a behavioural support clinician and then, from 22 July 2024, as a Team Leader undertaking both clinical work as well as the supervision and mentoring of other practitioners. [2025] FWC 635 DECISION [2025] FWC 635 2 [6] Ms Viscardi’s employment ended on 24 December 2024 when she was made redundant.1 At the time of her termination of employment, Ms Viscardi was paid 2 weeks pay in lieu of notice, however she was not paid any severance pay, owing to the application now before me, having been made on 12 December 2024. [7] National Positive Behaviour Support argues the criteria within s.120 of the FW Act are operative and that the Commission should reduce to nil the severance pay otherwise due and payable to Ms Viscardi. [8] The material provided to the Commission about Ms Viscardi’s situation includes the following; 1. The position held by Ms Viscardi at the time of her termination was one of several Team Leader positions. 2. When she was appointed to the Team Leader position in July 2024, Ms Viscardi was one of six team leaders and in her case was responsible for a team of five and later six behaviour support practitioners.2 The expectation was that she would mentor clinical practice of her subordinates as well as have regular meetings with each about their caseload and clinical approach. She was also responsible for routine supervisory matters such as approval of leave and managing the achievement of budgeted billable hours by each of the assigned therapists. In recognition of the load that this would in turn place on Ms Viscardi, her billable hours would reduce to 20 per week. 3. Late in 2024, National Positive Behaviour Support reviewed its business operating model and formed the view that change was needed to the team structures and role of team leaders. A business case put forward this rationale for change; “Financial decision based on the non-performance of the therapists who weekly are not meeting their billable hours. The team leaders are spending large amounts of administration time that cannot be charged out as billable hours and the result is a 30% decline in the income received by NPBS. Synergy benefits can only be realised if the administration tasks are centralised and the role of team leader abolished. A clinical approach for knowledge transfer and support/mentoring to therapist within the team will provide daily sessions to be booked with Senior Practitioners (formally team leaders) to enable consultation and ongoing professional assistance. External consultancy services will also support the Senior Practitioners going forward with support.”3 (underlining added) 4. National Positive Behaviour Support decided, as a response to its profitability concerns, to remove administrative and mentoring duties from team leaders and to instead return the team leaders to a substantially clinical role, with no change to their salary or management level; “A role Senior Practitioner will be created which is comparable to the team leader role with no change to salary and at the same management level of the role they currently perform as a team leader. KPI’s in the PD will include a 3 hour block will be set aside each week for the therapists to schedule one on one support sessions [2025] FWC 635 3 with any of the available Senior Practitioners, this will remove any of the administrative duties but provide the key upskilling, mentoring and knowledge sharing our therapists require.”4 5. On 2 December 2024, National Positive Behaviour Support commenced discussions with all team leaders affected by the company’s proposal for therapy structure changes. The Applicant submits that in that meeting, incumbents were offered an opportunity to be redeployed into the role of Senior Practitioner, which it describes as an equivalent role. After, on 4 December 2024 there was an individual redeployment meeting held with Ms Viscardi at which she declined the opportunity for redundancy. In a later meeting on 11 December 2024, Ms Viscardi “confirmed that she wanted to take redundancy”.5 [9] Shortly after, Ms Viscardi’s employment was terminated for reason of redundancy. At the time of the hearing of the application, Ms Viscardi had not obtained replacement employment and had not started looking for work.6 APPLICABLE LEGISLATION [10] The applications are made pursuant to s.120 of the Fair Work Act 2009 (the Act), which provides the following; 120 Variation of redundancy pay for other employment or incapacity to pay (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. CONSIDERATION [11] Section 120 of the Act operates when “an employee is entitled to be paid an amount of redundancy pay by the employer because of section 119”. I am satisfied that such is the case, with a finding available to me that Ms Viscardi’s termination of employment came about [2025] FWC 635 4 “because the employer no longer requires the job done by the employee to be done by anyone”, as specified in s.119(1)(a) of the Act. [12] Section 120 then provides for the variation of an entitlement to redundancy pay in either of two circumstances; the first being that the current employer has obtained other acceptable employment for the employee and the second being that the current employer cannot pay the redundancy payment otherwise due to the employee. The second of these alternatives, an inability to pay the redundancy pay, is plainly not operative in this particular matter. [13] Instead, National Positive Behaviour Support relies upon the provision within s.120(1)(b)(i), that it has obtained “other acceptable employment for the employee”. [14] The principles relating to the variation of redundancy pay for reason of an employer obtaining other acceptable employment are now well established. Being employment within its own company the proposed employment of Ms Viscardi as a Senior Practitioner was clearly obtained by National Positive Behaviour Support.7 [15] Ms Viscardi rejects that the Senior Practitioner role was “other acceptable employment” for the purposes of s.120(1)(b)(i). [16] Whether an alternative role is “other acceptable employment” is to be determined objectively, with the onus resting on the employer to establish that such is the case. In order to determine the subject the Commission will “have regard to such matters as pay levels, hours of work, seniority, fringe benefits, workload and speed, job security and other matters (including the location of the employment and travelling time)”.8 [17] The purpose of redundancy pay was discussed in the decision of Datacom Systems Vic Pty Ltd v Rasiq Khan; Siddharth Desai9, which may inform the Commission’s decision in this matter; • “The purpose of the redundancy entitlement conferred by s.119 is primarily to compensate the employee for loss of non-transferrable credits, especially long service leave. • It is not the intention of s.119 to fully compensate the employee in all or even most cases. The specified amounts are manifestly inadequate for that purpose. • The redundancy entitlement in s.119 has no “income maintenance” purpose and is not intended to address the requirement to search for another job and/or to tide over an employee during a period of unemployment albeit that the it should be regarded as having a minor component referable to the inconvenience and hardship associated with redundancy. • To the extent that alternative employment is “obtained” by the outgoing employer, matters referred to Tontine10 (obvious including elements such as the work being of like nature; the location being not unreasonably distant; the pay arrangements complying with award requirements) are relevant in assessing whether that employment is “acceptable” which is in turn relevant in assessing what, if any, reduction is appropriate. [2025] FWC 635 5 [Note that in Tontine, the alternative employment was with the same employer and there was no loss of continuity or non-transferrable credits. Nevertheless, the alternative employment, while assessed as “acceptable” still had material disadvantages that rendered it appropriate to award a portion of the entitlement.] • Where there is no continuity of employment or recognition of long service and other non-transferrable credits that were not paid out by the outgoing employer then the employer should be entitled to the majority of the s.119 entitlement. To the extent that the alternative employment is disadvantageous when compared to the previous employment that will also sound in lesser reduction than might otherwise have been the case.”11 [18] In Spotless Services Australia Limited t/as Alliance Catering12, Deputy President Sams addressed the question of what may be acceptable employment. After reviewing precedent cases, DP Sams provided this guidance as to what may be acceptable employment; • “The test of what constitutes ‘acceptable employment’ is an objective one. It does not mean it must be acceptable to the employee. • ‘Acceptable employment’ is not identical employment, as no two jobs could be exactly the same. • An employee must meaningfully cooperate with the employer in exploring or considering options for alternative positions. • An employee’s prima facie entitlement to redundancy pay may be at risk if the employee refuses a role or position, which is found to be objectively ‘acceptable’. • The acceptance of alternative employment by one or more persons in a group of redundant employees, does not necessarily make the alternative employment ‘acceptable’ for all of them. Each employee’s individual circumstances must be taken into account. • There are a range of factors of varying weight, according to an employee’s particular circumstances, which may be taken into account to assess the acceptability of alternative employment.”13 [19] If satisfied “other acceptable employment” has been obtained I am then required to consider whether the redundancy pay otherwise due to Ms Viscardi should be varied. This consideration is a matter of discretion on my part, since after the threshold eligibility for the making of a s.120 application is determined, any variation to redundancy pay is to an amount the Commission “considers appropriate”. In considering whether the amounts of redundancy pay should be varied, it is appropriate to take account of the following:14 • The statutory definitions of “service” and “continuous service” set out in s.22 of the Act reinforce that where there is a “transfer of employment”, recognition of service with the outgoing employer by the incoming employer would usually disentitle the employee to the statutory redundancy payment; [2025] FWC 635 6 • The purpose of the statutory redundancy entitlement is primarily to compensate the employee for loss of nontransferable credits, especially long service leave; • The statutory redundancy entitlement has no “income maintenance” purpose and is not intended to address job search needs or assist an employee through a period of unemployment. [20] Relevant to my decision are the following matters; • Ms Viscardi worked for National Positive Behaviour Support on a full-time basis, 38 hours per week and was covered by the Health Professionals and Support Services Award 2020. Her employment to date has been for the period mentioned above, 1 year and 7 months. • As Team Leader, Ms Viscardi assumed responsibility for leadership, mentoring and supervision of assigned other employees. Despite the addition of those responsibilities, Ms Viscardi was still expected to undertake a clinical case load. Before being appointed as a Team Leader, she was expected to undertake 25 clinical hours per week,15 which was reduced to 20 hours after she was appointed as Team Leader. The role proposed to her in December 2024 was for her clinical load to increase to 25 hours per week.16 The Senior Practitioner position (being the position proposed for Ms Viscardi in December) refers to the work to be performed in the balance of hours in this way: “Of the remaining 16 non-billable hours, 3 hours per week are allocated for the one-on-one support bookings and meetings where required”17 • While the position descriptions for the Team Leader and Senior Practitioner positions are written quite differently from each other, I am satisfied that a significant purpose of each position is for the undertaking of clinical work. In the case of the Team Leader position, Ms Viscardi was required to do 20 hours clinical work, with significant mentoring and leadership duties in addition. As Senior Practitioner, she would be required to do 25 hours clinical work and some mentoring or support activities. It was also the case that the duties of the Senior Practitioner position as offered were within Ms Viscardi skill and competence; moreover, in moving to the new position she would keep her salary rate. • Ms Viscardi had been in the position held at the time of her termination for less than 6 months. While it may be a perceived step backwards in career progression to lose leadership, mentoring and supervision responsibilities, this is not a case in which Ms Viscardi had spent years in her role. The expected reversion to 25 hours clinical work per week is not onerous and is not demeaning or likely to be seen by others as beneath her. It is also not outside of Ms Viscardi’s skillset. [21] Objectively the proposed Senior Practitioner role was acceptable employment, in that it was work for which Ms Viscardi was qualified. Given that her Team Leader position was redundant, the Senior Practitioner position was one that Ms Viscardi could and should have considered. If she had accepted the new position, the change of most significance would be that the focus of the position was not on leadership, mentoring and supervision of other assigned [2025] FWC 635 7 employees, duties which Ms Viscardi enjoyed and wanted to keep performing; however the absence of those duties, together with the additional clinical hours expectations are not enough to cause the employer’s proposed new position to not be acceptable employment for the purposes of s.120. [22] It follows from my finding, that the proposed Senior Practitioner role was acceptable employment, that I must consider a reduction in redundancy pay. The amount of redundancy pay in question in this case is modest; four weeks. However in light of the purpose of redundancy benefits set out in Datacom, and applying those principles to Ms Viscardi’s redundancy, there was no need for her termination or consideration of redundancy pay at any level, since an objectively acceptable position was offered to her by the Applicant. [23] Acceptance of the Senior Practitioner position would have satisfied Ms Viscardi’s economic needs as she would have continued to receive her same salary from the Applicant, indefinitely if she chose to remain with National Positive Behaviour Support or until she obtained a job more suited to her interests if that is what she wanted to do. Her continuous service would have continued, with the short term benefit of carrying over such personal leave as had been accrued and allowing annual leave to be accrued and taken and eventually, while admittedly a very long time off, allowing accrual of a long service leave benefit. [24] As a result, the redundancy pay otherwise due to Ms Viscardi is reduced to nil. An order to that effect is issued at the same time as this decision.18 COMMISSIONER Appearances: Mr T. Plummer, for the Applicant. Ms N. Viscardi, for the Respondent. Hearing details: 24 January. 2025. Printed by authority of the Commonwealth Government Printer <PR784900> [2025] FWC 635 8 1 Transcript, PN 129 2 Transcript, PN 46, 121. 3 Applicant’s documents, Business Case for Change. 4 Ibid. 5 Application form, page 5 of 7. 6 Transcript, PN 132. 7 See FBIS International Protective Services (Aust) Pty Ltd v MUA and Fair Work Commission [2015] FCAFC 90; 232 FCR 1; 250 IR 476, [18]; Ready Workforce (A Division of Chandler Macleod) Pty Ltd t/a Chandler Macleod v Andrew Lowe & Ors [2022] FWCFB 173, [55], with reference to FBIS International Protective Services (Aust) Pty Ltd v MUA [2015] FCAFC 90; 232 FCR 1; 250 IR 476 at [20] 8 NUW v Tontine Fibres [2007] AIRCFB, [24]; with reference to Australian Chamber of Manufacturers v Derole Nominees Pty Ltd.. 9 [2013] FWC 1327, [23] 10 NUW v Tontine Fibres [2007] AIRCFB. 11 Datacom Systems Vic Pty Ltd v Rasiq Khan; Siddharth Desai [2013] FWC 1327, [23]. 12 [2016] FWC 4505. 13 Ibid, [65]. 14 Datacom Systems Vic Pty Ltd v Rasiq Khan; Siddharth Desai [2013] FWC 1327, [22] – [23]. 15 Transcript, PN 169. 16 Transcript, PN 46. 17 Position description: Senior Practitioner - Proficient Behaviour Support Practitioner. 18 PR784901.