1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Michael Hughes
v
Firequip Pty Ltd
(U2023/5238)
DEPUTY PRESIDENT ROBERTS SYDNEY, 28 AUGUST 2023
Application for relief from unfair dismissal
[1] On 13 June 2023, Michael Hughes (the Applicant) applied to the Fair Work Commission
(Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, having
alleged that he had been unfairly dismissed from his employment with Firequip Pty Ltd (the
Respondent).
[2] The Applicant sought reinstatement and/or compensation in the application as filed. At
the hearing, the claim for reinstatement was not pressed by the Applicant. The Respondent
opposed the application and argued that the Applicant had not been dismissed but rather had
resigned from his employment. Further, the Respondent argued that in the event that the
Commission concluded that the Applicant had been dismissed, the dismissal did not amount to
an unfair dismissal within the meaning of the FW Act and no remedy should follow.
[3] The matter was listed for hearing on 9 August 2023 to determine whether the Applicant
had been dismissed and if so, whether the dismissal was an unfair dismissal.
When can the Commission order a remedy for unfair dismissal?
[4] Section 390 of the FW Act provides, inter alia, that the Commission may order a remedy
for unfair dismissal if:
(a) the Commission is satisfied that the person was protected from unfair dismissal at
the time of being dismissed; and
(b) the person has been unfairly dismissed.
When a person is protected from unfair dismissal
[5] Section 382 of the FW Act sets out the circumstances in which an employee is protected
from unfair dismissal at a particular time. It was not in issue that the Applicant was protected
from unfair dismissal within the meaning of s.382 of the FW Act at the relevant time and I am
satisfied that that is the case here.
[2023] FWC 2144
DECISION
AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwc2144.pdf
[2023] FWC 2144
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[6] Section 385 of the FW Act provides that a person has been unfairly dismissed if the
Commission is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
[7] The matters referred to at points (c) and (d) above were not in issue. Accordingly, the
question of whether the Applicant has been unfairly dismissed will depend firstly on whether
the Commission is satisfied that the Applicant was ‘dismissed’ and if so, whether the dismissal
was harsh, unjust or unreasonable within the meaning of s.385. Before turning to consider these
questions, it is convenient to set out some of the factual background relevant to the proceedings.
Background
[8] The Applicant commenced his employment with the Respondent in August 2022. He
was employed under the terms of the Commercial Sales Award 2020 as a business development
manager. He was originally engaged on a six-month probationary period that ended in February
2023 at which point his ongoing full-time employment was confirmed by the Respondent.
[9] The Respondent is involved in the supply of specialist products to the fire protection
and building industries. It has a manufacturing capability which includes the fabrication of
sprinkler systems for commercial and residential buildings and car parks. The founder and
managing director of the Respondent is Mr. Robert O’Shea (Mr. O’Shea). Mr. O’Shea has
devolved responsibility for the day-to-day management of the Respondent’s business, including
the hiring and termination of employees, to Mr. Wayne Collins (Mr. Collins). Mr. Collins is the
General Manager of the Respondent. He reports to Mr. O’Shea.
[10] On Friday 9 June 2023 the Applicant sent an email to Mr. O’Shea. The email title was
‘Intent to Resign’. The email said:
Good morning Bob,
I hope you are well!
I tried giving you a call earlier.
I just wanted to make contact and in the very least advise you in advance of my intent
to resign at the end of the month.
When Wayne returns next week, I will discuss with him further.
Kind regards,
[11] After the email was sent, the Applicant and Mr. O’Shea spoke briefly by telephone on
the same day.1 Mr. O’Shea forwarded the Applicant’s email to Mr. Collins later that day.
[2023] FWC 2144
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[12] On the morning of Tuesday 13 June 2023, a meeting occurred between the Applicant
and Mr. Collins. The meeting occurred at a local café close to the Respondent’s business
premises. The details of what occurred at that meeting were contested but the outcome was not.
At the end of that meeting the Applicant’s employment relationship with the Respondent had
come to an end.
[13] A determination as to whether the Applicant was dismissed at the meeting of 13 June or
whether he resigned requires a closer examination of the evidence relating to that meeting and
the surrounding circumstances.
The Evidence
[14] The Applicant’s evidence was that he had raised concerns with Mr. O’Shea about Mr.
Collins in February 2023. He said that after this meeting Mr. Collins had become aware of the
discussions the Applicant and Mr. O’Shea and had asked to meet with the Applicant privately.
He said he met with Mr. Collins in February and Mr. Collins unsuccessfully tried to convince
him to resign his employment.2 He said that he did not get along with Mr. Collins and that Mr.
O’Shea was aware of this.
[15] The Applicant said that at the meeting with Mr. Collins on 13 June, after the exchange
of pleasantries, the following discussion occurred:
Collins: “I accept your resignation”
Applicant: “I have not resigned, I have only given and discussed intent”
Collins: Your resignation is accepted effective immediately, hand over your phone now,
where is your laptop and where are you parked”
Applicant: “I have not resigned; you are terminating my employment or in the very least
forcing my resignation”
Collins: “It’s not my money, if the company has to pay to keep you out, the company
will pay to keep you out”3
[16] The Applicant said in cross-examination that the discussion between himself and Mr.
Collins was very repetitive. He said Mr. Collins said a number of times that he accepted the
Applicant’s resignation and that he (the Applicant) kept insisting that he had not given any
resignation. He said that after this exchange back and forth Mr. Collins said ‘you only have to
give one week’s notice’ to which the Applicant restated that he had not resigned. He said that
after that, Mr. Collins demanded that he return his mobile phone, his laptop computer and his
vehicle. The Applicant denied most of what Mr. Collins had to say about the detail of the
conversation on 13 June.
[17] Mr. Collins said he started the conversation on 13 June with a question to the Applicant
as to what was behind his email to Mr. O’Shea of 9 June. He said they then discussed a
complaint by the Applicant that others had been interfering in his role and questioning quotes
[2023] FWC 2144
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that he had given customers. He said that the Applicant then began criticising the Respondent
with words to the effect that ‘it was not the company it used to be’ and that he ‘could not do his
role with this interference.’ Mr. Collins said he took the Applicant’s comments to mean he was
not happy in the role. He said the following exchange then occurred:
Collins: Michael…from what you are saying it is obvious you are not liking the role and
you mention how you are finding it frustrating. Taking this all into consideration your
resignation is a logical decision.
Hughes: It’s only my intent.
Collins: Well ‘intent’ that means you are intending to do something and you have
resigned.4
[18] Mr. Collins said that the Applicant did not say that he was not resigning but kept
referring to his ‘intention to resign.’ He said he then said words to the effect:
Collins: We have spoken about how you are not happy in the role. OK, I get where you
are at and I accept your resignation.
[19] Mr. Collins said the Applicant responded by asking ‘when will this take effect?’ He said
he replied as follows:
‘Look it’s a short working week and you are only required to give one week’s notice. I
cannot see much point in you working through til Friday as today is Tuesday. We can
pay you in lieu of notice.’
[20] Mr. Collins said that after this there was a discussion about the return of company
property. He also said that he (Mr. Collins) did not use the words ‘dismissed’ or ‘you are
terminated’. He said:
It was my belief that when I had stated that I was accepting his resignation and the
Applicant asked ‘when would it take effect’ that he had made his own decision to leave
the company…..The Applicant was making reference to ‘my intent to resign’ and I
sought to clarify that and even pressed him on it by saying ‘well intent means you are
going to do something and you have resigned, yet at no stage did he say ‘I’m
withdrawing my intention’ or ‘I’m withdrawing my resignation’. I was clear that I had
accepted his resignation, yet he never said to me ‘I’m not resigning’.
Had the Applicant told me he was withdrawing his resignation or that he was not
resigning, then I would not have accepted the resignation.5
[21] In cross-examination Mr. Collins gave the following evidence:
So, if the conversation was, in fact – you know – in truth the question that I am going to
be putting to you is if the conversation was cordial and dignified why would you not
have requested me to have officially confirmed my resignation in writing?---Deputy
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President, I believe that Mr Hughes had already done so regarding his intent to resign
through the email that he sent to Mr O'Shea.6
And
Yet you didn't feel that was necessary for my purported resignation?---Deputy
President, the purpose of the meeting was to establish and get clarity as to why Mr
Hughes was resigning. So, in effect, it was an exit interview.7
[22] In response to questions from the Commission, Mr. Collins also gave the following
evidence:
Yes. But what's the answer to my question? About whether it occurred to you or not that
you should try to convince him not to resign?---There was previous conversations
during the sales meetings where Mr Hughes – a lot of what he said on that morning was
an echo of things that he had raised in sales meetings of whether they were in person or
via video link. And that had been sustained over a period of time. And I formed the view
that Mr Hughes was at a point where he did not see himself working at Firequip any
longer.
And you were content to let him have that view?---Mm.
And you didn't try to convince him that Firequip was still the place for him?---I didn't –
I didn't specifically ask that question, no.8
And
And what did you make of the part of Mr Hughes's email to Mr O'Shea on the 9th?
Where he says he intends to resign at the end of the month. What did you make of that
part of his email?---I guess the thing that stuck out for me, Deputy President, was the
timeframe that Mr Hughes was putting on in that email. And it, I guess, again to me that
sort of reinforced his wish to resign his position, the fact that he had put a timeframe on
it prior to any discussion that I had with him.
But he was reasonably clear in his email, wasn't he, that his intention to resign was that
his resignation would take place at the end of the month?---That's correct, Deputy
President.
And you, at some point, during the meeting made an assessment that it might be better
if he finished before the end of the month?---That's correct.
And part of the reason you made that assessment was because you were concerned about
confidential information and sales information and the like and the competitors and
things of that nature?---That's correct. Typically, in a sales situation, because of the
sensitivity and access to pricing, customers, et cetera – and my genuine concerns that
Mr Hughes may be seeking employment with a competitor I saw that it was best to go
with the payment in lieu of notice.
And you made that decision during the course of the meeting on the 13th?---I did. Yes.9
[2023] FWC 2144
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[23] After the meeting on 13 June 2023 and later that day, an email was sent from Mr. Collins
to the Applicant. It said:
Re: Resignation Acceptance
This letter is to acknowledge your email to Bob O’Shea, Firequip Managing Director,
on Friday 9th June 2023 in which you stated your intention to resign your position with
the company and that you indicated that your resignation would take effect at the end
of June 2023.
Following our meeting this morning I confirm acceptance of your intent to resign and
the terms of the Commercial Sales Modern Award require that you give one weeks-
notice on resignation. As such, your employment will cease with Firequip on Friday
23rd June 2023 and I confirm that you will not be required to work during this notice
period. Your final pay will be processed in this week’s pay-run and will include
outstanding wages up to, and including, Friday 23rd June, plus any accrued annual
leave balance and leave loading.
It is noted that you are currently in possession of a company vehicle including toll tag
and fuel card, laptop and company credit card and we will need to arrange for the
return of this property by close of business 14th June 2023, given that you are not
required to work your notice period. You will also be required to return any company
documents that you have in your possession whether they be hard copies or
electronically stored. If you could please make contact so that we can make these
arrangements.
I respectfully draw to your attention to the fact that you are no longer authorised to
access Firequip’s information systems and your account has been disabled.
Consideration
[24] Section 386 of the FW Act defines the circumstances in which a person is taken to have
been dismissed for the purposes of Part 3-2 of the Act. It provides, relevantly:
386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on
the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so
because of conduct, or a course of conduct, engaged in by his or her employer.
[2023] FWC 2144
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[25] A Full Bench of the Commission considered the two limbs of s.386(1) in the matter of
Bupa Aged Care Australia Pty Ltd v. Tavassoli.10 The Bench summarized the application of the
subsections as follows:
(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where,
although the employee has given an ostensible communication of a resignation, the
resignation is not legally effective because it was expressed in the “heat of the moment”
or when the employee was in a state of emotional stress or mental confusion such that
the employee could not reasonably be understood to be conveying a real intention to
resign. Although “jostling” by the employer may contribute to the resignation being
legally ineffective, employer conduct is not a necessary element. In this situation if the
employer simply treats the ostensible resignation as terminating the employment rather
than clarifying or confirming with the employee after a reasonable time that the
employee genuinely intended to resign, this may be characterised as a termination of
the employment at the initiative of the employer.
(2) A resignation that is “forced” by conduct or a course of conduct on the part of the
employer will be a dismissal within the second limb of the definition in s.386(1)(b). The
test to be applied here is whether the employer engaged in the conduct with the intention
of bringing the employment to an end or whether termination of the employment was
the probably result of the employer’s conduct such that the employee had no effective
or real choice but to resign. Unlike the situation in (1), the requisite employer conduct
is the essential element.11
[26] I do not believe the issue of forced resignation as contemplated s.386(1)(b) arises in this
matter. The evidence does not support a finding that the Applicant was forced to resign on 13
June because of conduct engaged in by the employer. I am satisfied that s.386(1)(b) has no
application here.
[27] The circumstances in which s.386(1)(a) is engaged are not confined to the ‘forced
resignation’ scenario described in Bupa and referred to above. In City of Sydney RSL &
Community Club Ltd v Balgowan12 the Full Bench described the operation of s 386(1)(a) as
follows:
[11] Section 386(1)(a) seems plainly to be intended to capture the case law determining
the meaning of termination (of the employment relationship) at the initiative of the
employer. In Mohazab the Court considered that the expression “termination at the
initiative of the employer” was:
“. . . a reference to a termination that is brought about by an employer and which
is not agreed to by the employee. Consistent with the ordinary meaning of the
expression in the Convention, a termination of employment at the initiative of
the employer may be treated as a termination in which the action of the employer
is the principal contributing factor which leads to the termination of the
employment relationship.’’”13
[28] The expression ‘employment … has been terminated’ in s.386(1)(a) means termination
of the employment relationship and/or termination of the contract of employment.’14
[2023] FWC 2144
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Termination ‘on the employer’s initiative’ is a termination that is brought about by an employer
and which is not agreed to by the employee.15 There must be action by the employer that either
intends to bring the relationship to an end or has that probable result.16 If an act of the employer
results ‘directly or consequentially in the termination’17 the termination of employment will
likely be ‘on the employer’s initiative’. All of the circumstances are to be considered in this
assessment. In Mohazab18 the Court also referred to termination at the employer’s initiative as
being action of the employer which, had it not been taken, the employee would have remained
in the employment relationship.19
[29] In this case, by his email on 9 June 2023 the Applicant clearly foreshadowed his
intention to resign at the end of the month of June. I am satisfied on the evidence that he did
not resile from that position at the meeting with Mr. Collins on 13 June. Rather, the evidence
shows that Mr. Collins decided during the meeting on 13 June that the employment of the
Applicant should come to an end on that date, as opposed to 30 June or thereabouts. It seems
that Mr. Collins had come to a view by 13 June that the Applicant’s email of 9 June was in fact
a resignation which was open for him to accept at any time prior to the end of the month. That
view was mistaken. By 13 June the Applicant had done no more than express his intention to
resign at the end of the month. The evidence does not support a conclusion that the Applicant
expressed any other intention at that meeting. Mr. Collins acted on his mistaken belief by
terminating the employment of the Applicant at the meeting on 13 June. The termination took
effect on that day.
[30] In Marks v. Melbourne Health20 Deputy President Ives concluded that an email by an
employee of 24 October 2010 was, at its highest, ‘an expression of future intent to resign at an
indeterminate date in early 2011.’ The employer’s decision to ‘process the (employee’s)
resignation’ by relying on that email was therefore held to be a termination at the initiative of
the employer.
[31] In Harvey v. Valentine Hydrotherapy Pools Inc21 Deputy President Saunders came to a
similar conclusion in relation to an employee’s text message indicating the employee was going
to hand in his notice at a future time. The Deputy President there said that the conduct and
communications of the employee could not have led a reasonable person to understand that the
employee had resigned. He went on to observe:
There is a material difference between saying, on the one hand, “I am resigning” or “I
resign” and, on the other hand, “I will hand in my notice”. The former either has
immediate effect or is notification of a decision which has been made, and the latter is
a statement of intention as to the future.
[32] In my view the Applicant did not voluntarily leave his employment on 13 June 2023.
He wanted to remain there until at least the end of the month. The actions of Mr. Collins on 13
June 2023 were the principal contributing factor which resulted in the termination of the
Applicant’s employment. Those actions were the conversation that took place on 13 June and
letter sent to the Applicant on the same date. It is unnecessary for me to conclude at this point
whether the actions were driven by a desire on Mr. Collins’ part just to see the end of the
Applicant’s employment or legitimate business reasons relating to protecting the competitive
position of the Respondent, or some combination of both. The point is that the action on the
part of the Respondent intended to bring the employment relationship to an end and it did so.
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[33] For these reasons, I find that on 13 June 2023 the Applicant was dismissed by the
Respondent within the meaning of s 386(1)(a) of the Act.
Was the dismissal harsh, unjust or unreasonable?
[34] Section 387 of the FW Act provides that, in considering whether it is satisfied that a
dismissal was harsh, unjust or unreasonable, the Commission must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity
or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the
capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support
person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person – whether the
person had been warned about that unsatisfactory performance before the dismissal;
and
(f) the degree to which the size of the employer’s enterprise would be likely to impact
on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management
specialists or expertise in the enterprise would be likely to impact on the procedures
followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
[35] I set out my consideration of each of these points below.
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?
[36] The Respondent put its case primarily on the basis that the Applicant had not been
dismissed. It was not seriously contended that in the event that the Commission concluded that
the Applicant had been dismissed, that the Respondent had a valid reason relating to the
capacity or conduct of the Applicant for any dismissal. Although there was some evidence that
the Applicant and Mr. Collins did not get along, Mr. Collins disavowed the suggestion that his
actions on 13 June were motivated by performance issues with the Applicant.
[37] I am satisfied on the evidence that Respondent did not have a valid reason for the
Applicant’s dismissal related to his capacity or conduct. This conclusion weighs in favour of
the Applicant’s case that he was unfairly dismissed.
[2023] FWC 2144
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Was the Applicant notified of the valid reason?
[38] Contextually, the reference to “that reason” is the valid reason found to exist under
s.387(a).22 Because there was no valid reason for the termination of the Applicant’s
employment related to his capacity or conduct, s 387(b) is a neutral factor in relation to the
question of whether the dismissal was harsh, unjust or unreasonable.
Was the Applicant given an opportunity to respond to any valid reason related to their
capacity or conduct?
[39] This consideration depends on the existence of a valid reason. As there was no such
reason, it is a neutral factor here.
Did the Respondent unreasonably refuse to allow the Applicant to have a support person
present to assist at discussions relating to the dismissal?
[40] There was no unreasonable refusal to allow the Applicant to have a support person
present to assist at any discussions relating to his dismissal. Accordingly, s 387(d) is a neutral
factor in relation to the question of whether the dismissal was harsh, unjust or unreasonable.
Was the Applicant warned about unsatisfactory performance before the dismissal?
[41] As the dismissal did not relate to unsatisfactory performance, this factor is not relevant
to the present circumstances.
To what degree would the size of the Respondent’s enterprise/ absence of dedicated human
resource management specialists or expertise in the Respondent’s enterprise be likely to
impact on the procedures followed in effecting the dismissal?
[42] The Respondent employed approximately 30 people at the time the Applicant’s
employment was terminated. In my view an employer of this size can reasonably be expected
to appreciate that dismissals can involve some complexity and a need to be handled carefully.
It should have been apparent to the Respondent that the company was not dealing with a
straightforward resignation and that the termination of employment on 13 June was being
carried out against the will of the Applicant. The procedure here, even accepting that it was
based on a misunderstanding on Mr. Collins’ part, was deficient and perfunctory. It converted
a discussion about a future departure into termination with immediate effect. It did not
adequately take into account the situation of the Applicant and his stated intention to continue
in employment until the end of the month. Given the size of the Respondent’s business, these
factors weigh in favour of a conclusion that the dismissal was harsh, unjust or unreasonable.
[43] There was no evidence that the Respondent had dedicated internal human resources
expertise. There was some limited evidence that in the past, external advisors had been brought
in to assist with employee departures. This did not occur here. The process would undoubtedly
have benefited from expertise which may have assisted in distinguishing between a resignation
and notice of intention to resign, or at least giving further consideration to the position that was
being put by the Applicant that he wanted to continue in his employment until the end of the
month. Had that expertise been available the situation may well have been avoided. The absence
[2023] FWC 2144
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of specialist expertise here has had a negative impact on the procedures that were followed.
This may partially explain, without necessarily excusing, shortcomings in the process. It is
nonetheless part of the context in which the dismissal occurred and I take this into account in
the overall assessment.
What other matters are relevant?
[44] Section 387(h) requires the Commission to take into account any other matters that the
Commission considers relevant. It is necessary to consider the broader context in which the
dismissal of the Applicant occurred to form an overall view as to whether the termination was
harsh, unjust or unreasonable.
[45] The Applicant was employed for a period of some 10 months. He had successfully
completed his probationary period in February 2023 although the letter confirming this is
qualified by references to the need for him to engage with colleagues in a more constructive
and collaborative manner. Whilst he was clearly dissatisfied in the workplace, there was no
suggestion that his overall performance was substandard. The termination of the Applicant’s
employment clearly came as shock to him as was evidenced by his correspondence to Mr.
O’Shea immediately after it had taken place. It was carried out in haste and with immediate
effect, albeit with payment in lieu of notice. Overall, these factors weigh in favour of a
conclusion that the dismissal was harsh, unjust or unreasonable.
Conclusion
[46] Having considered each of the matters specified in section 387 of the FW Act, I am
satisfied that the dismissal of the Applicants was harsh and unreasonable. I am therefore
satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the FW
Act.
Remedy
[47] Having found the Applicant was protected from unfair dismissal, and that his dismissal
was harsh and unreasonable, it is necessary to consider what, if any, remedy should be granted
to him. In considering an appropriate remedy in a case of unfair dismissal, regard must be had
to the legislative object set out in s.381 of the FW Act. This includes an emphasis on the remedy
of reinstatement23 and on ensuring that a “fair go all round” is accorded to both the employer
and employee concerned.24
[48] The Applicant did not seek to be reinstated to employment with the Respondent. In any
event, it would be inappropriate to reinstate the Applicant in the circumstances. The Applicant
was dissatisfied in his previous position and had indicated his clear intention to leave even
before the termination occurred. There was no suggestion that a viable employment relationship
could or should be re-established. I am satisfied that reinstatement of the Applicant is
inappropriate.25
[49] Section 390(3)(b) of the Act provides the Commission may only issue an order for
compensation if it is appropriate in all the circumstances of the case. Orders for compensation
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are to compensate an unfairly dismissed employee for losses reasonably attributable to the
unfair dismissal. I consider it appropriate to make an order for compensation in this case.
[50] I am required by s 392(2) of the Act to take into account all the circumstances of the
case including the specific matters identified in paragraphs (a) to (g) of that subsection.
[51] In determining the amount of compensation, I adopt the methodology for assessing
compensation established in Sprigg v Paul Licensed Festival Supermarket.26 The approach to
calculating compensation in accordance Sprigg and the authorities which have followed it is as
follows:
Step 1: Estimate the remuneration the employee would have received, or have been
likely to have received, if the employer had not terminated the employment
(remuneration lost).
Step 2: Deduct monies earned since termination.
Step 3: Discount the remaining amount for contingencies.
Step 4: Calculate the impact of taxation to ensure that the employee receives the actual
amount he or she would have received if they had continued in their employment.
Step 5: Apply the legislative cap on compensation.
Remuneration the Applicant would have received, or would have been likely to receive, if
he had not been dismissed (s 392(2)(c))
[52] In the course of final submissions, the Applicant accepted that the likelihood was that
either on or before 30 June 2023 or shortly thereafter, he would have resigned his employment
with the Respondent. I accept that to be the case. I am satisfied that the Applicant’s employment
would not have extended beyond 30 June 2023. The evidence was that he was paid one week’s
wages in lieu of notice, which would involve payment up to and including 20 June 2023. On
the basis of the Applicant’s earnings at the time of his dismissal, the amount he would have
received under this heading is 60.8 hours at $55.51 per hour or $3,375 (gross) together with
superannuation contributions of 10.5%. I am satisfied that this is the amount the Applicant
would have received, or would have been likely to receive, if he had not been dismissed.
Remuneration earned (s 392(2)(e)) and income reasonably likely to be earned (s 392(2)(f))
[53] The Applicant obtained comparable employment with a new employer by 22 June 2023.
The position commenced on 17 July 2023. Given my conclusion that the Applicant’s
employment would not have continued beyond 30 June 2023 it is not necessary to take account
of any earnings beyond that date. There was no evidence that the Applicant had earned any
income between the date of his dismissal and 30 June 2023. No adjustment is required under
this heading.
Viability (s 392(2)(a))
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[54] No submission was made on behalf of the Respondent that any particular amount of
compensation would affect the viability of the Respondent’s enterprise. I do not regard it as
necessary to make an adjustment under this heading.
Length of service (s 392(2)(b))
[55] My view is that the Applicant’s period of service with the Respondent, although
relatively brief, does not justify any adjustment to the amount of compensation.
Mitigation efforts (s 392(2)(d))
[56] The evidence was that the Applicant made reasonable efforts to obtain alternative
employment following his dismissal. By 22 June he had obtained alternative employment which
was to commence on 17 July 2023. Since the Applicant’s loss is only referrable to the period
from his dismissal until 30 June 2023, I consider that he acted reasonably to mitigate the loss
suffered by him because of the dismissal and I do not consider it appropriate to reduce the
compensation on this account.
Any other relevant matter (s 392(2)(g))
[57] It is necessary to consider whether to discount the remaining amount ($3,375.00) for
“contingencies”. This step is a means of taking into account the possibility that the occurrence
of contingencies might have brought about some change in earning capacity or earnings.
[58] The discount for contingencies should only be applied in respect to an “anticipated
period of employment” that is not actually known, that is a period that is prospective to the date
of the decision. Here the anticipated period of employment has passed and therefore it is not
appropriate to make deductions on account of contingencies.
[59] Save for the matters referred to in this decision, my view is that there are no other matters
which I consider relevant to the task of determining an amount for the purposes of an order
under s.392(1) of the Act.
[60] Misconduct (s.392(3)) is not relevant here and there is no basis upon which to reduce
the amount of compensation by reference to s.392(5). I have considered the impact of taxation
and am of the view that the amount referred to as a gross amount should be subject to the usual
taxation withholdings as if it were being paid as ordinary wages in the relevant period.
Conclusion on Compensation
[61] In my view, the application of the Sprigg formula does not, in this case, yield an amount
that is clearly excessive or clearly inadequate. In that case there is no basis for me to reassess
the assumptions made in reaching the amount referred to below.
[62] A remedy of compensation in the sum of $3,375.00 (less taxation as required by law)
together with superannuation contributions at the rate of 10.5% in favour of the Applicant is
appropriate in the circumstances of this case. An order to that effect will accompany this
decision.
THE FAIR WORKS LUSTRAL AMISSION THE SE
[2023] FWC 2144
14
DEPUTY PRESIDENT
Appearances:
Mr Michael Hughes, Applicant.
Mr Anthony Powter, Australian Industry Group, for the Respondent.
Hearing details:
In-person in Sydney at 10:00am AEST on Wednesday, 9 August 2023
Printed by authority of the Commonwealth Government Printer
PR765577
1 Transcript PN 559; Exhibit R7, paragraph 9.
2 Transcript PN 184.
3 Jurisdictional Objection Submissions, Hearing Book page 47.
4 Exhibit R9, paragraph 20.
5 Ibid paragraphs 24 and 25.
6 Transcript PN 875.
7 Transcript PN 926.
8 Transcript PN 968-970.
9 Transcript PN 973-978.
10 (2017) 271 IR 245.
11 Ibid at [47].
12 (2018) 273 IR 126,129-130.
13 See also Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162 (‘Khayam’).
14 NSW Trains v. James [2022] FWCFB 55 at paragraph [45].
15 Khayam (n 14).
16 Barkla v G4S Custodial Services Pty Ltd [2011] FWAFB 3769.
17 Khayam (n 14) [75].
18 Mohazab v. Dick Smith Electronics Pty Ltd (No 2.) [1995] 62 IR 200, 205.
19 Ibid.
20 [2011] FWC 4024
21 [2021] FWC 3373.
22 Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb5162.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2011fwafb3769.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2011fwc4024.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwc3373.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb6429.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb533.htm
[2023] FWC 2144
15
23 s 381(1)(c).
24 s 381(2).
25 s 390(3)(a).
26 (1998) 88 IR 21
