1
Fair Work Act 2009
s.394—Unfair dismissal
Yasmin Zayat
v
O’Malley’s Operations Pty Limited
(U2023/4814)
COMMISSIONER MATHESON SYDNEY, 19 SEPTEMBER 2023
Application for unfair dismissal remedy – Respondent failed to participate in proceedings –
Applicant unfairly dismissed – compensation ordered
[1] On 1 June 2023, Ms Yasmin Zayat (Applicant) made an application to the Fair Work
Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a
remedy, alleging that she had been unfairly dismissed from her employment with O’Malley’s
Operations Pty Limited (Respondent). The Applicant seeks financial compensation.
When can the Commission order a remedy for unfair dismissal?
[2] Section 390 of the FW Act provides that the Commission may order a remedy if:
(a) the Commission is satisfied that the Applicant was protected from unfair dismissal
at the time of being dismissed; and
(b) the Applicant has been unfairly dismissed.
[3] Both limbs must be satisfied. I am therefore required to consider whether the Applicant
was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the
Applicant was so protected, whether the Applicant has been unfairly dismissed.
When is a person protected from unfair dismissal?
[4] Section 382 of the FW Act provides that a person is protected from unfair dismissal if,
at the time of being dismissed:
(a) the person is an employee who has completed a period of employment with his or
her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
[2023] FWC 2413
DECISION
AUSTRALIA FairWork Commission
[2023] FWC 2413
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(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if
any) worked out in relation to the person in accordance with the regulations,
is less than the high income threshold.
When has a person been unfairly dismissed?
[5] 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.
Background
[6] The Applicant says:
• she commenced employment as a Bar/Gaming Attendant for the Respondent on a part
time basis on 21 October 2022 at the Royal Hotel Granville. During the hearing the
Applicant stated that she was interviewed for this role by Sarkis Achamar who she
understands to be second in charge of the venue;
• on 15 May 2023 she presented for her shift and was greeted by Riley Panetta-Sleiman
of the Respondent who advised her she was being dismissed because the Respondent
needed someone to work full time;
• this happened after notifying an employee of the Respondent about her pregnancy on 5
May 2023 and after management becoming aware of the pregnancy on 8 May 2023.
[7] In her Form F2 the Applicant provided contact details for Riley Panetta-Sleiman of the
Respondent who she says is the person who dismissed her. During the hearing the Applicant
indicated that she understands this person to be the son of the owner of the Respondent’s
business.
Respondent’s non-participation in the proceedings
[8] Despite multiple attempts to engage with the Respondent and seek a response to the
application, the Respondent has failed to participate in the proceedings.
[9] On 7 June 2023 correspondence was sent by email to Riley Panetta-Sleiman of the
Respondent attaching the application documents and requesting a response to the application
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by 14 June 2023. The correspondence also advised that the matter was listed for conciliation by
the Commission on 7 June 2023, with the conciliation scheduled for 4 July 2023.
[10] Having not received a response to the application, on 29 June 2023 the Commission
called Riley Panetta-Sleiman of the Respondent who advised that he had not received the
correspondence of 7 June 2023 and that the email the correspondence was sent to was no longer
used. Alternative email contact details were provided by Riley Panetta-Sleiman.
[11] On 29 June 2023 the Commission sent the correspondence of 7 June 2023 and attached
documents to the alternative email provided by Riley Panetta-Sleiman and received an
‘undeliverable’ message indicating that the email address was unknown. The Commission
attempted to contact the Respondent to confirm the email address that had been provided
however the call was not answered. Consequently, the Commission sent the relevant
documentation to the email address identified on the termination letter the Applicant had filed
with her application.
[12] On 4 July 2023 the Applicant filed a copy of an email that appeared to have been sent
to her on 19 May 2023 attaching the termination letter and which came from the email of Riley
Panetta-Sleiman, Operations Manager for the Respondent. This is the email that Riley Panetta-
Sleiman of the Respondent said was no longer in use when the Commission contacted him on
29 June 2023.
[13] On 4 July 2023 the Commission telephoned Riley Panetta-Sleiman of the Respondent
to commence the conciliation and Riley Panetta-Sleiman advised he did not have the authority
to deal with the matter and had no knowledge of the matter. Riley Panetta-Sleiman provided an
email that the Commission had already used to send correspondence to and said he could not
help further. As such, the conciliation could not proceed.
[14] On 10 July 2023 the matter was moved to my Chambers and between 10 July 2023 and
11 July 2023 my Chambers made three calls to Riley Panetta-Sleiman which were unanswered.
A voicemail was left requesting a call back on each occasion.
[15] Having been unsuccessful in contacting Riley Panetta-Sleiman, on 13 July 2023 my
Chambers called the business premises for the Royal Hotel Granville based on contact details
it listed on the internet. A person called ‘George’ answered and my Chambers asked to speak
to Mustafa Zadch. This person’s name appears on the termination letter and a company search
reveals this person to be a Director of the Respondent. George advised that Mustafa Zadch was
not in yet, would be in at around 12pm and suggested that the Commission call back then.
[16] Following the conversation with ‘George’ on 13 July 2023, my Chambers called the
business premises for the Royal Hotel Granville back at around 12.30pm and spoke to a person
by the name of ‘Sarkis’ who said he was one of the managers at the Royal Hotel Granville. The
Commission asked to speak to Mustafa Zadch and was advised that nobody worked there with
that name. Sarkis advised he would pass my Chambers’ contact details on to ‘head office’ and
ask them to make contact. The contact details for my Chambers were provided to Sarkis. I note
that the Applicant indicated during the hearing that a person by the first name of ‘Sarkis’ was
second in charge of the venue and interviewed her for her position.
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[17] Having failed to hear from the Respondent, on 17 July 2023 my Chambers attempted to
contact Riley Panetta-Sleiman again. When the phone was unanswered a voicemail was left
asking Riley Panetta-Sleiman to return the call.
[18] After Riley Panetta-Sleiman did not answer the call from my Chambers, on 17 July 2023
my Chambers again contacted the business premises for the Royal Hotel Granville and spoke
to ‘Benita’ who advised that neither Sarkis nor Riley were available to speak to. My Chambers
asked Benita if she had contact details for head office. Benita said she would try and find an
email address and requested a call back in 5 minutes. When my Chambers called Benita back
she advised she had messaged Riley and took down contact details for my Chambers. My
Chambers advised that the matter was important and requested that Riley Panetta-Sleiman make
contact as a matter of priority.
[19] Having failed to hear from the Respondent, on 19 July 2023 my Chambers called Riley
Panetta-Sleiman who did not answer the call. Having failed to speak to Riley Panetta-Sleiman
my Chambers again contacted the business premises for the Royal Hotel Granville and spoke
to ‘Sandra’ and advised that my Chambers was calling in relation to a matter before the Fair
Work Commission. Sandra advised that she would see if Riley was in and said that he was the
business owner. Sandra then advised my Chambers that Riley was not in and provided a contact
email that the Commission had already sent correspondence to. Sandra advised that the
managers were likely to check this email. My Chambers again attempted to contact Riley
Panetta-Sleiman who did not answer the phone.
[20] On 19 July 2023 my Chambers issued a notice of listing for a case management hearing
to be held on 25 July 2023. The notice of listing was sent to the contact email for the Respondent
as provided by both Sandra and Riley Panetta-Sleiman as well as the email that the Applicant
says the termination letter was sent from. On 19 July 2023 the notice of listing was also posted
to the business address of the Royal Hotel Granville as listed on the application and the PO Box
address listed in the termination letter filed with the Applicant’s materials (Termination Letter).
The notice of listing was delivered to the PO Box address on 20 July 2023. The notice of listing
posted to the business address listed on the application was returned to sender.
[21] The Respondent did not appear at the mention and directions hearing on 25 July 2023
and my Chambers attempted to contact Riley Panetta-Sleiman. The phone was not answered,
and a message was left requesting that Riley Panetta-Sleiman call Chambers back. My
Chambers then contacted the business premises of the Royal Hotel Granville and spoke to
Sandra. When my Chambers asked to speak to Riley Panetta-Sleiman they were advised that
Riley Panetta-Sleiman was not in and Riley Panetta-Sleiman was the owner. The person who
answered the call requested a call back in 15 minutes. My Chambers called back as requested
and spoke to Sarkis who advised he had sent my Chambers’ details to head office. Sarkis
provided an email for the Commission to contact and which the Commission had already been
sending correspondence to as well as another email address.
[22] Having failed to engage the Respondent in a case management hearing, on 25 July 2023
directions for the hearing and filing of submissions were set down and a notice of listing for
hearing was issued. The directions and notice of listing were sent to all three email addresses
for the Respondent as provided by its staff. The directions and notice of listing were also posted
to the business address of the Royal Hotel Granville as listed on the application, the PO Box
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address listed in the Termination Letter and an address for the Royal Hotel Granville identified
via an online search. The directions and notice of listing were delivered to the address listed on
the application, the address identified via an online search and the PO Box address listed in the
Termination Letter on 26 July 2023.
[23] The Applicant filed materials in accordance with these directions. On 3 August 2023,
my Chambers sent the directions and notice of listing to another PO Box in Granville identified
on the separation certificate filed by the Applicant. The directions and notice of listing were
delivered to the PO Box identified on the separation certificate on 7 August 2023. The
Applicant’s materials were also sent to all three email addresses for the Respondent, as provided
by its staff, on 4 August 2023.
[24] On 8 August 2023 my Chambers again contacted the business premises of the Royal
Hotel Granville and spoke to Sandra requesting to speak to whoever was in charge. My
Chambers was advised that this was Riley who is usually there in the morning. My Chambers
left a message requesting to be called back, noting the call was in relation to legal proceedings
and it was important that contact be made urgently. A further call was made to the Royal Hotel
Granville on 9 August 2023 however Riley Panetta-Sleiman did not return the Commission’s
call.
[25] The Respondent did not file materials in accordance with the directions and on 23
August 2023 my Chambers emailed all known email addresses for the Respondent as provided
by its staff seeking to know whether it intended to file materials and seeking reasons for non-
compliance with the directions by 25 August 2023.The parties were advised that if no response
was received the matter may be determined based on the materials before the Commission. My
Chambers received a read receipt from one of the known email addresses for the Respondent
in response to the email sent on 23 August 2023.
[26] The Respondent did not respond and did not attend the hearing on 31 August 2023 as
directed. The Applicant did attend in accordance with the directions.
[27] In the circumstances of this matter, I am satisfied that all reasonable attempts have been
made to contact the Respondent for a response to the application and to secure its participation
in the proceedings, that the Respondent is aware of the matter, has received correspondence
about it and has simply failed to engage. In particular, it is apparent to me that Riley Panetta-
Sleiman of the Respondent, who was actively involved in the dismissal of the Applicant and
holds a management role, has been evasive in response to the Commission’s attempts to engage
the Respondent about the matter. On 11 September 2023 I again emailed the parties and advised
that if no satisfactory response was provided by the Respondent regarding its non-participation
by 14 September 2023 the matter would be determined based on the material before the
Commission. No response or explanation was received.
[28] In these circumstances I am left with no option but to determine the application based
on the Applicant’s account of events and uncontested material before the Commission. These
materials consist of:
• the unfair dismissal application made on 1 June 2023 (Form F2);
[2023] FWC 2413
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• a letter that was attached to the Form F2 dated 15 May 2023 and which appears to be a
termination letter;
• the ‘Applicant’s outline of argument: merits’ filed with the Commission on 3 August
2023 (Outline of Argument);
• an email to the Commission on 4 July 2023 forwarding an email sent to the Applicant
on 19 May 2023 from Riley Panetta-Sleiman, Operations Manager, and which attaches
a copy of the Termination Letter;
• a Centrelink Employment Separation Certificate dated 15 May 2023 (Employment
Separation Certificate);
• a ‘Confirmation of Employment’ letter dated 13 December 2022 which appears to have
been issued by Mustafa Zadch (Confirmation of Employment Letter);
• a copy of a pay slip dated 25 May 2023 for the period between 15 May 2023 and 21
May 2023 (Final Pay Slip)
• the Applicant’s oral statements made during the hearing; and
• the Applicant’s payslips filed with the Commission on 11 September 2023.
Has the Applicant been dismissed?
[29] A threshold issue to determine is whether the Applicant has been dismissed from her
employment.
[30] Section 386(1) of the FW Act provides that the Applicant has been dismissed if:
(a) the Applicant’s employment with the Respondent has been terminated on the
Respondent’s initiative; or
(b) the Applicant has resigned from their employment but was forced to do so because
of conduct, or a course of conduct, engaged in by the Respondent.
[31] Section 386(2) of the FW Act sets out circumstances where an employee has not been
dismissed, none of which are presently relevant.
[32] In her Form F2 the Applicant states that she told management she was pregnant on 8
May 2023 and on 15 May 2023 was dismissed. In her Outline of Argument, the Applicant
submits that she was both notified of her dismissal and that the dismissal took effect on 15 May
2023. The Applicant says she showed up for her shift at 12pm on 15 May 2023 where she
greeted Riley Panetta-Sleiman. The Applicant says that Riley Panetta-Sleiman asked her to take
a seat and let her know she was being dismissed due to a need to hire someone full time.
[33] Attached to the Form F2 is an unsigned termination letter dated 15 May 2023 on the
letterhead of O’Malley’s Operations Pty Limited (Termination Letter). The Termination Letter
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is addressed to the Applicant and appears to be from ‘Mustafa Zadch’, identified in the letter as
a ‘Manager’, and states:
“Termination of your employment
I am writing to you about the termination of your employment with The Royal Hotel
Granville
Your employment will end immediately (15/05/2023). You will be paid your accrued
entitlements and any outstanding pay, up to and including your last day of employment”.
[34] On 4 July 2023, the Applicant also emailed the Commission a copy of an email sent to
her on 19 May 2023 from Riley Panetta-Sleiman, Operations Manager, and which attaches a
copy of the Termination Letter.
[35] While the Employment Separation Certificate filed by the Applicant suggests that the
Applicant was dismissed on 12 May 2023, this appears to be an administrative error as it is
inconsistent with the date on the Termination Letter and the Applicant’s account of events. On
the basis of the materials before the Commission I find that the Applicant’s employment with
the Respondent terminated at the initiative of the Respondent on 15 May 2023.
[36] I am therefore satisfied that the Applicant has been dismissed within the meaning of
s.385 of the FW Act.
Initial matters
[37] Under section 396 of the FW Act, the Commission is obliged to decide the following
matters before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.
Was the application made within the period required?
[38] Section 394(2) requires an application to be made within 21 days after the dismissal
took effect.
[39] I have earlier found that the Applicant was dismissed from her employment on 15 May
2023. The Applicant made the application on 1 June 2023. I am therefore satisfied that the
application was made within the period required in subsection 394(2).
Was the Applicant protected from unfair dismissal at the time of dismissal?
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[40] I have set out above when a person is protected from unfair dismissal.
Minimum employment period
[41] In her Form F2 the Applicant estimates that the Respondent’s business size is between
15 and 49 employees. During the hearing the Applicant stated her belief that the Respondent
employs 15 employees in the Applicant’s former workplace and the Applicant also indicated
that the Respondent’s owner has other businesses or venues including two venues known as
‘The Butcher’s Block’ and pharmacies. In her Outline of Argument the Applicant states that in
December 2022 she requested a letter of employment from Riley Panetta-Sleiman for a home
loan application and that a letter was provided by Mustafa Zadch. That Confirmation of
Employment Letter was filed with the Applicant’s Outline of Argument, is on O’Malley’s
Operations Pty Limited letterhead and states “We are a preferred recruiter for selected hotels
and restaurants in Sydney”. This seems to confirm the Applicant’s suggestion that the
Respondent’s owner has employees at other venues.
[42] I have nothing before me to contradict the Applicant’s submission that the Respondent
employs at least 15 employees and having regard to the nature of the Respondent’s enterprise I
accept this is the case. I find that the Respondent is not a small business employer, having 15
or more employees at the relevant time.
[43] In her Form F2 the Applicant indicates that she commenced her employment with the
Respondent in the week commencing 17 October 2022. In her Outline of Argument the
Applicant stated that her start date was 21 October 2023 however during the hearing the
Applicant clarified that the reference to ‘2023’ was intended as a reference to ‘2022’. The
Confirmation of Employment Letter states the Applicant’s start date was 21 October 2022. An
Employment Separation Certificate filed by the Applicant indicates that the Applicant was
employed from 21 October 2022.
[44] I find that the Applicant was an employee, who commenced her employment with the
Respondent on 21 October 2022 and was dismissed on 15 May 2023, a period in excess of 6
months.
[45] I am therefore satisfied that, at the time of dismissal, the Applicant was an employee
who had completed a period of employment with the Respondent of at least the minimum
employment period.
Applicant’s annual rate of earnings and modern award coverage
[46] In her Outline of Argument the Applicant says that her hourly rate was $25 per hour and
that she worked 16 hours per week, although this sometimes differed. This is consistent with
the Confirmation of Employment Letter and pay slips filed by the Applicant which indicate that
her hourly rate was $25. The pay slips filed by the Applicant indicate that the Applicant’s annual
rate of earnings was well below the high income threshold.
[47] I find that, at the time of dismissal, the sum of the Applicant’s annual rate of earnings
together with such other amounts worked out in accordance with regulation 3.05 of the Fair
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Work Regulations 2009, was less than the high income threshold, which, for a dismissal taking
effect on or before 30 June 2023, is $162,000.
[48] Given the Applicant’s role as a Bar/Gaming Attendant in a hotel at the time of dismissal,
the Applicant would also have been covered by an award, being the Hospitality Industry
(General) Award 2020.
[49] I am therefore satisfied that, at the time of dismissal, the Applicant was a person
protected from unfair dismissal.
Was the dismissal consistent with the Small Business Fair Dismissal Code?
[50] Section 388 of the FW Act provides that a person’s dismissal was consistent with the
Small Business Fair Dismissal Code if:
(a) immediately before the time of the dismissal or at the time the person was given
notice of the dismissal (whichever happened first), the person’s employer was a
small business employer; and
(b) the employer complied with the Small Business Fair Dismissal Code in relation to
the dismissal.
[51] As mentioned above, I find that the Respondent was not a small business employer
within the meaning of s.23 of the FW Act at the relevant time, having in excess of 15 employees
(including casual employees employed on a regular and systematic basis).
[52] I am therefore satisfied that the Small Business Fair Dismissal Code does not apply, as
the Respondent is not a small business employer within the meaning of the FW Act.
Was the dismissal a case of genuine redundancy?
[53] Under s.389(1) of the FW Act, a person’s dismissal was a case of genuine redundancy
if:
(a) the employer no longer required the person’s job to be performed by anyone because
of changes in the operational requirements of the employer’s enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise
agreement that applied to the employment to consult about the redundancy.
[54] Further, s.389(2) of the FW Act provides that a person’s dismissal was not a case of
genuine redundancy if it would have been reasonable in all the circumstances for the person to
be redeployed within:
(a) the employer’s enterprise; or
(b) the enterprise of an associated entity of the employer.
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[55] In her Outline of Argument the Applicant sets out the following account of events in the
lead up to and at the time of the dismissal:
• A few weeks before the Applicant’s termination the Applicant specifically asked Riley
Panetta-Sleiman, Operations Manager at the Royal Hotel Granville about her
employment status and he assured the Applicant she was not being let go.
• On 5 May 2023 the Applicant informed Michael Barakat, the Purchasing Officer at a
venue called The Butchers Block about her pregnancy. During the hearing the Applicant
indicated that The Butchers Block was another venue that she believed was owned by
the owner of the Respondent.
• The Applicant understands that on 8 May 2023 Michael Barakat disclosed this to
managers, including Riley Panetta-Sleiman, at a manager’s meeting which resulted in
other managers and employees offering congratulations.
• The Applicant presented for her shift at 12pm on 15 May 2023 where she was greeted
by Riley Panetta-Sleiman.
• Riley Panetta-Sleiman told the Applicant that she was “being let go” due to the
Respondent “needing to hire someone full time” and expressed an understanding that
the Applicant could only work part-time.
• The Applicant was shocked and had nothing to say however was not asked if she could
increase her hours at work. The Applicant posits that this could have been a possibility
as she had enrolled her son into childcare and Riley Panetta-Sleiman was aware of this.
[56] I accept the Applicant’s account that she presented for her shift on 15 May 2023 and
was told by Riley Panetta Sleiman that she was being dismissed because the Respondent needed
a full time rather than a part time employee. However, there is no evidence before me for me to
be satisfied that this was the real reason for the dismissal or that the Respondent no longer
required the Applicant’s job to be performed by anyone because of changes in the operational
requirements of the Respondent’s enterprise. Even if this was the reason, I have earlier found
that the Applicant would be covered by the Hospitality Industry (General) Award 2020
(Award). Accepting the Applicant’s account of events surrounding the dismissal, which is the
only account before me, it is apparent that consultation as required by clause 38 of that Award
has not been undertaken. Had the real reason for the dismissal been redundancy and
consultation been undertaken before the dismissal, it may have been the case that the Applicant
could have considered the full time role or other redeployment opportunities within the
Respondent or an enterprise of an associated entity of the Respondent. The Applicant’s account
of events suggests that there was no such opportunity prior to the dismissal being communicated
to her at the commencement of her shift on 15 May 2023.
[57] I am therefore satisfied that the dismissal was not a case of genuine redundancy.
[58] Having considered each of the initial matters, I am required to consider the merits of the
Applicant’s application.
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Was the dismissal harsh, unjust or unreasonable?
[59] 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.
[60] I am required to consider each of these criteria, to the extent they are relevant to the
factual circumstances before me.1
[61] I set out my consideration of each below.
Section 387(a) - Was there a valid reason for the dismissal related to the Applicant’s
capacity or conduct?
[62] In order to be a valid reason, the reason for the dismissal should be “sound, defensible
or well founded”2 and should not be “capricious, fanciful, spiteful or prejudiced.”3 However,
the Commission will not stand in the shoes of the employer and determine what the Commission
would do if it was in the position of the employer.4
[63] As noted above, I accept the Applicant’s account that she presented for her shift on 15
May 2023 and was told by Riley Panetta Sleiman that she was being dismissed because the
Respondent needed a full time rather than a part time employee. The Respondent has not
contested these proceedings and has therefore not established the grounds for the dismissal.
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[64] The Applicant posits that the dismissal may be related to the communication of her
pregnancy however did not provide evidence to support this assertion.
[65] Notwithstanding this, there is nothing in the materials before me that establishes the
Respondent had a reason for the dismissal that was “sound, defensible or well founded”. In all
the circumstances, I find that there was no valid reason related to the Applicant’s capacity or
conduct.
Section 387(b) - Was the Applicant notified of the valid reason?
[66] Proper consideration of s.387(b) requires a finding to be made as to whether the
applicant “was notified of that reason”. Contextually, the reference to “that reason” is the valid
reason found to exist under s.387(a).5
[67] Notification of a valid reason for termination must be given to an employee protected
from unfair dismissal before the decision is made to terminate their employment,6 and in
explicit7 and plain and clear terms.8
[68] As I am not satisfied that there was a valid reason for the dismissal, this factor is not
relevant to the present circumstances.9 However even if the Applicant had been dismissed
because the Respondent required a full time rather than a part time employee, s.387(b) of the
Act would not have relevance because that reason did not relate to the Applicant’s capacity or
conduct.
Section 387 (c) - Was the Applicant given an opportunity to respond to any valid reason
related to their capacity or conduct?
[69] As I am not satisfied that there was a valid reason for the dismissal, this factor is not
relevant to the present circumstances.10 However even if the Applicant had been dismissed
because the Respondent required a full time rather than a part time employee, s.387(c) of the
Act would not have relevance because this reason did not relate to the Applicant’s capacity or
conduct.
Section 387(d) - Did the Respondent unreasonably refuse to allow the Applicant to have a
support person present to assist at discussions relating to the dismissal?
[70] There is no positive obligation on an employer to offer an employee the opportunity to
have a support person:
“This factor will only be a relevant consideration when an employee asks to have a
support person present in a discussion relating to dismissal and the employer
unreasonably refuses. It does not impose a positive obligation on employers to offer an
employee the opportunity to have a support person present when they are considering
dismissing them.”11
[71] As such, this consideration does not arise in the circumstances and I attach no weight to
it. The Applicant’s account of events is that she was advised of her dismissal when she presented
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for her shift on 15 May 2023 and in these circumstances there was no opportunity for the
Applicant to seek the assistance of a support person.
Section 387(e) - Was the Applicant warned about unsatisfactory performance before the
dismissal?
[72] There is nothing in the materials before me that suggests that the dismissal was related
to unsatisfactory performance. As the dismissal did not relate to unsatisfactory performance,
this factor is not relevant to the present circumstances.
Section 387 (f) and (g) - To what degree would the size of the Respondent’s enterprise and
absence of dedicated human resource management specialists or expertise be likely to
impact on the procedures followed in effecting the dismissal?
[73] I have no evidence or materials before me to suggest that the size of the Respondent’s
enterprise or absence of dedicated human resources management specialists or expertise in the
enterprise was likely to impact on the procedures followed in effecting the dismissal. I do not
attach any weight to this consideration.
Section 387 (h) - What other matters are relevant?
[74] Section 387(h) requires the Commission to take into account any other matters that the
Commission considers relevant.
[75] The Applicant was not a long term employee and had only been employed for a period
of between 6 and 7 months. The Applicant was however expecting a child at the time of her
dismissal, was not provided with any notice of her dismissal before it being communicated and,
in these circumstances, the impacts of the dismissal would have a more acute impact on her in
terms of her capacity to make plans and secure employment prior to her anticipated due date.
[76] Even if the reason for the dismissal was because the Respondent did not require a part
time role and required a full time role, no opportunity was provided to the Applicant to explore
alternatives to the dismissal such as taking on the full time role or other opportunities that may
have been available within the Respondent’s enterprise or the enterprise of an associated entity
of the Respondent, noting that it seems likely there were other venues connected with the
Respondent.
[77] The Applicant has submitted in her Outline of Argument that the termination has caused
financial hardship and loss of income during a vulnerable period of pregnancy, affecting her
ability to support herself and family and that she would have been entitled to parental leave pay
but for the dismissal. In this regard I note that eligibility for government funded paid parental
leave for a child born from 1 July 2023 is dependent upon a person working 10 of the 13 months
before the birth. I accept that had the Applicant continued working until the week before her
expected due date she would have worked at least 10 of the 13 months and in bringing her
employment to an end, the Applicant would likely have been deprived of this entitlement.
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or
unreasonable?
[2023] FWC 2413
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[78] I have made findings in relation to each matter specified in section 387 as relevant.
[79] I must consider and give due weight to each as a fundamental element in determining
whether the termination was harsh, unjust or unreasonable.12
[80] Having considered each of the matters specified in section 387 of the FW Act, I am
satisfied that the dismissal of the Applicant was harsh, unjust and unreasonable because the
Applicant was dismissed in an abrupt manner without prior notice after making her employer
aware of her pregnancy for a reason provided to her that appears to be unrelated to her capacity
or conduct. I have no evidence that the reason for the Applicant’s dismissal was a valid one. No
opportunity was provided for the Applicant to discuss other options, such as taking on the full
time role that the Respondent said it required. This left the Applicant in a difficult position a
matter of months before the expected due date of her child and as she may no longer qualify for
government funded paid parental leave, this exacerbates the harshness of the dismissal.
Conclusion
[81] I am therefore satisfied that the Applicant was unfairly dismissed within the meaning of
section 385 of the FW Act.
Remedy
[82] Being satisfied that the Applicant:
• made an application for an order granting a remedy under section 394;
• was a person protected from unfair dismissal; and
• was unfairly dismissed within the meaning of section 385 of the FW Act,
I may, subject to the FW Act, order the Applicant’s reinstatement, or the payment of
compensation to the Applicant.
[83] Under section 390(3) of the FW Act, I must not order the payment of compensation to
the Applicant unless:
(a) I am satisfied that reinstatement of the Applicant is inappropriate; and
(b) I consider an order for payment of compensation is appropriate in all the
circumstances of the case.
Is reinstatement of the Applicant inappropriate?
[84] The Applicant has indicated in her Form F2 that she seeks compensation stating that as
she is pregnant she cannot find work and will not receive any parental leave. In her Outline of
Argument the Applicant submits that she does not want to be reinstated for several reasons
which include, by way of summary:
[2023] FWC 2413
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1. Given her current stage of pregnancy, it is essential for her to priortise her health and
well-being during this critical time and returning to work and dealing with the potential
stress and uncertainty in relation to this case could adversely affect her pregnancy.
2. With the imminent arrival of her baby, the Applicant will soon be taking on the
significant responsibilities of being a new parent and adjusting to this requires focus,
time and energy. The Applicant says this would make it challenging to cope with the
emotional burden of what she describes as a ‘discriminatory work environment’.
3. The way she has been treated by the Respondent has led her to reassess her career goals
and aspirations and prompted her to ‘explore other career opportunities that align better
with [her] values and provide a more inclusive and respectful workplace culture’.
4. The events surrounding her dismissal and case have caused her considerable emotional
distress and if she is not reinstated will be allowed to focus on healing emotionally and
preparing for the arrival of her child in a less stressful environment.
[85] I have considered the Applicant’s views about reinstatement and, “the Applicant’s
disposition is a sure guide to the Commission as to whether or not it would be appropriate to
reinstate or re-employ the Applicant. To act contrary to the Applicant’s desired position in this
respect would be to give effect to an order that may not yield a productive or cooperative
workplace.”13
[86] Having regard to the matters referred to above, I consider that reinstatement is not
appropriate.
Compensation – what must be taken into account in determining an amount?
[87] Section 392(2) of the FW Act requires all of the circumstances of the case to be taken
into account when determining an amount to be paid as compensation to the Applicant in lieu
of reinstatement including:
(a) the effect of the order on the viability of the Respondent’s enterprise;
(b) the length of the Applicant’s service;
(c) the remuneration that the Applicant would have received, or would have been likely to
receive, if the Applicant had not been dismissed;
(d) the efforts of the Applicant (if any) to mitigate the loss suffered by the Applicant
because of the dismissal;
(e) the amount of any remuneration earned by the Applicant from employment or other
work during the period between the dismissal and the making of the order for
compensation;
[2023] FWC 2413
16
(f) the amount of any income reasonably likely to be so earned by the Applicant during the
period between the making of the order for compensation and the actual compensation;
and
(g) any other matter that the Commission considers relevant.
[88] I consider all the circumstances of the case below.
Effect of the order on the viability of the Respondent’s enterprise
[89] There is no evidence that any order I might make for compensation would in some
manner have an effect on the viability of the Respondent’s enterprise.
Length of the Applicant’s service
[90] The Applicant was employed for a short period of some 20 weeks. This is not a period
of time that warrants increasing the amount of compensation ordered and I do not otherwise
consider the Applicant’s length of service appropriate to reduce the compensation ordered in
the circumstances of this matter.
Remuneration that the Applicant would have received, or would have been likely to receive,
if the Applicant had not been dismissed
[91] As stated by a majority of the Full Court of the Federal Court, “[i]n determining the
remuneration that the Applicant would have received, or would have been likely to receive…
the Commission must address itself to the question whether, if the actual termination had not
occurred, the employment would have been likely to continue, or would have been terminated
at some time by another means. It is necessary for the Commission to make a finding of fact as
to the likelihood of a further termination, in order to be able to assess the amount of
remuneration the employee would have received, or would have been likely to receive, if there
had not been the actual termination.”14
[92] During the hearing the Applicant submitted that she would have continued working up
until a week prior to the anticipated date of the birth of her child, being 26 October 2023. I have
nothing before me to contradict this and accept this is likely to be the case. I note that as the
Applicant would not have completed at least 12 months of continuous service with the
Respondent immediately before this date, it appears that the Applicant would not have qualified
for unpaid parental leave under the FW Act and I have no evidence before me that would
suggest that the Respondent would have extended parental leave to the Applicant, paid or
otherwise, but for the dismissal. Therefore, the expected remuneration the Applicant would
have earned but for the dismissal would have been remuneration she would have earned for the
period between 15 May 2023 and 19 October 2023 when she would have stopped working
approximately one week ahead of the birth.
[93] This is a period of 22 weeks and 3 days weeks. The Applicant indicated in her Form F2
that she worked 16 hours per week although this varied. The Applicant has provided pay slips
showing her weekly working hours across her entire tenure which do indicate some variability
with hours ranging between 7.5 hours per week and 17 hours per week coming to an average
[2023] FWC 2413
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of 12.76 hours per week. There is also a period of one week in which the Applicant did not
work and appears to have been on a period of unpaid leave. The Applicant was working an
average of 14.21 hours per week immediately prior to this period and I find that had she not
been on unpaid leave this is the number of hours she would have likely worked during that
week. With the addition of those hours, the average weekly hours the Applicant worked across
her tenure was 13.25 hours. Based on 13.25 hours per week at $25 per hour for 22 weeks, and
anticipating that the Applicant would have worked her 13.25 hours across the 3 days in the 23rd
week commencing 16 October 2023, this amounts to $7,618.75.
Efforts of the Applicant to mitigate the loss suffered by the Applicant because of the
dismissal
[94] The Applicant must provide evidence that they have taken reasonable steps to minimise
the impact of the dismissal.15 What is reasonable depends on the circumstances of the case.16
[95] The Applicant indicated in her Outline of Argument that she has not made any attempts
to find another job since being dismissed as she is pregnant and believes it would be challenging
to find an employer willing to take on someone who is pregnant. While I accept that the
Applicant’s late stage of pregnancy may have impacted her options in attempting to secure
alternative employment it is apparent that the Applicant has not made any efforts at all to
mitigate her loss. Given the industry in which the Applicant was working immediately prior to
her dismissal and the transferability of skills of a Bar/Gaming attendant to other workplaces, it
may have been possible for her to find work, if only on a temporary or casual basis. Other than
her perception that an employer would not have employed her on account of her pregnancy,
there is no evidence before me to suggest that the Applicant was not able to work in some
capacity after her dismissal. Rather, the Applicant indicated during the hearing that had she not
been dismissed she would have continued working up until a week before her expected due
date. In these circumstances I have decided to reduce the amount of compensation by 20% (i.e.
down to $6,095).
Amount of remuneration earned by the Applicant from employment or other work during
the period between the dismissal and the making of the order for compensation
[96] The Applicant says she has not earned any money from employment or other work since
the dismissal. I have nothing before me to contradict this and am satisfied that this is the case.
Amount of income reasonably likely to be so earned by the Applicant during the period
between the making of the order for compensation and the actual compensation
[97] Given the Applicant’s submissions and late-stage pregnancy I am satisfied that the
Applicant will not earn any income between the making of the order for compensation and the
payment of compensation.
Other relevant matters
[98] In relation to remedy, by way of summary the Applicant has also submitted in her
Outline of Argument that:
[2023] FWC 2413
18
• the termination has caused financial hardship and loss of income during a vulnerable
period of pregnancy, affecting her ability to support herself and family;
• as an expectant mother, she seeks compensation for the parental leave pay that she
would have been entitled to;
• the dismissal has caused her significant emotional distress and she requests
compensation for the emotional toll the experience has had on her mental well-being
and overall health;
• she seeks punitive damages for discriminatory and unfair treatment.
[99] I note that section 392(4) of the FW Act provides that the amount ordered by the
Commission to be paid to a person under subsection 392(1) of the FW Act must not include a
component by way of compensation for shock, distress or humiliation, or other analogous hurt,
caused to the person by the manner of the person's dismissal .
Compensation – how is the amount to be calculated?
[100] As noted by the Full Bench, “[t]he well-established approach to the assessment of
compensation under s.392 of the FW Act… is to apply the “Sprigg formula” derived from the
Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul’s Licensed
Festival Supermarket (Sprigg).17 This approach was articulated in the context of the FW Act in
Bowden v Ottrey Homes Cobram and District Retirement Villages18.”19
[101] The approach in Sprigg 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. Workers’ compensation payments are
deducted but not social security payments. The failure of an applicant to mitigate his or
her loss may lead to a reduction in the amount of compensation ordered.
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 1
[102] I have estimated the remuneration the Applicant would have received, or would have
been likely to have received, if the Respondent had not terminated the employment to be
$7,618.75 on the basis of my finding that the Applicant would likely have remained in
employment for a further period of 22 weeks and 3 days. This estimate of how long the
Applicant would have remained in employment is the “anticipated period of employment”.20
https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fwa2009114/s26.html#subsection
[2023] FWC 2413
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Step 2
[103] I have found that the Applicant did not earn any remuneration from the date of dismissal
and was not reasonably likely to earn any income between the making of the order for
compensation and the payment of compensation. I have however applied a reduction in the
amount of compensation ordered by 20% as the Applicant has not taken steps to mitigate her
loss.
Step 3
[104] I have not made any deduction for contingencies.
Step 4
[105] I have considered the impact of taxation but have elected to settle a gross amount of
$6,095 and leave taxation for determination.
[106] Having applied the formula in Sprigg, I am nevertheless required to ensure that “the
level of compensation is an amount that is considered appropriate having regard to all the
circumstances of the case,”21 including my findings that:
• there is no evidence that an order for compensation would have an effect on the
viability of the Respondent’s enterprise;
• the Applicant was only employed by the Respondent for a period of between 6 and 7
months;
• the Applicant would have received income from her employer up until 19 October
2023, being a week before her anticipated due date had she not been dismissed;
• the Applicant has not taken active steps to mitigate her loss;
• the Applicant is unlikely to earn any income during the period between the making
of the order for compensation and the actual compensation.
[107] I am satisfied that the amount of compensation that I have determined above takes into
account all the circumstances of the case as required by s.392(2) of the FW Act.
Compensation – is the amount to be reduced on account of misconduct?
[108] If I am satisfied that misconduct of the Applicant contributed to the employer’s decision
to dismiss, I am obliged by section 392(3) of the FW Act to reduce the amount I would
otherwise order by an appropriate amount on account of the misconduct.
[109] There is no evidence before me of any misconduct on the part of the Applicant and I am
satisfied that misconduct of the Applicant did not contribute to the employer’s decision to
dismiss. Therefore the amount of the order for compensation is not to be reduced on account of
misconduct.
[2023] FWC 2413
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Compensation – how does the compensation cap apply?
[110] Section 392(5) of the FW Act provides that the amount of compensation ordered by the
Commission must not exceed the lesser of:
(a) the amount worked out under section 392(6); and
(b) half the amount of the high income threshold immediately before the dismissal.
[111] The amount worked out under section 392(6) is the total of the following amounts:
(a) the total amount of the remuneration:
(i) received by the Applicant; or
(ii) to which the Applicant was entitled;
(whichever is higher) for any period of employment with the employer during the 26
weeks immediately before the dismissal; and
(b) if the Applicant was on leave without pay or without full pay while so employed during
any part of that period – the amount of remuneration taken to have been received by the
Applicant for the period of leave in accordance with the regulations.
[112] The Applicant has provided a copy of her final pay slip which indicates that she was
paid a gross amount of $8,862.50 since the commencement of the financial year until the date
of her termination, being a period of 6 months and 25 days. I subsequently sought copies of the
Applicant’s pay slips in respect of the 6 months prior to her dismissal which indicates that she
earned $8,093.75 during that period. The Applicant was on a period of unpaid leave during that
time for one week. Regulation 3.06 provides that an employee who was on leave without pay
is taken to have received the remuneration that the employee would ordinarily have received
during the period of leave if they had not been on leave without pay. The Applicant’s average
earnings immediately prior to the one week of unpaid leave was $355.21 per week. As such, by
adding $355.21 and $8,093.75, I find that the total amount of the remuneration received by the
Applicant during the 26 weeks immediately before the dismissal was $8,448.96.
[113] The high income threshold immediately before the dismissal was $162,000. Half of that
amount is $81,000. The amount of compensation ordered by the Commission must therefore
not exceed $8,448.96.
[114] In light of the above, I will make an order that the Respondent pay $6,095.00 gross less
taxation as required by law to the Applicant in lieu of reinstatement within 14 days of the date
of this decision.
[2023] FWC 2413
21
COMMISSIONER
Appearances:
Ms Y Zayat on her own behalf.
Hearing details:
2023.
Sydney.
August 31.
Printed by authority of the Commonwealth Government Printer
PR766368
1 Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP,
Lacy SDP, Simmonds C, 21 March 2002), [69].
2 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
3 Ibid.
4 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
5 Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].
6 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
7 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
8 Ibid.
9 Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000),
[41]; Read v Cordon Square Child Care Centre [2013] FWCFB 762, [46]-[49].
10 Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000),
[41]; Read v Cordon Square Child Care Centre [2013] FWCFB 762, [46]-[49].
11 Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].
12 ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon
Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice
[1999] FCA 1836, [6]–[7].
13 Taylor v C-Tech Laser Pty Ltd [2013] FWC 8732, [58].
14 He v Lewin [2004] FCAFC 161, [58].
15 Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34] citing
Lockwood Security Products Pty Ltd v Sulocki and Ors PR908053 (AIRCFB, Giudice J, Lacy SDP, Blair C, 23 August
2001), [45].
HE FAIR WORK COMM O NOIS THE SEAT
https://www.fwc.gov.au/documents/decisionssigned/html/2011fwafb7498.htm
https://www.fwc.gov.au/documents/alldocuments/pr915674.htm
https://www.fwc.gov.au/documents/decisionssigned/html/pr915674.htm
http://www.fwa.gov.au/documents/Benchbookresources/unfairdismissals/Walton_v_Mermaid_Dry_Cleaners.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb6429.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb533.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2013fwcfb762.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2013fwcfb762.htm
https://www.fwc.gov.au/documents/decisionssigned/html/pr915674.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2013fwc8732.htm
https://www.fwc.gov.au/documents/decisionssigned/html/pr915963.htm
https://www.fwc.gov.au/documents/decisionssigned/html/pr908053.htm
[2023] FWC 2413
22
16 Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34] citing
Payzu Ltd v Saunders [1919] 2 KB 581.
17 (1998) 88 IR 21.
18 [2013] FWCFB 431.
19 Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206, [16].
20 Ellawala v Australian Postal Corporation Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000), [34].
21 Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206, [17].
https://www.fwc.gov.au/documents/decisionssigned/html/pr915963.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2013fwcfb431.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb7206.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb7206.htm
