1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Kurtis Longmore
v
Platinum Hospitality Group (Aust) Pty Ltd
(U2023/11738)
DEPUTY PRESIDENT WRIGHT SYDNEY, 16 APRIL 2024
Application for relief from unfair dismissal – no valid reason – dismissal found to be unfair –
order for compensation appropriate
Introduction and outcome
[1] On 27 November 2023, Mr Kurtis Longmore 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 he had been unfairly dismissed from his employment with the Platinum
Hospitality Group (Aust) Pty Ltd (Respondent).
[2] The Respondent owns and operates a Fast Food and Convenience Store business in
Queensland called the Loaded Burger. Mr Longmore was employed by the Respondent on a
permanent part-time basis from 3 June 2022 until he was dismissed on 17 November 2023. The
dismissal occurred after the Respondent ceased trading at the location where Mr Longmore
worked.
[3] In summary, I have found that Mr Longmore was dismissed by the Respondent and
there was not a valid reason for the dismissal. On this basis of this and other findings, I have
determined that Mr Longmore’s dismissal was harsh, unjust and unreasonable and that an order
for compensation is appropriate.
Directions and determinative conference
[4] The matter was listed for a case management conference before Commissioner Johns
on 22 January 2024. Neither party attended the case management conference. Later that day,
Commissioner Johns issued directions for the filing and serving of evidence and submissions
and listed the matter for hearing via Microsoft Teams on 4 March 2024. On 5 February 2024,
Mr Longmore filed a series of text messages between the Respondent and himself. The
Respondent did not file any material in accordance with the directions. On 26 February 2024,
the Respondent filed a Form F3 Employer response to unfair dismissal application, the
termination email and a separation certificate.
[2024] FWC 1004
DECISION
AUSTRALIA FairWork Commission
[2024] FWC 1004
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[5] The matter was reallocated to me and listed for a further case management conference
on 1 March 2024. Mr Longmore appeared at the case management conference however there
was no appearance for the Respondent. The matter was listed for determinative conference at
10:00am on 11 March 2024. Mr Longmore represented himself at the conference and there was
no appearance by the Respondent.
[6] Following the Conference, my Chambers sent an email to the parties requiring the
following to be provided by 25 March 2024:
1. The Respondent to provide payroll records in relation to the gross weekly earnings of
Mr Longmore during the period from 23 February 2023 – 23 September 2023 then
from 24 September - 17 November 2023;
2. Mr Longmore to provide any payslips which he has in his possession for the period
from 23 February 2023 to 17 November 2023 including the final payslip;
3. Mr Longmore to provide the total gross amount earned since the termination including
any payslips which show earnings during this period.
[7] Mr Longmore provided payslips in response to the email, however no response was
received from the Respondent.
Background facts
[8] The Respondent owns and operates a Fast Food and Convenience Store business called
the Loaded Burger in Queensland. During the time that Mr Longmore was employed, the
Loaded Burger operated in two locations, namely Caboolture and Morayfield. Mr Longmore
was employed by the Respondent on a permanent part-time basis from 3 June 2022 until he was
dismissed on 17 November 2023. He worked 28-30 hours per week. He took a period of unpaid
leave from 25 September 2022 until 30 December 2022. His duties included serving customers,
cooking, cleaning and stocking shelves.
[9] Mr Longmore mainly worked at the Morayfield location but occasionally worked at the
Caboolture location. On 22 September 2023, the landlord of the Morayfield premises changed
the locks which prevented the Respondent from carrying out its business there.
[10] During the period that Mr Longmore was employed by the Respondent, he did not
receive payslips regularly and did not receive any superannuation, although the few payslips
issued to Mr Longmore incorrectly stated that superannuation was being paid.
[11] At 7:03am on 23 September 2023, Mr Longmore received a text message from Mr Brett
Gorman, Director of the Respondent which stated:
Hi guys, We’ve been having issues with the real estate agent over the last few weeks
and last night they decided to get nasty with us and change the locks after we closed so
the shop is closed. We will catch up with you both tomorrow and explain everything.
Your jobs are safe so don’t stress…
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[12] Mr Longmore was subsequently informed by Mr Gorman that he would be provided
with work at the other shop in Caboolture but Mr Longmore worked there on only one occasion
on 9 October 2023. Mr Longmore says that he was ‘put on annual leave and told to stay on
annual leave until further notice’. He was not given the option of whether to go on annual leave
or not. Mr Longmore produced a number of text messages and emails between Mr Gorman and
himself in which Mr Longmore requested information about when he would next be working
but was not provided with direct answers by Mr Gorman.
[13] On 4 October 2023, the Respondent sent a letter to Mr Longmore which provided:
Dear Kurtis,
EMPLOYMENT UPDATE
Firstly, we would like to thank you for your support and understanding during
this difficult time for the company. We are continuing to work with our
solicitors, and relevant parties, to bring this current situation to an end. It
appears however that this could be long and protracted process.
As such, as per our conversation on Saturday 30 September, to be able to ensure
your ongoing PPT employment with us while we work through this process, we
will unfortunately be reducing your hours of employment with us in the interim.
We value you as an employee and this is why we are trying to keep you
employed on a reduced capacity so that you are still with us on the other side.
In saying that we do understand that everyone has to do what they have to do,
and we would fully understand that you may choose to find additional or
alternative employment and we would support and assist you in any way we can.
We hope that we will have a better understanding of what the situation is and
where it all stands by the end of this week and will be able to give you an update
at that time.
Once again, we thank you for your support and understanding at this time.
Yours faithfully,
Brett M Gorman
Managing Director.
[14] Mr Longmore received annual leave from 23 September 2023 until he ceased receiving
payments on approximately 17 November 2023. Mr Longmore says that Mr Gorman kept
telling him that he still had a job and that Mr Longmore did not know there was a possibility
that his employment could be terminated until this actually occurred.
[15] On 17 November 2023, Mr Longmore received the following email from Mr Gorman:
Hi Kurtis,
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This is to notify you that all your annual leave has now been used.
You have been receiving two payments weekly, one being your normal weekly
annual leave pay and the other being an advance on outstanding leave. These
two payments have now exhausted all of the leave you had accrued.
The reality is, that whilst the ongoing legal battle continues with Cresthaven, we
are not in a position to offer you any employment, and as such unfortunately
your employment is terminated.
Attached is your final payslip showing the balance of the annual leave taken up
and an additional 67 unworked hours as payment in lieu of notice.
In addition to your payslip, I have also included two additional supporting
documents.
The total net payable on the final payslip is $2056.62, as you have been already
paid the sum of $2051.70 in advance payments, the balance owed to be
transferred today to finalise all your outstanding entitlements in $4.92.
I will complete and email you a separation certificate over the weekend when I
won’t have any interruptions.
Kind regards,
Brett M Gorman
Managing Director
[16] Mr Longmore later became aware from the real estate agent who managed the property
that the Respondent had been behind in its rent for six months. The real estate agent told Mr
Longmore that the ‘legal battle’ which the Mr Gorman referred to in its email was resolved 2-
3 weeks after the locks were changed. Mr Longmore believes that the real reason that his
employment was terminated was so Mr Gorman could employ his partner at the Caboolture
business rather than Mr Longmore.
[17] Mr Longmore said that the Morayfield business ceased operating after the locks were
changed but that he believed the Caboolture business continued to trade, based upon his
observations when driving past that it had a full drinks fridge and that it still had active Google
and Uber Eats webpages.
[18] Since the dismissal, Mr Longmore has struggled to find work. He worked for an
unsavory employer doing garage door installations in January 2024 which ceased as a result of
a pay dispute. Mr Longmore is currently working for a labour hire company 2-3 days per week.
When can the Commission order a remedy for unfair dismissal?
[19] Section 390 of the FW Act provides that the Commission may order a remedy if:
[2024] FWC 1004
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(a) the Commission is satisfied that Mr Longmore was protected from unfair dismissal
at the time of being dismissed; and
(b) Mr Longmore has been unfairly dismissed.
[20] Both limbs must be satisfied. I am therefore required to consider whether Mr Longmore
was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that Mr
Longmore was so protected, whether Mr Longmore has been unfairly dismissed.
When has a person been unfairly dismissed?
[21] 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.
Initial matters
[22] A threshold issue to determine is whether Mr Longmore has been dismissed from his
employment.
[23] The email which Mr Gorman sent to Mr Longmore on 17 November 2023 establishes
that Mr Longmore’s employment was terminated at the initiative of the Respondent. As such I
am satisfied that Mr Longmore has been dismissed within the meaning of s.385 of the FW Act.
[24] Under s.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.
[25] I have decided these matters below.
Was the application was made within the period required in subsection 394(2)?
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[26] Section 394(2) requires an application to be made within 21 days after the dismissal
took effect.
[27] The evidence establishes that Mr Longmore was dismissed from his employment on 17
November 2023 and made the application on on 27 November 2023. I am therefore satisfied
that the application was made within the period required in subsection 394(2).
Was Mr Longmore protected from unfair dismissal?
[28] 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;
(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.
[29] Under s.383 of the FW Act, ‘the minimum employment period’ is one year if the
employer is a small business employer and 6 months in all other cases. The period ends at the
earlier of the time when the person is given notice of the dismissal or immediately before the
dismissal. Section 23 of the FW Act defines a small business employer as an employer who
employs fewer than 15 employees. The Respondent claimed in the F3 that it was a small
business employer and that and that the Fast Food Industry Award 2020 (the Award) applied
to Mr Longmore’s employment.
[30] Mr Longmore did not dispute this. Mr Longmore’s period of service was approximately
14 months, not including the period of unpaid leave. I therefore find, that at the time of
dismissal, Mr Longmore had completed at least the minimum period of employment with the
Respondent, and that a Modern Award applied to Mr Longmore’s employment.
[31] I am therefore satisfied that, at the time of dismissal, Mr Longmore was a person
protected from unfair dismissal.
Was the dismissal consistent with the Small Business Fair Dismissal Code?
[32] The Small Business Fair Dismissal Code applied to the Respondent. In the F3 Response,
the Respondent indicated that it complied with the Small Business Fair Dismissal Code but did
not attach a Small Business Fair Dismissal Code Checklist or any other evidence which
established that the Code had been complied with.
[2024] FWC 1004
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[33] The Code provides that in the case of a dismissal which is not a summary dismissal,
…the small business employer must give the employee a reason why he or she is at risk
of being dismissed.
[34] Implicit in this requirement is that the small business employer must advise the
employee before the dismissal takes effect that there is a risk of dismissal and the reason for
this. There is no evidence before me that the Respondent advised Mr Longmore before sending
the email on 17 November 2023 that he might be dismissed because of the ‘ongoing legal
battle….with Cresthaven’. Mr Longmore only became aware of this when he received the email
from the Respondent. As the Respondent did not comply with the requirement to give Mr
Longmore a reason why he was at risk of being dismissed, I find that the dismissal was not
consistent with the Small Business Fair Dismissal Code
Was the dismissal a case of genuine redundancy?
[35] In the F3 Response, the Respondent stated:
The Business that the employee was employed to work was closed overnight on the 29th
November 20231 due to actions taken by the landlord and their commercial property
managers representing them. The business remained closed as of 17 November 2023
(date of said termination) and as it had no realistic chance of reopening due to ongoing
legal dispute at the time the store was permanently closed. Said legal dispute continues
as at the time of completing this form.
The employee’s position was never refilled nor is there any chance of this occurring due
to the permanent closure/shut down of the business operations.
[36] This suggests that Mr Longmore’s employment was terminated due to redundancy.
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.
[37] Section 389(2) 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 the employer’s enterprise or the enterprise of an associated entity of the
employer.
[38] If the Respondent’s statement in the F3 is accepted, it appears that the requirements of
s.389(1)(a) are met. In relation to s.389(1)(b), I note that Clause 28 of the Award provides:
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28. Consultation about major workplace change
28.1 If an employer makes a definite decision to make major changes in production,
program, organisation, structure or technology that are likely to have
significant effects on employees, the employer must:
(a) give notice of the changes to all employees who may be affected by them
and their representatives (if any); and
(b) discuss with affected employees and their representatives (if any):
(i) the introduction of the changes; and
(ii) their likely effect on employees; and
(iii) measures to avoid or reduce the adverse effects of the changes on
employees; and
(c) commence discussions as soon as practicable after a definite decision has
been made.
28.2 For the purposes of the discussion under clause 28.1(b), the employer must
give in writing to the affected employees and their representatives (if any) all
relevant information about the changes including:
(a) their nature; and
(b) their expected effect on employees; and
(c) any other matters likely to affect employees.
28.3 Clause 28.2 does not require an employer to disclose any confidential
information if its disclosure would be contrary to the employer’s interests.
28.4 The employer must promptly consider any matters raised by the employees or
their representatives about the changes in the course of the discussion under
clause 28.1(b).
28.5 In clause 28 significant effects, on employees, includes any of the following:
(a) termination of employment; or
(b) major changes in the composition, operation or size of the employer’s
workforce or in the skills required; or
(c) loss of, or reduction in, job or promotion opportunities; or
(d) loss of, or reduction in, job tenure; or
(e) alteration of hours of work; or
(f) the need for employees to be retrained or transferred to other work or
locations; or
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(g) job restructuring.
28.6 Where this award makes provision for alteration of any of the matters defined
at clause 28.5, such alteration is taken not to have significant effect.
[39] In my view, the ‘definite decision’ which the Respondent was required to consult Mr
Longmore about under clause 28 of the Award was the Respondent’s decision to close down
one of its stores, because it was this decision which was likely to have a significant effect on
Mr Longmore, including termination of employment. There is no evidence that the Respondent
complied with any of its obligations under clause 28 of the Award. I therefore find that the
requirements of s.389(1)(b) are not met and that the dismissal was therefore not a case of
genuine redundancy within the meaning of s. 389(1).
[40] Having considered each of the initial matters, I am required to consider the merits of the
application.
Was the dismissal harsh, unjust or unreasonable?
[41] 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.
[42] I am required to consider each of these criteria, to the extent they are relevant to the
factual circumstances before me.2
[43] I set out my consideration of each of these criteria below.
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Was there a valid reason for the dismissal related to Mr Longmore’s capacity or conduct?
[44] There is no evidence that the dismissal related to Mr Longmore’s capacity or conduct. I
therefore find that there was no valid reason for the dismissal related to Mr Longmore’s capacity
or conduct.
Was Mr Longmore given an opportunity to respond to any valid reason related to her capacity
or conduct?
[45] As I have not found that there was a valid reason related to related to Mr Longmore’s
capacity or conduct, this factor is not relevant to the present circumstances.3
Did the Respondent unreasonably refuse to allow Mr Longmore to have a support person
present to assist at discussions relating to the dismissal?
[46] There were no discussions between Mr Longmore and the Respondent relating to the
dismissal before it occurred.
Was Mr Longmore warned about unsatisfactory performance before the dismissal?
[47] 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 be likely to impact on the
procedures followed in effecting the dismissal?
[48] There was no evidence or submissions made by either party in relation to this matter.
To what degree would the 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?
[49] There was no evidence or submissions made by either party in relation to this matter.
What other matters are relevant?
[50] The dismissal occurred approximately eight weeks after the locks were changed by the
landlord at the Loaded Burger store in Morayfield. I accept Mr Longmore’s evidence that
during this period he was advised by the Respondent that he would be provided with
employment at the Caboolture store and that he was not warned that there was a possibility that
his employment could be terminated. I also accept that Mr Longmore was only offered one shift
at the Caboolture store and that he was placed on annual leave without his consent.
[51] The Respondent chose not to participate in the proceedings so there is no evidence
before me about the reasons that the the locks were changed by the landlord at the Loaded
Burger store in Morayfield apart from the hearsay evidence provided by Mr Longmore in
relation to his conversation with the real estate agent. In these circumstances, I am unable to
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make any conclusions about whether the Respondent’s conduct contributed to the closure of
the Morayfield store. I do however accept that the eight-week period from closure of the store
to the termination of Mr Longmore’s employment was likely to be a stressful and uncertain
time for Mr Longmore.
[52] It is possible that the Respondent was trying to avoid terminating Mr Longmore’s
employment by placing him on annual leave however it did not communicate this to Mr
Longmore. If the Respondent had followed the consultation requirements in clause 28 of the
Award, Mr Longmore would have been made aware that the termination of his employment
was a possible outcome of the store closure and could have discussed with the Respondent
measures to avoid or reduce the adverse effects of the termination. He could have chosen to use
his annual leave to maintain his employment or actively looked for alternative employment.
The Respondent’s failure to comply with clause 28 of the Award resulted in these and other
options not being available to Mr Longmore and as such the dismissal created harsh
consequences for him. So too did the Respondent’s actions in effectively terminating Mr
Longmore’s employment without notice, contrary to s. 117 of the FW Act. In the email advising
of the termination, the Respondent purported to apply two weeks pay in lieu of notice to
‘advance payments’ resulting in Mr Longmore receiving only $4.92 at termination. This action
was not available to the Respondent under s. 117 and resulted in Mr Longmore being deprived
of income immediately, undoubtably causing him financial hardship.
[53] I note that Mr Longmore appears to dispute that his dismissal arose from the closure of
the Morayfield store and believes that the real reason is because Mr Gorman wished to employ
his partner. Although I accept that Mr Longmore’s belief about this is genuine, there is no
evidence before me to support this belief. Given that there is no dispute that the Morayfield
store has ceased trading, I find that it is more likely than not that the dismissal was caused by
the closure of the Morayfield store.
Is the Commission satisfied that the dismissal of Mr Longmore was harsh, unjust or
unreasonable?
[54] I have made findings in relation to each matter specified in section 387 as relevant.
[55] I must consider and give due weight to each as a fundamental element in determining
whether the termination was harsh, unjust or unreasonable.4
[56] Having considered each of the matters specified in section 387 of the FW Act, I am
satisfied that the dismissal of Mr Longmore was harsh, unjust and unreasonable because of the
following matters:
• Mr Longmore was not advised by the Respondent of the possibility that he would be
dismissed;
• The Respondent did not follow the consultation provisions of the Award;
• The Respondent required Mr Longmore to take annual leave and did not advise Mr
Longmore that his employment would be terminated when the annual leave was
exhausted;
• The Respondent terminated Mr Longmore’s employment without notice;
• The actions of the Respondent caused Mr Longmore financial hardship.
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[57] I am therefore satisfied that Mr Longmore was unfairly dismissed within the meaning
of section 385 of the FW Act.
Remedy
[58] Being satisfied that Mr Longmore made an application for an order granting a remedy
under s.394, was a person protected from unfair dismissal, and was unfairly dismissed within
the meaning of s.385 of the FW Act, I may, subject to the FW Act, order Mr Longmore’s
reinstatement, or the payment of compensation to Mr Longmore.
[59] Under section 390(3) of the FW Act, I must not order the payment of compensation to
Mr Longmore unless:
(a) I am satisfied that reinstatement of Mr Longmore is inappropriate; and
(b) I consider an order for payment of compensation is appropriate in all the
circumstances of the case.
Is reinstatement of Mr Longmore inappropriate?
[60] Mr Longmore has not sought reinstatement and the Respondent has not made any
submissions in relation to this matter. On this basis I consider that reinstatement is
inappropriate.
Is an order for payment of compensation appropriate in all the circumstances of the case?
[61] Having found that reinstatement is inappropriate, it does not automatically follow that a
payment for compensation is appropriate. As noted by the Full Bench, ‘[t]he question whether
to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary
one…’5
[62] Where an applicant has suffered financial loss as a result of the dismissal, this may be a
relevant consideration in the exercise of this discretion.6
Compensation – what must be taken into account in determining an amount?
[63] 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 Mr Longmore 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;
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(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;
(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.
[64] I consider all the circumstances of the case below.
Effect of the order on the viability the Respondent’s enterprise
[65] There was no evidence adduced by either party as to whether an order for compensation
would have an effect on the viability of the employer’s enterprise so I make no findings in
relation to this matter.
Length of Mr Longmore’s service
[66] Mr Longmore’s length of service was approximately 14 months. I consider that Mr
Longmore’s length of service does not support reducing or increasing the amount of
compensation ordered.
Remuneration that Mr Longmore would have received, or would have been likely to receive,
if Mr Longmore had not been dismissed
[67] 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.7
[68] I have found that it is more likely than not that the dismissal was caused by the closure
of the Morayfield store. In the circumstances I believe that it is unlikely that Mr Longmore’s
employment would have continued longer than the consultation period required under the
Award. In my view, the consultation period would have taken approximately two weeks.
Following the consultation period, the Respondent was required to provide Mr Longmore with
two weeks notice of termination. Mr Longmore gave evidence that the Respondent provided
him with payslips on a sporadic basis. The payslips that Mr Longmore was able to produce
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showed that his gross earnings for the 2024/2025 financial year immediately before being
required to take annual leave was $9,561.75 as at 6 September 2023, This is a period of
approximately 10 weeks so I find that the average weekly amount earned by Mr Longmore
prior to the dismissal was $956.18. I find that the remuneration that Mr Longmore would have
received, or would have been likely to receive, if Mr Longmore had not been dismissed is
$3,824.72 reflecting an expected employment period of 4 weeks.
Efforts of Mr Longmore to mitigate the loss suffered by Mr Longmore because of the
dismissal
[69] Mr Longmore must provide evidence that he has taken reasonable steps to minimise the
impact of the dismissal.8 What is reasonable depends on the circumstances of the case.9
[70] Mr Longmore gave evidence that after the dismissal, he worked for an unsavory
employer doing garage door installations which ceased as a result of a pay dispute. Mr
Longmore is currently working for a labour hire company 2-3 days per week. Mr Longmore
provided payslips which showed his earnings since the dismissal.
[71] On the basis of the evidence before me, I am satisfied that Mr Longmore took reasonable
steps to mitigate his loss.
Amount of remuneration earned by Mr Longmore from employment or other work during
the period between the dismissal and the making of the order for compensation
[72] The evidence shows that Mr Longmore has earned a gross amount of $3,452.67 since
the dismissal. However this amount was earned from 8 January 2024, which is after the period
of expected employment if the dismissal had not occurred. As such I have not made any
deductions in respect of this amount.
Amount of income reasonably likely to be so earned by Mr Longmore during the period
between the making of the order for compensation and the actual compensation
[73] There was no evidence adduced by Mr Longmore as in relation to the amount of income
reasonably likely to be earned by Mr Longmore during the period between the making of the
order for compensation and the actual compensation, so I make no findings in relation to this
matter.
Other relevant matters
[74] I have taken into account that Mr Longmore was left without income after his
employment was terminated as a result of the Respondent requiring him to exhaust his annual
leave (while not advising Mr Longmore that his dismissal was imminent) and failing to provide
Mr Longmore of notice of termination.
Compensation – how is the amount to be calculated?
[75] 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
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Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul’s Licensed
Festival Supermarket (Sprigg).10 This approach was articulated in the context of the FW Act in
Bowden v Ottrey Homes Cobram and District Retirement Villages11’.12
[76] Applying the Sprigg formula, I find that Mr Longmore would receive compensation
equivalent to the four-week expected period of employment. 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.’13 In my view, the Respondent’s actions in requiring Mr
Longmore to exhaust his annual leave entitlement without advising Mr Longmore that his
employment was likely to be terminated put Mr Longmore at considerable disadvantage. If Mr
Longmore had been aware that his employment was going to be terminated, he could have been
actively looking for alternative employment. Further if Mr Longmore’s employment had been
terminated without requiring him to exhaust his annual leave, Mr Longmore would have had
approximately five weeks annual leave to live off while he sought other employment. Instead,
Mr Longmore received only $4.92 at termination.
[77] Taking these matters into account, I believe that it is appropriate that the Respondent
pay Mr Longmore the amount that he would have earned from the date of termination until he
found alternative employment, namely from 17 November 2023 until 7 January 2024 which is
a period of approximately 7 weeks. This is a gross amount of $6,693.26 plus superannuation.
[78] I am satisfied that the amount of compensation that I have determined takes into account
all the circumstances of the case as required by s.392(2) of the FW Act and that the amount
does not include a component compensating for shock, distress or humiliation.
Compensation – is the amount to be reduced on account of misconduct?
[79] I am satisfied that Mr Longmore did not engage in misconduct. Therefore, the amount
of the order for compensation is not to be reduced on account of misconduct.
Compensation – how does the compensation cap apply?
[80] 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.
[81] 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 Mr Longmore; or
(ii) to which Mr Longmore was entitled;
[2024] FWC 1004
16
(whichever is higher) for any period of employment with the employer during the
26 weeks immediately before the dismissal; and
(b) if Mr Longmore 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 Mr Longmore for the period of leave in accordance with the regulations.
[82] I have determined the amount of compensation as $6,693.26 gross plus superannuation
which is below the amount in s. 392(5).
Conclusion
[83] I have found that Mr Longmore was protected from unfair dismissal at the time of being
dismissed and that the dismissal was harsh, unjust and unreasonable. I have determined that
that an order for compensation is appropriate and the Respondent should pay compensation to
Mr Longmore in the sum of $6,693.26 gross plus superannuation less taxation as required by
law in lieu of reinstatement within 7 days of the date of this decision.
[84] An order giving effect to this decision is published with this decision.
DEPUTY PRESIDENT
Mr K. Longmore for the Applicant.
No appearance for the Respondent.
Hearing details:
2024
March 11
Sydney
Printed by authority of the Commonwealth Government Printer
PR773574
OF THE FAIR WORK L MISSION THE SEA
[2024] FWC 1004
17
1 This appears to be a typographical error as the text message sent by the Respondent to Mr Longmore indicates the locks
were changed on 22 September 2023.
2 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].
3 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].
4 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].
5 Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014]
FWCFB 7198, [9].
6 Vennix v Mayfield Childcare Ltd [2020] FWCFB 550, [20]; Jeffrey v IBM Australia Ltd [2015] FWCFB 4171, [5]-[7].
7 He v Lewin [2004] FCAFC 161, [58].
8 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].
9 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.
10 (1998) 88 IR 21.
11 [2013] FWCFB 431.
12 Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206, [16].
13 Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206, [17].
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https://www.fwc.gov.au/documents/alldocuments/pr915674.htm
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https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb550.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb4171.htm
https://www.fwc.gov.au/documents/decisionssigned/html/pr915963.htm
https://www.fwc.gov.au/documents/decisionssigned/html/pr908053.htm
https://www.fwc.gov.au/documents/decisionssigned/html/pr915963.htm
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https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb7206.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb7206.htm
