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Fair Work Act 2009
s.394—Unfair dismissal
Alex Yates
v
Stephanie Muir Ridge
(U2024/6365)
DEPUTY PRESIDENT DEAN CANBERRA, 17 MARCH 2025
Application for an unfair dismissal remedy –award of compensation made.
[1] On 11 November 2024 I issued a decision1 (the First Decision) finding that Alex Yates
(Applicant) had been unfairly dismissed from his employment with Stephanie Muir Ridge
(Respondent).
[2] The Applicant sought a remedy of compensation. Given the evidence before me I was
satisfied that reinstatement was inappropriate, however there was insufficient evidence to make
a proper determination as to what compensation ought to be payable. I gave the parties the
opportunity to file and serve any evidence and/or submissions they wanted to rely on so that I
could determine the compensation to be payable.
[3] The First Decision was the subject of an appeal by the Respondent. Permission to appeal
was refused in a decision dated 20 February 20252 (Appeal Decision).
[4] The determination of compensation was held over pending the outcome of the appeal
which has now been finalised.
[5] Section 392(2) of the 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. I consider
all the circumstances of the case below.
Effect of the order on the viability of the Respondents enterprise
[6] The Applicant submitted that the Respondent had given evidence in the hearing that the
business was doing quite well, however the Respondent submitted that a significant payment
to the Applicant would have a significant detrimental impact on the business. A copy of the
Respondent’s balance sheet was provided in support of this submission.
[7] Having considered the contents of the balance sheet, I accept that a significant payment
will affect the viability of the Respondent’s enterprise.
[2025] FWC 733
DECISION
AUSTRALIA FairWork Commission
[2025] FWC 733
2
Length of the Applicant’s service
[8] The Applicant’s length of service was around 14 months. I consider that this period does
not support reducing or increasing the amount of compensation ordered.
Remuneration that the Applicant would have received, or would have been likely to
receive, if the Applicant had not been dismissed
[9] The Commission must address the question of 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.3
[10] The Applicant gave evidence to the effect that he expected to remain in the business for
some time, however there can be no doubt that the relationship between the Applicant and the
Respondent was deteriorating rapidly by the time the Applicant was dismissed.
[11] I do not consider the Applicant’s employment would have continued for more than two
months given the state of the relationship between the parties as at May 2024.
Efforts of the Applicant to mitigate the loss suffered by the Applicant because of the
dismissal
[12] The Applicant provided a letter from his treating psychologist which went to the impact
the dismissal, and the unfair dismissal proceedings, had on his mental health and ability to work.
[13] The Respondent submitted that the Applicant had not taken any steps to mitigate his
loss which was evident from the letter from his psychologist, and in those circumstances
submitted that his incapacity to work meant he was not entitled to compensation insofar as he
could not have worked.
[14] I accept that the Applicant’s efforts to mitigate his loss were negatively affected by his
health issues, and I consider that this should not impact the compensation ordered.
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
[15] The Applicant did not provide any material which demonstrated he had received any
income during the relevant period. The Respondent submitted this was due to his incapacity for
work and meant that the Applicant was not entitled to any compensation as a result.
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
[16] The Respondent made similar submissions as above and said that compensation should
be limited to one day’s pay.
[2025] FWC 733
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Any other matters the Commission considers relevant
[17] In relation to other relevant matters, the Respondent submitted that the Applicant’s
employment would have ended on 15 or 17 May due to his conduct towards the Respondent
and/or his ‘perceived misuse of his position’. The Respondent also submitted that the correct
pay rate for the Applicant was $55 per hour. Finally, the Respondent submitted that it is a small
business employer and would not have engaged in a significant process in providing procedural
fairness.
[18] I have considered these matters in my determination of the amount to be paid as
compensation.
Compensation payable
[19] I have considered each of the factors above in addition to the well-established approach
to the assessment of compensation which arises from the decision in Sprigg v Paul’s Licensed
Festival Supermarket (Sprigg).4
[20] Having found in the First Decision that there was an agreement between the parties that
the Applicant and Respondent would be paid the same weekly rate of pay (ie $65 gross per hour
for 38 hours per week), I have calculated the compensation to be payable on this rate of pay.
[21] I have determined that the Respondent should pay compensation to the Applicant in the
sum of four weeks’ pay, that being $9,880.00 gross plus superannuation less taxation as
required by law, within 28 days of the date of this decision.
[22] I am satisfied that this amount of compensation takes into account all the circumstances
of the case as required by s.392(2) of the Act and that it does not include a component
compensating for shock, distress and humiliation.
[23] An order giving effect to this decision is published with this decision.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR785198
OF THE PAIR WORK THE FAIR ORK CO ADOTSALLA MMISSION THE SEALO
[2025] FWC 733
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1 [2024] FWC 2973.
2 [2025] FWCFB 42.
3 He v Lewin [2004] FCAFC 161, [58].
4 (1998) 88 IR 21.
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwc2973.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2025fwcfb42.pdf
