1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Kate Southern
v
Lucky 88 Enterprises Pty Ltd
(U2024/12245)
COMMISSIONER WILSON MELBOURNE, 20 MARCH 2025
Application for an unfair dismissal remedy - Failure of Respondent to attend or engage with
the proceedings – Election to proceed in the absence of the Respondent - Unfair dismissal
found - Reinstatement not appropriate - Compensation appropriate - Compensation ordered.
[1] This decision concerns an application for an unfair dismissal remedy made to the Fair
Work Commission (the Commission) by Ms Kate Southern, in relation to the termination of
her employment by her employer, Lucky 88 Enterprises Pty Ltd (Lucky 88 Enterprises or the
Respondent). In her application, Ms Southern claims her dismissal was unfair.
[2] The Respondent has not meaningfully engaged in these proceedings and my decision
has been made without an appearance, submissions or evidence from Lucky 88 Enterprises.
The Commission’s attempts to engage with the Respondent are set out below. As a result of the
Respondent’s failure to engage with those attempts, I was satisfied that the Respondent did not
wish to participate in proceedings before the Fair Work Commission and that it was fair in all
the circumstances that I proceed to determine Ms Southern’s application in the absence of the
Respondent.
[3] Ms Southern appeared at and gave submissions and evidence about her application at
hearings conducted by me on 9 and 20 January 2025.
[4] After consideration of the material before me, I find that Ms Southern was unfairly
dismissed, that reinstatement is not appropriate and that compensation is appropriate and is
ordered for payment.
Attempts to engage with the Respondent
[5] The following attempts to engage with the Respondent and have them provide
submissions or evidence include the following;
• On 28 October 2024, in response to an email from the Commission providing the
Applicant’s Form F2 to Mr George Sleiman, the contact person listed for the
Respondent in the Applicant’s Form F2, Mr Sleiman requested that correspondence
[2025] FWC 725
DECISION
AUSTRALIA FairWork Commission
[2025] FWC 725
2
needing to go to the Respondent be forwarded to an email address,
payslips@lucky88.net.au.
• After that advice correspondence from the Commission was routinely sent to that
address and an email was sent to that address seeking contact and the provision of the
name of a contact person.
• No response to that email was ever received by the Commission from
payslips@lucky88.net.au. No response to any further correspondence sent to that email
address by the Commission was ever received by the Commission.
• A conciliation conference, to be convened by the Commission’s conciliation staff was
listed for 8 November 2024. No representative of the Respondent attended the
conciliation on 8 November. The Commission attempted to contact the Respondent,
calling the mobile number of George Sleiman provided on the Applicant’s Form F2. Mr
Sleiman answered the call, the following is the notes of that interaction taken by the
Commission’s employee:
The employer was nominated as George Sleiman at Wellington Park Kennels,
he refused to attend and when rung said he was not the Applicant's employer
(although she reported to him) but an employee of Precise Training which leases
the site from the employer Lucky 88.
George and his brother Peter Sleiman own Precise Training together. George
refused to advise me as to who was the correct employer or any details (address,
telephone number or name) of Lucky 88. Peter Sleiman owns a number of
businesses including Lucky 88.
I rang the telephone number [omitted] for Lucky 88 which is a call centre and
they could not put me in touch with Peter Sleiman, I left a message but don't
expect to hear back. An address that has appeared in searches in relation to
Peter Sleiman is [omitted].
• The matter was allocated to my Chambers on 14 November. On 18 November, my
Chambers sent an email to the Parties, notifying them that the matter had been allocated
to me and requesting the Applicant provide Chambers with copies of her most recent
payslips, to assist the Commission in determining who she was employed by.
• A Notice of Listing and Directions were then sent to the Parties on 28 November 2024,
listing the matter for hearing of the merits of the matter on 9 January 2024. This email
was sent to both payslips@lucky88.net.au and george@avsgroup.com.au. The Notice
of Listing, Directions and a printout of the contents of the email were also mailed, by
express post, to both [omitted], the address identified by the Commission in searched in
relation to Mr Peter Sleiman and Lucky 88 Enterprises Pty Ltd and to Wellington Park
Kennels, [omitted], the address specified by the Applicant in her Form F2.
mailto:payslips@lucky88.net.au
mailto:payslips@lucky88.net.au
mailto:payslips@lucky88.net.au
mailto:george@avsgroup.com.au
[2025] FWC 725
3
• On 13 December, my Chambers sent an additional email to the Respondent reiterating
that the Directions issued on 28 November required the Respondent to file and serve its
material in reply by 4:00PM Friday, 3 January 2025.
• At the hearing on 9 January, Ms Kate Southern appeared on her own behalf and no
representative of the Respondent attended. My Chambers called Mr George Sleiman’s
mobile number at 10:31 that day, the phone rang indefinitely, with no opportunity for a
message to be left. At 10:35, my Chambers called Mr Sleiman’s mobile number again
with no answer. An email was also sent to the Parties at 10:35, (including both
payslips@lucky88.net.au and george@avsgroup.com.au) prompting the Respondent to
join the hearing and providing the Microsoft Teams link to join.
• The hearing took place on 9 January without the Respondent in attendance. During the
9 January hearing, I made the decision to adjourn the matter to a later date, to give the
Respondent a final opportunity to file such submissions in evidence as it may have
wished in response to the Commission’s earlier Directions. A transcript of the hearing
was also made and sent to the Respondent on 10 January 2025.
• Later on 9 January, an email was sent to the Parties, listing the matter for a further
hearing on Monday, 20 January 2025.
• At the second hearing of this matter before me, at 3:30PM on Monday, 20 January 2025,
Ms Kate Southern appeared on her own behalf. No representative of the Respondent
attended the hearing. At 3:30, my Chambers emailed the Parties, prompting the
Respondent to join the Hearing, which did not occur.
[6] As a result of these attempts to contact the Respondent, I was satisfied that it did not
wish to participate in proceedings before the Fair Work Commission and that it was fair in all
the circumstances that I proceed in the absence of the Respondent.
Section 396 - Initial matters
[7] Section 396 of the FW Act requires the determination of four initial matters before
consideration of the merits of the application. Those matters are, whether the application was
made within the period required in s 394(2) of the FW Act, whether the person was protected
from unfair dismissal, whether the dismissal was consistent with the Small Business Fair
Dismissal Code, and whether the dismissal was a case of genuine redundancy.
[8] In relation to these matters I am satisfied that Mr Southern made her application within
the period required in s.394(2). Her dismissal took effect on 13 October 2024 and she lodged
her unfair dismissal application the same day.
[9] I am also satisfied that Ms Southern was a person protected from unfair dismissal
without protection being in respect of her employment with Lucky 88 Enterprises. On 8
February 2023, Ms Southern was offered full-time employment with a business by the name of
“Precise Training/Wellington Park kennels”. At some short time after this offer was made and
accepted, the entity employing Ms Southern changed to Lucky 88 Enterprises. Ms Southern
says that her employment with Lucky 88 Enterprises commenced on 27 March 2023.1 Amongst
mailto:payslips@lucky88.net.au
mailto:george@avsgroup.com.au
[2025] FWC 725
4
other materials provided by Ms Southern is an Australian Taxation Office Income Statement
for the financial year 2023 – 24 and referable to payments made to Ms Southern by Lucky 88
Enterprises to Ms Southern. That and other material satisfies me that there was a period of
continuous service by Ms Southern with Lucky 88 Enterprises, from some time in 2023 until
her termination of employment on 13 October 2024. Being satisfied that Ms Southern has
completed the minimum employment period, it follows that she was also person protected from
unfair dismissal at the time of her termination of employment.
[10] There is no material before me that would lead me to conclude that Ms Southern’s
dismissal was consistent with the small business fair dismissal code.
[11] The meaning of genuine redundancy as set out within s.389 which contains three
essential elements; that the person’s employer no longer required the job to be performed by
anyone because of changes in the operational requirements of the employer’s enterprise; that
they have complied with the obligations of any applicable award or enterprise agreement to
consult about the person’s redundancy; and that it would not have been reasonable in all the
circumstances for the person to be redeployed either within the employer’s enterprise or that of
an associated entity of the employer.
[12] I am not satisfied of any of these essential elements.
[13] While the termination of employment letter to Ms Southern sets forth that her
termination arose because of the employer experiencing financial difficulties due to a lack of
work in their industry, Ms Southern is sceptical of the claim, giving evidence that she saw
advertisements by her employer for new employees during her notice period. This evidence
was given in response to the following questions from me;
“… Do you agree with the statement about why you were dismissed?---No.
And why is that?---Well, considering they advertised for new staff within my two-week
notice period. There was peak season coming up, in which case they employed another
five people after I left.
How did you become aware that they had employed further people?---I became aware
of the advert within my two-week notice period and probably a couple of weeks after
that, I was aware of at least one person employed and then over the course of the - you
know the following weeks, I heard of others. I started a new job and found out that one
of the people who used to work at where I was currently working had gone to work at
Wellington Park as well. So that was interesting. It's coincidental.”2
[14] Depending on the costs involved, advertising for new staff during a person’s notice
period could suggest that a business has overstated its poor financial position or that it no longer
requires a person’s job to be done by anyone. While not definitive of the subject, Ms Southern’s
evidence leans against a finding that her dismissal was motivated by the need to reduce costs
or that the Respondent no longer required her job to be done by anyone.
[15] Further, Ms Southern submits and I agree that her employment was covered by the
Miscellaneous Award3, which provides for consultation about major workplace change likely
[2025] FWC 725
5
to have significant effects on employees in clause 27. The definition of “significant effects” in
clause 27.5 includes termination of employment. It follows that there was an obligation on the
Respondent to consult with Ms Southern about how likely termination of employment. There
is no evidence before the Commission that there was any such consultation and Ms Southern’s
evidence is that there was not.4
[16] Ms Southern also contests whether any consideration was given by the Respondent to
her redeployment, either within its own enterprise or that of an associated entity. Her evidence
on the subject was that, within a short period of being notified of her termination of
employment, new employees started within the enterprise and that advertising for new
employees continued after her employment ended. Ms Southern considers, and I concur, that
this advertising would indicate redeployment to another position was not considered by the
Respondent and that, as such, a finding is not available under s 389(2) that redeployment would
not have been reasonable in all the circumstances.
[17] These matters, taken as a whole, lead me to conclude that Ms Southern’s dismissal was
not a genuine redundancy.
Whether an unfair dimissal
[18] I turn now to consideration of the merits of Ms Southern’s application.
[19] The legislative provisions relevant to this matter are set out in s 387 of the FW Act,
which is as follows:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable,
the FWC 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
[2025] FWC 725
6
(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.”
[20] So far as it is relevant to the circumstances of this case, a dismissal is unfair, in the case
of a person protected from unfair dismissal, when that person is dismissed in a manner that was
harsh, unjust or unreasonable, taking into account the criteria within s 387. I will deal with each
of the criteria within s 387 in turn.
(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)
Valid reason – general principles
[21] To be a valid reason, the reason must be “… sound, defensible or well-founded.” A
reason which is “… capricious, fanciful, spiteful or prejudiced …” cannot be a valid reason.5
The reason for termination must be defensible or justifiable on an objective analysis of the
relevant facts.6 The valid reason for termination is not to be judged by legal entitlement to
terminate an employee, “… but [by] the existence of a reason for the exercise of that right”
related to the facts of the matter.7 Ascertainment of a valid reason involves a consideration of
the overall context of the “practical sphere” of the employment relationship.8
[22] On Monday, 30 September 2024 at 4:34 PM, Ms Southern received the following email
from her employer, sent from payslips@lucky88.net.au, terminating her employment;
“Dear Kate,
As per our conversation. Over the last several months, we have experienced financial
difficulties due to lack of work in our industry. We have explored many options.
Unfortunately, our efforts have been unsuccessful, and we find that we must reduce our
workforce to ensure the financial stability of the company.
It is with deepest regret that I inform you that your position is one that will be eliminated
effective week ending the 13th of October 2024.
Please accept our appreciation for your contributions during your employment with us.
Sincerely,
Lucky 88”9
[23] The letter was given to Ms Southern after a meeting on 30 September 2024with George
Sleiman and Amelia Todd, her supervisor. Ms Southern was told in the meeting she would be
dismissed, however was not give much of an explanation about her dismissal in the meeting,
which commenced at about 4:15 PM and had ended by 4:34 PM when Ms Southern received
the above termination letter.
mailto:payslips@lucky88.net.au
[2025] FWC 725
7
[24] Given that there has been no appearance in these proceedings from the Respondent,
there is some difficulty in determining what may be relied upon by the Respondent as its “valid
reason” for Ms Southern’s termination. Nonetheless, its letter of 30 September advises Ms
Southern that she was to lose her job because of financial difficulties arising from the lack of
work in “our industry”, presumably being a reference to pet boarding kennels.
[25] Ms Southern’s evidence on this matter includes the matters referred to above in relation
to consideration of genuine redundancy, in which she notes advertising for new employees
within her notice period. She gave this further evidence about Wellington Park Kennel’s
workload, which she believes was not undergoing a downturn and from which she draws the
view that hers was an unfair dismissal. After referring to her view that a peak business period
was coming, Ms Southern elaborated that the peak periods were “when people generally go
away on holidays. So at Christmas, Melbourne Cup Day, school holidays, all of those types of
things. Public holidays. That's classed as peak period.”10
[26] Ms Southern also gave evidence that after the employing entity changed to Lucky 88
Enterprises, she continued to perform ad hoc work for Precise Training as a means to bolster
her income. That work however stopped, which Ms Southern attributed to a deteriorating
relationship with Ms Todd.11
[27] In her written submissions, Ms Southern noticed that by 30 September 2024, her
rostered hours had been changed, from which she concludes that by 29 September 2024, a
decision had already been made to dismiss her.12 She submitted about the subject;
“Notwithstanding there was no valid reason for the dismissal, the decision to dismiss
me was made at the latest on 29 September 2024, when Amelia Todd emailed me a new
roster for the week commencing 30 September 2024. This new roster reflects the
incorrect notice period of 1 week I was subsequently advised of by George Sleiman on
30 September 2024 and to ensure I was under the supervision of Amelia Todd during
this final week.”13
Ms Southern suspects that her age (50) contributed to her dismissal;
“Amelia Todd was my immediate manager and micro managed me from the start. I
requested meetings, and walk throughs of the kennels, to ensure that I was doing task
the way they needed to be in this particular kennels. There were no policies or
procedures to follow other than what was governed by relevant legislation. As such I
was directed to write a manual. Despite it never being used.
As time went on, I found my feet and grew in confidence within the role, however it
was clear that Amelia didn’t like me. She told me in my first year of being there that
she would not have employed me if she knew my age and also prevented me from
employing a very suitable applicant because the applicant was over the age of 35 years.”
[28] On the basis of Ms Southern’s evidence, which I accept unreservedly, I do not find there
was a valid reason for Ms Southern’s dismissal.
(b) whether the person was notified of that reason
[2025] FWC 725
8
[29] It is well established that consideration of s 387(b) is directed to whether or not the
dismissed person was notified of the valid reason for their termination, before the decision to
dismiss them was made, with it being expected that the notification of the valid reason is in
explicit terms.
[30] As I have not found there was a valid reason, further consideration of this criterion is
unnecessary.
(c) whether the person was given an opportunity to respond to any reason related to the
capacity or conduct of the person
[31] For the Commission to have regard to whether an employee has been given an
opportunity to respond to the reason for dismissal, there needs to be a finding that there is a
valid reason for dismissal.14 While so, it is also accepted that “an opportunity to respond”
amounts to an opportunity to provide reasoning to a decision maker that would, all things being
equal, allow a reasoned explanation to cause the decision maker to accept what is proffered and
to change from their foreshadowed path.15
[32] A provision in predecessor legislation, requiring there not be dismissal until “the
employee has been given an opportunity to defend himself or herself against the allegations
made”, has been held to be a requirement not needing any particular formality, being “intended
to be applied in a practical, common sense way so as to ensure that the affected employee is
treated fairly.16 Where the employee is aware of the precise nature of the employer’s concern
about his or her conduct or performance and has a full opportunity to respond to this concern,
this is enough to satisfy the requirements of the section”.17
[33] Ms Southern was notified of her dismissal in advance of it occurring, being given written
notice on the subject. Given that I have not found there was a valid reason for her termination
of employment, consideration of this criterion is a neutral factor in my overall determination of
whether hers was an unfair dismissal.
(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
[34] Although Ms Southern was only told of the decision to dismiss her once it had been
made, she had the opportunity to briefly respond, however with the opportunity being limited,
both by time and a lack of clarity about the reasons for her termination of employment.
[35] Ms Southern was not aware that she would be in need of a support person when she was
called into the meeting with the Respondent. Notwithstanding, she did not ask for a support
person to be present consideration of this criterion is again a neutral factor in my overall
determination of whether this is an unfair dismissal.
(e) if the dismissal related to unsatisfactory performance by the person—whether the person
had been warned about that unsatisfactory performance before the dismissal
[2025] FWC 725
9
[36] No allegations of unsatisfactory performance have been directed to Ms Southern and so
consideration of this criterion is also a neutral matter in my determination as to whether Ms
Southern was unfairly dismissed.
(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
[37] There is no evidence before me that would suggest the size of the employer’s enterprise
likely impacted or did impact on the procedures it followed in effecting Ms Southern’s dismissal
and so this criterion is a neutral consideration in my overall determination of whether hers was
an unfair dismissal.
(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
[38] There is no evidence before me as to the absence or otherwise of dedicated human
resource management specialists or expertise in the enterprise of Lucky 88 Enterprises and so
this criterion is also a neutral consideration in my overall determination of whether hers was an
unfair dismissal.
(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
[39] Aside from the matters above, I take into account that at the time of the hearing, Ms
Southern was 50 years of age18 with it being accepted that people above the age of 45 generally
have some greater difficulty in obtaining replacement employment. I also take into account that
when Ms Southern came to be originally employed, she relocated from Adelaide to Melbourne
and that she remains in Melbourne because she was unable to afford to relocate.
Conclusion on the s.387 criteria
[40] After considering each of the criteria within s 387, I am not satisfied there was a valid
reason for Lucky 88 Enterprises’ dismissal of Ms Southern.
[41] The FW Act requires the Commission to consider whether a dismissal was harsh, unjust
or unreasonable by taking into account the matters at ss 387 (a) to (h). The meaning of the term
‘harsh, unjust or unreasonable’ was considered by the High Court of Australia in the matter of
Byrne and Frew v Australian Airlines Limited:
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not
harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the
concepts will overlap. Thus, the one termination of employment may be unjust because
the employee was not guilty of the misconduct on which the employer acted, may be
unreasonable because it was decided upon inferences which could not reasonably have
been drawn from the material before the employer, and may be harsh in its consequences
[2025] FWC 725
10
for the personal and economic situation of the employee or because it is disproportionate
to the gravity of the misconduct in respect of which the employer acted.”19
[42] It has been further held that a dismissal may be unjust, because the employee was not
guilty of the misconduct on which the employer acted; unreasonable, because it was decided
on inferences which could not reasonably have been drawn from the material before the
employer; and/or harsh, because of its consequences for the personal and economic situation
of the employee or because it is disproportionate to the gravity of the misconduct.20
[43] I find that Ms Southern’ dismissal was an unfair dismissal, being each of harsh, unjust
and unreasonable. It is harsh and unjust as there is no apparent valid reason for her dismissal
and it is unreasonable since the former employer could have discussed its business situation
with Ms Southern in order to find a mutually acceptable alternative to dismissal, but chose not
to.
REMEDY
[44] The sections of the Act dealing with remedy once a finding of unfair dismissal has been
made are set out in ss 390 to 393.
[45] Pursuant to s 390(3), an order for the payment of compensation to a person must not be
made unless the Commission “is satisfied that reinstatement of a person is inappropriate” and
the Commission “considers an order for payment of compensation is appropriate in all the
circumstances of the case.”
[46] Ms Southern does not argue that reinstatement should be considered by the Commission
in the event of a finding of unfair dismissal. After reviewing the evidence and other material
before the Commission I concur that in this case, reinstatement would be inappropriate.
Compensation – what must be taken into account in determining an amount?
[47] Having determined that reinstatement is inappropriate, compensation may only be
ordered if the Commission considers an order for payment of compensation is appropriate in
the circumstances of the case (s 390(3)(b)). That is, an order for compensation is not automatic
if reinstatement is found to be inappropriate, and is instead a discretion to be exercised, subject
to certain further consideration. In this regard, s 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;
[2025] FWC 725
11
(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.”
[48] I consider each of these criteria and the circumstances of the case below.
Effect of the order on the viability of the Respondent’s enterprise
[49] There is no material before me that would enable a finding of any type about the effect
of an order for compensation on the viability of the Respondent’s enterprise.
Length of the Applicant’s service
[50] Ms Southern’s employment, first with the original entity, Precise Training/Wellington
Park Kennels and second with Lucky 88 Enterprises was not long. She commenced with the
first entity on 27 March 2023, and was employed for a total period of slightly more than 18
months. This is neither exceptionally lengthy employment nor very short employment. Because
of this, her length of employment does not compel a change in the amount of compensation I
would order.
Remuneration that the Applicant would have received, or would have been likely to receive,
if the Applicant had not been dismissed
[51] Determination of the anticipated period of remaining employment with the Respondent
that the Applicant may have had in Ms Southern’s case has some difficulties.
[52] If she had not been dismissed, Ms Southern’s employment is likely to have continued
for some time. Even though she had some difficulties with her employer, there was a financial
imperative for her to continue working as she did, at least until she was able to obtain suitable
alternative employment. That imperative would be reinforced by the fact that she had moved
from Adelaide to Melbourne and a return would incur cost.
[53] By late September 2024, when Ms Southern was given notice of her termination of
employment, she considered the workplace to be toxic, which speaks to the likelihood that the
employment relationship would not continue indefinitely. A person who feels they are not
valued by their employer or is being marginalised in the workplace would likely seek alternative
employment. While it could be argued that in the circumstances, there would be some doubt
Ms Southern’s employment would have continued for six months or longer. the fact of the
matter was that by 20 January 2025 when the hearing of her application was convened, being
more than four months after her termination of employment, Ms Southern had still not obtained
full-time employment at the same or higher wage rate as she was paid by Lucky 88 Enterprises.
[2025] FWC 725
12
[54] These considerations lead me to the view that the anticipated period of employment is
six months; that is, until mid-April 2025.
Efforts of the Applicant to mitigate the loss suffered by the Applicant because of the dismissal
[55] Ms Southern related to the Commission the effort she had taken to obtain further
employment after being dismissed, which included seeking and obtaining alternative
employment within the notice period (noting that it is for less hours and less pay and is a casual
position). I am satisfied those efforts are sufficient for the purposes of the obligation she had to
mitigate the loss she suffered because of her dismissal.
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
[56] Ms Southern’s evidence is that she obtained alternative employment before her
termination of employment from Lucky 88 Enterprises took effect and remained in that
employment at the date of the hearing. That employment commenced on 20 October 2023 and
involved working as a casual employee for an animal shelter. In her new employment Ms
Southern works three shifts per week, as well as being available for undertaking on-call work,
getting paid when she is called out.21 She estimates that in the period until the date of the
hearing, she had been working an average of between 35 and 38 hours per week.22 Despite
being a casual rate of pay, the rate was about $2.50 per hour is less than the hourly rate she was
receiving from Lucky 88 Enterprises.23 Further, her new employment, being casual
employment, did not give her access to paid leave. Ms Southern continues to look for alternative
and better paying employment.
[57] Given that I do not have precise information about the payments made to Ms Southern
in her new employment and only have general evidence on the subject and that I have found
the anticipated period of employment is six months I consider it more appropriate for the
purposes of this criterion to estimate the amount of remuneration likely to be received by Ms
Southern in a six month period (which in this case would end on 13 April 2025). I consider that
use of this estimate serves both parties, inasmuch as it allows an estimate to be made about the
deduction for remuneration earned elsewhere for the whole anticipated period of employment.
I do not consider that a use of this estimate would skew my determination of compensation
unfairly in the direction either of the Applicant or the Respondent.
[58] My calculation of the amount of remuneration likely to be received by Ms Southern in
the six month period following her dismissal by Lucky 88 Enterprises is set out in the table
below.
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
[59] I rely upon my comments above in relation to calculation of the amount of remuneration
likely to be received by Ms Southern in a six month period.
Other relevant matters
[2025] FWC 725
13
[60] I do not consider there are other relevant matters to be taken into account in setting an
appropriate order for compensation.
Compensation – how is the amount to be calculated?
[61] The well-established approach to the assessment of compensation in unfair dismissal
matters 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).24
The approach and Sprigg reasoning has been confirmed several times in Full Bench decisions,
including in ERGT Australia Pty Ltd v Kevin Govender.25
[62] The approach in Sprigg is as follows:
Step 1: Estimate the remuneration the Applicant would have received, or have been
likely to have received, if the employer had not terminated the employment
(remuneration lost).
Step 2: Deduct monies earned since termination.
Step 3: Discount the remaining amount for contingencies.
Step 4: Calculate the impact of taxation to ensure that the employee receives the actual
amount he or she would have received if they had continued in their employment.
Step 1
[63] At the time of her dismissal, Ms Southern was paid at an hourly rate of $35.90 for 37.5
hours per week. Her employment offer was for full-time position with a salary of $70,000.26
[64] It follows that my estimation of the remuneration Ms Southern would have received or
have been likely to have received if her employment had not been terminated is $35,000 for a
six month period. Added to that amount is $4,025, being the amount of statutory superannuation
contributions Ms Southern would have received for the anticipated period of employment on
the basis that the applicable rate is 11.5% from 1 July 2024.
Step 2
[65] The second step in Sprigg requires the deduction of monies earned since termination,
with the only exclusions being monies received from other sources and unrelated to work done.
As set out above Ms Southern obtained alternative employment shortly after being dismissed.
The amount she would have earned until the end of 6 months after being dismissed by Lucky
88 Enterprises (that is, 13 April 2025 and a total of 25 weeks) is about $23,380 in wages, net of
the casual loading for the purposes of equivalence with her assumed earnings with the
Respondent, and the amount of $2,689 for the purposes of superannuation.
[66] These amounts are calculated as follows;
[2025] FWC 725
14
Hourly rate with Respondent: $35.90
New employment pays $2.50 per hour; ie: $33.40
Comparator non-casual rate; ie less 25%
casual loading
$26.72
35 hours per week: $935.20
25 weeks $23,380
11.5% superannuation $2,689
Step 3
[67] It is necessary to consider the impact of both favourable and unfavourable contingencies
on the amounts likely to be earned by the applicant for the remainder of the anticipated period
of employment,27 noting that it may not be appropriate to deduct contingencies if all of the
projected period of continued employment has passed.28 In Ms Southern’ case, I find there are
none that ought to be taken into account in this matter.
Step 4
[68] I have considered the impact of taxation but have elected to settle a gross amount as set
out in the table below and the compensation to be ordered will be subject to taxation according
to law.
[69] 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.”29
[70] I am satisfied that the compensation to be ordered by me is proportionate to the
circumstances of the case. In this regard, I consider the total quantum to be appropriate, with
no deductions either for efforts to obtain further employment, or post-termination earnings.
Compensation – is the amount to be reduced on account of misconduct?
[71] If I am satisfied that misconduct of the applicant contributed to the employer’s decision
to dismiss, I am obliged by s 392(3) of the FW Act to reduce the amount I would otherwise
order by an appropriate amount on account of the misconduct.
[72] In determining the amount by which it is appropriate to reduce an order for
compensation on account of misconduct, the Commission must consider, amongst other things,
whether the applicant engaged in misconduct and, if so, whether that misconduct contributed
to the Respondent’s decision to dismiss the person. I have not identified misconduct on the part
of Ms Southern, therefore no deduction is made for that purpose.
[73] My calculation of the amount payable to Ms Southern is set out in the following table:
1. Estimate the amount the
employee would have received
or would have been likely to
26 weeks projected lost income
at the rate of $1,346.25 per
week.
$35,003
[2025] FWC 725
15
receive if the employment had
not been terminated,
Employer superannuation
contribution – 11.5% (as
applicable after 1 July 2024)
+ $4,025
Subtotal $39,028
Deduction attributable to
mitigation efforts
$0
Deduction for misconduct $0
2. Deduct monies earned
since termination,
Hourly rate at the Respondent =
$35.90
Less $2.50 = $33.40
35 hours per week = $1,169
Less 25% casual loading (for the
purposes of comparison) =
$935.20
25 weeks at $935.20 = $23,380
Plus superannuation = $26,89
- $26,069
3. Deductions for
contingencies,
$0
TOTAL $12,959
4. Calculate any impact of
taxation,
To be taxed
according to law
5. Apply the legislative cap. The compensation cap is the
lower of;
• half of the employee’s
annual wage OR
• the compensation cap, which
is $87,500 for 2024-25
In Ms Southern’s case the
compensation cap is $35,000
being $1,346.25 x 26.
Does not exceed the
compensation cap.
[74] An order for compensation consistent with the above table will be issued by me at the
same time as this decision.30 The order will require a payment of wages in the amount of
$11,622, to be taxed according to law, and of superannuation in the amount of $1,337, to be
paid into Ms Southern’ nominated superannuation fund, each to be paid within 14 days of the
date of this decision.
[2025] FWC 725
16
COMMISSIONER
Appearances:
Ms K. Southern, for the Applicant
Hearing details:
20 January.
2025.
Printed by authority of the Commonwealth Government Printer
PR785175
1 Transcript, PN 45 – 50.
2 Applicant’s Witness Statement, p.1.
3 See the discussion of coverage of the Miscellaneous Award as it applies to the pet boarding industry in United Voice v Gold
Coast Kennels Discretionary Trust t/a AAA Pet Resort [2018] FWCFB 128.
4 Transcript, PN 123.
5 Selvachandran v Peteron Plastics (1995) 62 IR 371, 373.
6 Robe v Burwood Mitsubishi Print R4471 (AIRCFB, Ross VP, Polites SDP, Foggo C, 11 May 1999).
7 Miller v UNSW [2003] FCAFC 180 (Gray J), [13].
8 Selvachandran v Peteron Plastics (1995) 62 IR 371, 373.
9 DHB, p.37.
10 Transcript, PN 53.
11 Applicant’s Witness Statement, p.1.
12 Transcript, PN 55.
13 Applicant’s Outline of Submissions, [14].
14 Chubb Security Australia Pty Ltd v Thomas (unreported, AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000)
Print S2679 [41].
15 Wadey v YMCA Canberra [1996] IRCA 568 cited in Dover-Ray v Real Insurance Pty Ltd [2010] FWA 8544; (2010) 204 IR
399 at [85].
16 Royal Melbourne Institute of Technology v Asher (2010) 194 IR 1; [2010] FWAFB 1200 at [26] citing Gibson v Bosmac
Pty Ltd [1995] IRCA 222; (1995) 60 IR 1 at 7 (Wilcox CJ).
17 Gibson v Bosmac Pty Ltd [1995] IRCA 222 (5 May 1995); (1995) 60 IR 1 at 7 (Wilcox CJ).
18 Transcript, PN 47.
19 [1995] HCA 24 (McHugh and Gummow JJ), [128].
THE F THE SEAL OF NOISSINRÓD WHOM
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb128.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwa8544.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwafb1200.htm
[2025] FWC 725
17
20 Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1,10 citing Byrne v Australian Airlines Ltd [1995] HCA 24
(McHugh and Gummow JJ), [128].
21 Transcript, PN 105.
22 Transcript, PN 105 – 117/
23 Transcript PN 115 – 116.
24 (1998) 88 IR 21.
25 [2021] FWCFB 5389, [35].
26 Transcript, PN 105.
27 Enhance Systems Pty Ltd v Cox [2001] AIRC 1138, [39]
28 Bowden v Ottrey Homes [2013] FWCFB 431, [54].
29 Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206, [17].
30 PR785370.
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwcfb5389.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/awardsandorders/pdf/pr785370.pdf
