*** Permission to appeal this decision was refused by a Full Bench of the Commission on 21 May 2026. An extract of the decision at first instance which follows contains an analysis of the principles which apply when calculating compensation for unfair dismissal.
“Consideration of the Merits
[39] The Applicant submitted that there was no valid reason for the termination. The
Applicant further submitted that she was not notified of any reason for dismissal, nor given an
opportunity to respond. Finally, the Applicant’s representative submitted that there was no
opportunity for the Applicant to have a support person and that there were no prior warnings
for any performance issues. The Respondent’s submissions in relation to s.387 were limited
and are set out below.
Section 387(a) – Valid reason for dismissal
[40] In assessing whether there was a valid reason for the Applicant’s dismissal, the reason
must be ‘sound, defensible or well founded.’3A reason which is ‘capricious, fanciful, spiteful
or prejudiced’ cannot be a valid reason.4 The onus is on the Respondent, in the current matter,
to discharge the conduct that there was a valid reason for dismissal, on the balance of
probabilities, in accordance with the principle established in Briginshaw v Briginshaw5
:
“The standard of proof remains the balance of probabilities but ‘the nature of the issue
necessarily affects the process by which reasonable satisfaction is attained’ and such
satisfaction ‘should not be produced by inexact proofs, indefinite testimony, or indirect
inferences’ …”
[41] The Applicant submitted that there was no valid reason for the dismissal as she had been
absent from work using her accrued sick leave to undergo chemotherapy (and had raised
concerns about incorrect payments regarding this). It was then submitted that she was dismissed
for her ‘lack of availability for rostering’, which was not a valid reason in the circumstances.
[42] The reason provided in the termination letter, which was sent shortly after Ms Mercer
had made a further enquiry in relation to the pay issues she was experiencing, was as follows:
“After careful consideration, we have determined that we are unable to accommodate your
current availability in line with the operational requirements of the service. Unfortunately, this
means we are no longer able to offer you ongoing employment.”
[2026] FWC 951
13
[43] The Respondent, in the very limited material provided, did not provide any material on
the reason for the dismissal. Her material merely stated that it was Ms Bowyer that was making
the decisions, and not her. Mrs Kapoor concluded that her actions were ‘lawful and reasonable’
and that the decisions regarding the Applicant’s employment were made by Ms Bowyer. This
argument, being the only one provided by the Employer, is inconsequential. In this matter it
does not matter whether it was Mrs Kapoor or Ms Bowyer making the decisions; the decisions
themselves reflect on the Employer. Mrs Kapoor, as the Director and Owner cannot merely
pass the consequences of a termination decision onto a subordinate. Nevertheless, the evidence
in this matter on the balance of probabilities, does not conclude that Ms Bowyer was the one
that made the decision in any case. There is evidence that Ms Bowyer had drafted the
termination letter, but I find that she was under the instruction of Mrs Kapoor to do so. The
draft termination letter was sent to Mrs Kapoor and she approved it.
[44] Further, Mrs Kapoor raised that Ms Mercer would often show on the roster as a ‘noshow’ when she was attending treatment. However, she failed to provide any evidence of this,
that is, she did not file any rosters or payroll evidence to demonstrate that this is what was
occurring. Accordingly, no weight is attributed to this.
[45] The Applicant was undergoing chemotherapy, which was approved by the Employer.
The Applicant had clearly informed the Employer of her cancer treatment schedule in advance
in order that the roster could be adequately managed. The Applicant was working, on a
fortnightly basis, four out of six shifts, which then changed to five out of six shifts near the date
of her termination. The Applicant’s payslip dated for the pay period 3 to 9 February 2025 details
her annual leave at 84.8683 hours and her personal leave at 47.4141 hours. This is a total of
132.2824 hours. The Applicant’s normal hours were 45 hours per fortnight; her initial
chemotherapy schedule had her working 30 of those hours. In other words, the Applicant on
the evidence clearly had more than enough accrued leave to cover the days where she could not
work due to the chemotherapy treatment; and was providing the Medical Certificates to the
Employer to support this. The Applicant was meeting her contractual obligations in
circumstances where she knew that there had to be certainty for the Employer in terms of the
rosters to ensure the adequate ratio of staff to children. There is no evidence that the Applicant
did anything in error; she appropriately informed the Employer of the necessity for her to
undergo cancer treatment and provided a schedule in advance, with Medical Certificates being
produced.
[46] Further, there was no evidence that the Applicant had any performance issues
whatsoever. Ms Bowyer, who had worked with Ms Mercer since 2019 when Ms Mercer
commenced at Little Ted’s, recounted in her evidence that Ms Mercer was “an exemplary
employee who was great at caring for, and educating, children. There was never any concern
regarding her performance or conduct.” Ms Bowyer had worked with Ms Mercer, both in Ms
Bowyer’s role as Lead Educator and in her new role as Centre Director.
[47] It was recognised that the Respondent was self-represented. However, as referred to,
she had previously been subject to Directions for the provision of material and had participated
in the jurisdictional Hearing before the Commission and therefore had some familiarity as to
responding to Directions and participating in the Hearing. Previous to this, she had been in
receipt of the Directions, and the Applicant’s responses, therefore, she had an understanding of
[2026] FWC 951
14
how these proceedings would be discharged. Some latitude was provided to her at the Hearing.
The Respondent however had been on notice that she could not present her case in terms of new
evidence at the Hearing. The Respondent put no material before the Commission supporting
that there was a valid reason for the dismissal; the only argument made by Mrs Kapoor was that
it was someone else (Ms Bowyer) and not her making the termination decision.
[48] This baseless termination of employment was in circumstances where the Employer
moved the responsibility for the ultimate decision of dismissal to the newly appointed Centre
Director (Ms Bowyer) who had been a close working colleague of the Applicant over her years
of employment. The Employer’s direction for Ms Bowyer to impose the dismissal and for her
having to be involved in this termination action, clearly caused her significant anguish as she
was aware of the circumstances of the Applicant. The deliberate action by the Employer in
endeavouring to shift responsibility for the dismissal decision to Ms Bowyer (where she
objected to preparing and presenting the termination letter) exacerbated the circumstances of
the dismissal for the Applicant.
[49] Accordingly, there was no valid reason for the dismissal, based on the evidence and
submissions before the Commission. The finding on this criteria is in favour of the Applicant.
Section 387(b) – Whether the Applicant was notified of that reason
[50] A 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 to the
alleged valid reason if found to exist under s.387(a).6
[51] As set out above, the Respondent did not have a valid reason to terminate the Applicant’s
employment. Section 387(b) contemplates an Applicant being notified of a valid reason.
Accordingly, if there is no valid reason, it logically follows that s.387(b) has no application
because there cannot be a notification of a valid reason if the reason for termination is not valid.7
Further, Ms Mercer’s evidence established that even if there was a valid reason, that at no time
before her receipt of the termination letter was she given notice that her employment may be in
jeopardy due to her availability. This further lack of procedural fairness is considered a factor
that weighs in favour of the Applicant.
Section 387(c) – Whether the person was given an opportunity to respond to any reason for
dismissal
[52] In Newton v Toll Transport Pty Ltd,
8
the Full Bench stated:
“[188] Section 387(c) focuses on provision of an opportunity to respond to a reason for
dismissal prior to the dismissal. The valid reason for dismissal upheld by the Deputy
President was not notified to Mr Newton before dismissal and he was not afforded an
opportunity to respond to the assertion that he had been dishonest, misleading and had
engaged in sinister conduct.
[189] The Deputy President took into account an irrelevant consideration in concluding
that any unfairness was ameliorated in the Commission proceedings. Any opportunity
to respond to a reason for dismissal must be afforded prior to the dismissal occurring. It
[2026] FWC 951
15
was not reasonably open to the Deputy President to conclude that the failure to provide
Mr Newton an opportunity to respond to the valid reason as found by the Commission
was a neutral consideration. Plainly it was a matter which sounded in favour of a finding
that the dismissal was harsh, unjust or unreasonable. The weight accorded to a failure
to comply with s 387(c) may hinge on whether an employee was deprived of the
possibility of a different outcome.” (emphasis added)
[53] In line with this case law, as above, Ms Mercer’s evidence established that at no time
before her receipt of the termination letter was she given notice that her employment may be in
jeopardy due to her absence on genuine approved sick leave. Consequently there was no ability
for her to respond as no reason was notified to her. This is similarly considered as a factor that
weighs in support of the Applicant.
Section 387(d) – Unreasonable refusal by the employer to allow the person to have a support
person present to assist at any discussions relating to dismissal
[54] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable,
the Commission must take into account any unreasonable refusal by the Employer to allow the
person to have a support person present to assist at any discussions relating to the dismissal.9
[55] There was no evidence before the Commission regarding this factor. The Employer did
not undertake any discussion regarding the reason for termination and inherent to that, the
Respondent therefore did not allow Ms Mercer to have a support person present at any
discussion as no notification of the reason for termination or a discussion in that regard
occurred. This is considered as a factor that is in favour of the Applicant given the lack of a
procedure in relation to the termination of employment.
Section 387(e) – If the dismissal related to unsatisfactory performance by the Applicant–
whether the Applicant had been warned about that unsatisfactory performance before the
dismissal
[56] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable,
if the dismissal related to unsatisfactory performance by the person, the Commission must take
into account whether the person had been warned about that unsatisfactory performance before
the dismissal.10 Unsatisfactory performance is more likely to relate to the employee’s capacity
to do the job, than their conduct.11
[57] The Respondent characterised the reason for dismissal in the termination letter as related
to Ms Mercer’s ‘current availability’. There was no evidence that the Respondent had raised
any issues with the Applicant in any manner, whether formal or not before her dismissal.
Further, in relation to the Applicant’s conduct on the job, the evidence demonstrated that she
was an “exemplary” worker (Ms Bowyer’s evidence). The Employer, Mrs Kapoor, did not
contest this. This factor weighs in favour of the Applicant.
[2026] FWC 951
16
Sections 387(f) and (g) – 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 the absence of
dedicated human resource management specialists or expertise in the enterprise
[58] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable,
the Commission must take into account the degree to which the size of the Employer’s
enterprise would have impacted the procedures followed in effecting the dismissal.12 Further,
in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the
Commission must take into account 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.13
[59] As set out above, the Respondent, was a Small Business Employer and therefore not a
significantly sized Employer. There was no evidence that the Employer had access to human
resources or industrial relations advice or had sought such expertise to assist with the process.
It is also recognised that the Respondent, as the Director of the company, had a large range of
duties and responsibilities in running the business and holding the statutory role for the
responsibility in conducting the Childcare Centre. However, the factors in ss.387(f)-(g) of the
Act cannot be used as a way to shield a business from reasonable scrutiny in relation to using a
procedurally fair process.14 In addition, the Employer cannot abdicate this responsibility.
Similarly, the size of an Employer’s business cannot be a significant mitigating consideration
when dismissing an employee in a process that is “devoid of any fairness.”15 Given the
Respondent’s complete lack of process to dismiss the Applicant as detailed above (apart from
merely sending the termination letter); the Respondent cannot claim the size of the business and
absence of human resource specialists as a mitigating factor in not following a fair process. For
this reason, these factors weigh in favour of the Applicant.
Section 387(f) – other relevant matters
[60] Mr Tuxworth submitted on behalf of the Applicant, that the Commission should also
take into account that the Applicant had over five years of unblemished service at Little Ted’s.
The Applicant also submitted that she was 65 years old and she intended to work at the Centre
until her retirement; consequently, it was submitted that as a result of the dismissal she is also
unlikely to ever qualify for long service leave given the Applicant’s age. It was submitted that
endeavours have been made by the Applicant to obtain further employment but that to date this
has been unsuccessful.
[61] Further, the Applicant’s representative submitted that the Commission should take into
account the fact that the Applicant was terminated by the Employer when it was well known by
all that Ms Mercer was undergoing cancer treatment. Ms Bowyer knew about the Applicant’s
cancer treatment and gave evidence that this was spoken about with Mrs Kapoor. Further, there
was evidence filed with the Commission that Ms Mercer had directly messaged Mrs Kapoor
that she was undergoing cancer treatment. Mrs Kapoor cannot deny that she was aware of the
health circumstances of the Applicant. To this point, Mr Tuxworth submitted that the
Commission’s decision in Chanintorn v Urban Orchard Food Pty Ltd should be taken into
account as to the harshness of the Employer’s termination:16
[2026] FWC 951
17
“[68] Further, the absence of management specialists or other expertise, and the
informality that would understandably exist in a small business, could not provide
justification for the unnecessarily undignified implementation of a dismissal by way of
a telephone call. This unnecessarily harsh approach was compounded by the
extraordinarily heartless disregard for the personal circumstances of another human
being who was suffering from pancreatic cancer”
[62] Mr Tuxworth also submitted that the Applicant was dismissed by email, which should
be taken into account as to the harshness of the dismissal given prior decisions of the
Commission have found that terminations should be conveyed personally.17
[63] The Applicant further only received one week of notice, when due to her length of
service and her age, the minimum she should have received is five weeks. The Applicant
submitted that 10 weeks after her dismissal, and after lodging this application, she was paid
four weeks of notice. However, it was submitted that there were errors with this as she was
owed five weeks, and she worked 22.5 hours per week, rather than 15 hours which is the amount
that was used in error for the calculations of the notice period. While applications pertaining to
the payment of unpaid entitlements are considered under a separate jurisdiction, this has been
taken into account as a relevant matter as to the harshness of the termination of employment as
a result of the Employer’s failure to pay these obligations for a significant period of time.
Finding
[64] As set out above, the Respondent did not have a valid reason for dismissing the
Applicant. In addition, based on the reasons set out above, there is an unfairness in the
Applicant’s dismissal based on the fact that no proper process was followed in relation to the
dismissal. The dismissal of Ms Mercer was egregious and there is nothing to redeem the
Employer in the circumstances of her dismissal. The Applicant’s dismissal was harsh given her
personal health circumstances which had been disclosed to the Respondent (a plan had been
organised with the Employer for this purpose, and the Applicant had more than enough leave
to cover for such). In addition, the dismissal was harsh in circumstances where payment of the
Applicant’s entitlements was significantly delayed. Further, the dismissal was unjust given that
she was dismissed via email without any prior indication that this was being considered and
when she had raised payment issues earlier that day (after multiple times previously indicating
such). It was unreasonable also, as no proper process was followed by the Respondent in
relation to the dismissal. The Applicant’s dismissal, for all of the above reasons, was harsh,
unjust, and unreasonable, and the Applicant is entitled to an unfair dismissal remedy.
Remedy
[65] Having found that the Applicant was protected from unfair dismissal, and that her
dismissal was not for a valid reason and was harsh, unjust and unreasonable it is necessary to
consider the appropriate remedy that should be granted to her.
[66] Section 390(3) of the Act provides that the Commission must not order the payment of
compensation unless it is satisfied both that reinstatement of the person is not appropriate, and
that it considers an order for the payment of compensation to be appropriate in all the
circumstances of the case.
[2026] FWC 951
18
[67] The Full Bench Decision of Nguyen established that reinstatement might be
inappropriate in a whole range of circumstances,
18 including where there has been a loss of trust
and confidence in the employment relationship.19
[68] Given the parties’ material, it is clear that the relationship between the parties is
incapable of maintaining a productive working relationship. The Applicant did not seek
reinstatement in her submissions stating a loss of trust and confidence in the Respondent. The
Respondent made no submissions in relation to remedy. Reinstatement in this matter is not an
appropriate remedy.
Compensation
[69] Given that reinstatement is not appropriate in the circumstances, it is necessary to assess
whether an amount of compensation should be awarded. In relation to awarding compensation,
the various considerations under s.392(2) must be taken into account. The Sprigg20 formula
provides the authoritative method of assessing compensation to be awarded. The Sprigg
formula has been affirmed by several Full Bench decisions of the Commission, and these have
been taken into account in addressing the following criteria.21
Section 392(2)(a) – the effect of the order on the viability of the employer’s enterprise
[70] The originally set Directions sought submissions from the parties that included an
extract of s.392 of the Act. The parties provided no submissions with respect to this
consideration.
[71] It is noted, that in addition to this Centre, Mrs Kapoor operates another Childcare Centre
and no information was provided that the order would effect the viability. Further to this, the
Applicant worked part-time and received a moderate hourly wage. This is a neutral
consideration in the circumstances.
Section 392(2)(b) – the length of the person’s service with the employer
[72] The Applicant had been employed by the Respondent for over five years. This is a
relatively significant period of employment. The Applicant submitted that she had an
unblemished record at Little Ted’s and there was no evidence to the contrary. Therefore, this is
considered to be a factor weighing in favour of a higher consideration of compensation.
s.392(2)(c) – the remuneration that the person would have received, or would have been likely
to receive, if the person had not been dismissed
[73] The Applicant submitted that she intended to continue working at Little Ted’s until her
retirement (which she stated was not for at least another two years); therefore on the evidence,
at the time of termination, it is considered likely she would have continued to work the next 26
weeks after her dismissal, which is the applicable maximum cap of compensation in this matter.
The Applicant submitted that she was regularly rostered to work 22.5 hours per week (this is
also the conclusion reached on the evidence in this matter), and she worked at a rate of $29.27
[2026] FWC 951
19
per hour. The Applicant’s wage over a 26 week period would have been $17,122.95. This is a
case where the award of the maximum compensation is appropriate.22
Section 392(2)(d) – the efforts of the person (if any) to mitigate the loss suffered by the person
because of the dismissal; s.392(2)(e) the amount of any renumeration earned by the person
from employment of other work during the period between the dismissal and the making of the
order for compensation; and s.392(2)(f) – the amount of any income reasonably likely to be so
earned by the person during the period between the making of the order for compensation and
the actual compensation
[74] The Applicant’s evidence was that she had been endeavouring to find other
employment, after the callous dismissal, however she stated that given her age and the fact that
she was undergoing cancer treatment. This understandably, as would have been known to the
Employer, made that task difficult. She stated she had been applying for jobs in the months of
May, June, July, August, and October 2025 and January 2026. However, she had not been
successful in obtaining any of these positions; consequently the only income received was from
Centrelink payments. I find that the Applicant had made efforts to mitigate the loss suffered,
and due to no fault of her own, she was unable to secure other employment.
Section 392(2)(g) – any other matter that the FWC considers relevant
[75] In terms of further harshness, the Applicant at the time of her dismissal was not paid the
correct amounts for sick leave taken and the notice period (in accordance with s.117 of the Act).
The Applicant submitted that, many weeks after the dismissal, she was only paid four weeks
wages in lieu notice at a rate of 15 hours per week. She stated she was owed a minimum of five
weeks (due to her length of service and age) at a rate of 22.5 hours per week as this was her
regular hours. The Respondent did not dispute in these proceedings that the Applicant’s regular
working hours were 22.5 per week. The Applicant therefore submitted that it should be taken
into account by the Commission that her wages in lieu of notice was paid the significant period
of 10 weeks after the dismissal, was miscalculated, and that this had still not been corrected as
at the date of the Hearing. To this point, Mr Tuxworth, relied on the reasoning in the case of
Burke v Suncorp Group Pty Ltd23
, stating that this decision considered that deductions do not
have to be made if the Applicant has not received payment in lieu of notice for a significant
period of time, as what occurred with Ms Mercer:
“[150] At the point he was dismissed, Mr Burke head been employed for a total period of
almost seven years, although there had been a break in service. His most recent period
of service was approximately three years and four months. Mr Burke was told that he
would be paid two weeks wages in lieu of notice on termination of his employment in
August 2014. That amount was not paid until November 2014. At that time, Mr Burke
was paid the two weeks in lieu of notice set out in his termination letter and a further
amount of one week and two days wages when Ms Rowan realised that not only had Mr
Burke not been paid notice at the time of his dismissal, but the period had also been
miscalculated.
[151] While I accept that this oversight was not intentional I do not doubt that it would
have caused Mr Burke significant difficulty given that he was unemployed even at the
point this application was heard. Dismissed employees should not have to wait for
[2026] FWC 951
20
considerable periods to receive their minimum statutory entitlement to payment in lieu
of notice and the impact of the failure of Suncorp to pay this amount in a timely fashion
is a matter that I have taken into account in calculating compensation. This is
particularly so given that the notice payment was not made until the period over which
I have assessed compensation had elapsed.
[152] Had Mr Burke remained in employment for the 8 week period he would have
earned the gross amount of $8,400. Given my findings about the failure of Suncorp to
properly consider whether health issues had impacted on Mr Burke’s conduct and work
performance, and that Mr Burke was dismissed for poor work performance rather than
misconduct, I do not consider it appropriate to make a deduction in this regard. Given
the late payment of Mr Burke’s statutory entitlement to payment in lieu of notice and
that the payment was made outside the time period for which I have determined that Mr
Burke would likely have remained in employment, I make no deduction for the period
of notice. In my view, the requirement to take such amounts into account does not
necessitate that they are deducted from an award of compensation” (emphasis added)
[76] On the materials before the Commission, the unpaid wages for sick leave and public
holiday prior to termination have also not been addressed, as previously set out in decision.
Accordingly, the absence of the Employer making these payments for a significant period of
time (and not to the correct amount) is taken into account in judging the appropriate amount as
arrived at after the Sprigg calculation is made. This factor of incorrect payment weighs in
support of the Applicant.
Section 392(3) – Misconduct reduces amount
[77] There were no allegations of misconduct. Therefore, this factor is considered neutral.
Order of compensation – calculation
[78] The Applicant sought $17,122.95 (gross) plus superannuation. The Applicant noted that
this was the maximum that could be awarded. She sought this figure based on her rate of $29.27
per hour for 22.5 hours per week for 26 weeks; as the Applicant was out of work for the totality
of this period (and for more). This was despite her applying for other roles, a number of which
were applied for during the 26 week period. As noted above, the Respondent did not put any
evidence, nor submissions before the Commission on the issue of remedy.
[79] The assessment of compensation involves a four-step process. However, this is not a
substitute for the words in the Act:
“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). I am also required to consider the length of service with the
employer24 and the ability to find a new role as a relevant factor in calculating
compensation per s392(2).
Step 2: Deduct monies earned since termination.25
[2026] FWC 951
21
Step 3: Discount the remaining amount for contingencies.26
Step 4: Calculate the impact of taxation to ensure that the employee receives the actual
amount they would have received if they had continued in their employment.”
[80] In accordance with the Sprigg calculation, I must first determine the estimated
remuneration that the Applicant would have received if she were not dismissed. It is clear from
the evidence and submissions of the Applicant that under the first limb of the Sprigg formula,
the Applicant would have received $17,122.95 (gross), less applicable taxation, plus
superannuation for the 26 weeks she was out of work after the dismissal. The Applicant received
the incorrect amount of payment in lieu of notice, and this was only after a significant period
of 10 weeks after the dismissal. In accordance with Burke v Suncorp Group Pty Ltd, “I make
no deduction for the period of notice. In my view, the requirement to take such amounts into
account does not necessitate that they are deducted from an award of compensation”.
27 Further,
from the evidence, after the change of ownership, Ms Mercer was not being adequately paid
her sick leave, nor was it being accrued accurately while she remained employed (the payslips
submitted by the Applicant demonstrated that at no point was she accruing annual or personal
leave while Little Ted’s was under the ownership of Mrs Kapoor; no evidence was filed by the
Employer indicating otherwise). This takes into account the Applicant’s exemplary service
record of over five years with Little Ted’s, and her inability to obtain new employment despite
her efforts.
[81] While Ms Mercer does have cancer, and was undergoing treatment at the time of
dismissal, there was no evidence to demonstrate that during the 26 weeks after the dismissal
that she would not have been able to continue to meet her employment contract. That is, the
Applicant had a fairly significant period of leave accrued during her five years of service, and
before her dismissal she was clearly dedicated to her employment as she was working at least
four of her six regular shifts every two weeks despite going through chemotherapy treatment.
Therefore, no deductions need to be made in this matter.
[82] It is noted that in accordance with s.392(4) of the Act, that the amount of compensation
cannot include a component for shock, distress or humiliation, or other analogous hurt, caused
to the person by the manner of the person’s dismissal.
[83] There is nothing to redeem the Employer in this case. The dismissal was wanting in
every facet of required merits and procedural fairness. The Applicant had been employed for
over five years and was an admired educator of the children at the Centre. She was in her mid60s at the time of the termination of employment and had anticipated working in her job until
her retirement. There was no evidence of any performance or conduct issues with her
employment. In fact, the Applicant had exhibited her significant commitment to working
around her chemotherapy treatments until this Employer’s abrupt implementation of the
termination. She had been a valued member of the staff. The Employer had not consulted with
the Applicant in any way before dismissing her. Mrs Kapoor had made no enquiry of the
Applicant as to Applicant’s required ‘chemo plan’. In the circumstances of the Applicant’s
required treatment she had enough leave to cover the legitimate absence. It was also a known
fact in the consideration of the Employer’s operations, that they had casual staff to cover the
leave of staff. This casual employment could have been utilised to cover Ms Mercer’s period
of treatment and allow her to continue in her employment.
[2026] FWC 951
22
Conclusion
[84] Taking into account all of the circumstances, and the omission of any procedurally fair
steps being provided to the Applicant, in fairness, the amount of compensation awarded for all
of the reasons as set out is $17,122.95 plus superannuation. A separate Order (PR797878) is
made for the payment of this amount within 14 days of the date of this decision.
Ms Gail Mercer v Sharn Enterprise Pty Ltd – [2026] FWC 951