Compensation for unfair dismissal

To recover compensation for unfair dismissal, an applicant is required to demonstrate financial loss; thus

“Conclusion

[64] In the result there was no valid reason for the dismissal related to Ms Sawan’s capacity or conduct, a consideration which weighs slightly in her favour. The other mandatory considerations discussed above either way neutrally or do not arise in the circumstances. Weighed against the absence of a valid reason is the fact that Ms Sawan’s employment would have come to an end on 15 October 2021 by reason of the notice of resignation given by her on 17 September 2021. The steps taken by Victoria Police to put Ms Sawan back in the position she would have been in but for its erroneous intervention following the notice of resignation are significant in the overall assessment and outweigh the absence of a valid reason. I am therefore not satisfied that Ms Sawan’s dismissal was harsh, unjust or unreasonable. The dismissal was therefore not unfair. Consequently, the application should be dismissed.

[65] However, even if I am wrong in this conclusion and there is some unfairness in dismissal of Ms Sawan by Victoria Police (and bearing in mind that the dismissal constituted the erroneous truncation of the notice period given in a resignation tendered by Ms Sawan which was not a forced resignation) I do not consider it is appropriate to order any remedy in the circumstances. My reasons for this conclusion may be briefly stated.

[66] As to reinstatement, firstly, as Ms Sawan resigned from her employment with Victoria Police by notice, which would have taken effect on 15 October 2021, an order for reinstatement would operate well beyond the period of employment that Ms Sawan had indicated by her resignation that she wanted to remain employed. That Ms Sawan now regrets having tendered her resignation is not a reason to order reinstatement and to override what was otherwise or would otherwise have been a valid and effective resignation. Secondly, but for the erroneous intervention by Victoria Police, Ms Sawan’s application for a remedy could only have proceeded upon the basis that she was dismissed because she was forced to resign. For the reasons earlier given that case would have failed, consequently the question of remedy would not have arisen. For these reasons reinstatement of Ms Sawan would be inappropriate.

[67] As to compensation, a starting point for the assessment of compensation would be to assess the remuneration that Ms Sawan would have received or would likely have received if she had not been dismissed. This would involve assessing the period of likely ongoing employment but for the dismissal. In many cases such an assessment involves a degree of speculation but in this case the precise period of likely ongoing employment is known. But for the erroneous intervention by Victoria Police, the employment of Ms Sawan by Victoria Police would not have continued beyond 15 October 2021. The steps taken by Victoria Police, earlier discussed, to rectify the financial position of Ms Sawan so as to put her in the position she would have been in but for its erroneous intervention means that the assessment of any compensation taking into account all of the matters required by s 392(2) of the Act would result in an outcome of zero. This is because Ms Sawan has now not suffered any financial loss by reason of the dismissal.

[68] Compensation under the Act can only be ordered if it is appropriate in all the circumstances. Given the absence of any financial loss consequent upon Ms Sawan’s dismissal by Victoria Police, it would plainly be inappropriate to make a compensation order.”

 

Extract from Sawan v Victoria Police (2022) FWC delivered 26 April 2022 per Gostencnik DP