These passages from an appeal decision of the Fair ork Commission contain very useful (and forensically interesting) observations about how the Commission must address the hypothetical question of what earnings a person would have earned had he or she not been dismissed which is a bedrock question to the task of assessing compensation for financial loss.
“Ground 2 – Compensation
[20] The Deputy President applied the well-known ‘Sprigg formula’ to assess the compensation to be awarded to Ms Tamati under s 392 of the Act. As the Deputy President explained, the “first step is to consider s 392(2)(c) and determine what Ms Tamati would have received, or would have been likely to receive, if she had not been dismissed. This requires an assessment of how long she would have remained at MQT and the remuneration she would have earned”.20
[21] The Deputy President correctly observed that “some speculation is required in determining what Ms Tamati would have earned had she not been dismissed”.21 The Deputy President gave reasons for his conclusion that Ms Tamati “would have continued to work for the company for some years” had she not been dismissed.22 The Deputy President then noted that Ms Tamati did not receive any notice of termination, or payment in lieu of notice, from MQT and was out of work for four weeks before finding another job.23 This loss equated to
$9,768. Ms Tamati also had an ongoing loss of $27,000 per year because she was earning
$27,000 less in her new job than in her job with MQT. The Deputy President gave reasons for his assessment that it would take Ms Tamati two years to regain the salary she was earning at MQT.24 Putting this together, the Deputy President found that Ms Tamati’s total loss was
$63,768 ($27,000 x 2 + $9,768 = $63,768). After considering the balance of the matters in s
392 and applying the compensation cap in s 392(5), the Deputy President ordered that compensation in the sum of $63,500 be paid to Ms Tamati.25
[22] MQT submits that the Deputy President made a significant error of fact in finding that it would take Ms Tamati two years to regain the salary that she was earning at MQT. We reject this contention. The Deputy President’s assessment that it would take Ms Tamati two years to regain the same level of salary she was earning at MQT necessarily involves speculation. For example, a Full Bench of the Commission explained the nature of the task under s 392(2)(c) of the Act in Harvey v Valentine Hydrotherapy Pools Inc [2021] FWCFB 4990:26
[11] The question of remuneration that Mr Harvey would have received, or would have been likely to receive, is not a question of fact. It is a question directed to the hypothetical scenario of a likely period of employment that would have ensued had the dismissal not occurred. When making this assessment, the Commission is required to turn its mind to the whole of the evidence and make an evaluative judgment about relevant matters, including the state of the relationship between the parties and other surrounding circumstances.
[23] The statement that the assessment of the remuneration a dismissed employee would have received, or would have been likely to receive, if the person had not been dismissed is not a question of fact should not be misunderstood. The assessment is hypothetical but is nonetheless to be made by reference to, or inference from, established facts. However, to the extent such an assessment involves a factual analysis, the task is of a different character to the determination of the existence, or otherwise, of a past historical event. In relation to the assessment of damage resulting from a loss of earning capacity by reason of personal injury, for example Brennan and Dawson JJ said in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638:27
The fact that the plaintiff did not work is a matter of history, and facts of that kind are ascertained for the purposes of civil litigation on the balance of probabilities: if the court attains the required degree of satisfaction as to the occurrence of an historical fact, that fact is accepted as having occurred. By contrast, earning capacity can be assessed only upon the hypothesis that the plaintiff had not been tortiously injured: what would he have been able to earn if he had not been tortiously injured? To answer that question, the court must speculate to some extent. As the hypothesis is false – for the plaintiff has been injured – the ascertainment of earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history. Hypothetical situations of the past are analogous to future possibilities: in one case the court must form an estimate of the likelihood that the hypothetical situation would have occurred, in the other the court must form an estimate of the likelihood that the possibility will occur. Both are to be distinguished from events which are alleged to have actually occurred in the past.
[24] The hypothetical assessment of the remuneration that would have been received, or would likely have been received, is not commonly going to be susceptible of demonstration or proof. The value of a lost opportunity, in this case to earn remuneration in the employment from which the employee has been dismissed, is to be ascertained “by reference to hypotheses and possibilities which, though they may not be capable of proof on the balance of probabilities, are to be evaluated as a matter of informed estimation”.28 As the Deputy President observed, it necessarily involves a degree of speculation.
[25] We consider that the Deputy President approached his assessment of the remuneration Ms Tamati would have received if she had not been dismissed in this manner, that is, by drawing inferences from established facts. No error has been established in the decision of the Deputy President in that respect. We do not accept MQT’s contention that the Deputy President’s assessment that it would take Ms Tamati two years to regain the salary that she was earning at
MQT was not supported by any evidence. In her written submissions before the Deputy President, Ms Tamati contended:29
(a) But for her dismissal, she would have continued working in her position with MQT for a period of at least six months due to the absences of any other significant tensions affecting the employment relationship. In that event, Ms Tamati would have continued to earn her standard full-time remuneration of
$2,442 per week.
(b) Ms Tamati applied for about 65 jobs following her dismissal on 14 April 2025.
(c) Ms Tamati commenced new employment on 15 July 2025.
(d) In her new job, Ms Tamati’s remuneration was approximately $1,923.08 per week.
(e) Ms Tamati would continue to suffer a weekly loss at the rate of $518.92 in her new job compared to her previous job with MQT.
[26] These written submissions contain a mixture of statements of fact and submissions, which is not unusual for self-represented parties. At the hearing, the Deputy President asked Ms Tamati whether she relied on her written submissions. She indicated that she did.30 MQT did not ask Ms Tamati any questions about her submissions concerning compensation, or the facts underpinning those submissions. In those circumstances, the Deputy President was entitled to have regard to the information contained in Ms Tamati’s written submissions in making an evaluative judgment about the financial loss Ms Tamati suffered by reason of her dismissal. We consider that there was a proper evidentiary foundation for the Deputy President’s assessment of the compensation to be awarded to Ms Tamati in accordance with s 392 of the Act.
[27] We also do not accept MQT’s contention that, if the Deputy President were to consider an amount higher than that proposed by Ms Tamati, he was required to put that proposition to MQT.31 First, Ms Tamati did not contend that she would have been employed for only six months had she not been dismissed; rather, she asserted that she would have been employed for at least six months.32 Secondly, Ms Tamati’s written submissions sought “an order for compensation equivalent to at least 13–14 weeks’ pay (or such larger amount as is appropriate at the time of decision should the Applicant continue to suffer loss between the filing of these submissions and the date of decision)”.33 It follows that this is not a case where MQT participated in the hearing on the basis that Ms Tamati’s case was confined to a contention that she would have only been employed for a further six months had she not been dismissed, or that she was only claiming compensation equivalent to 13–14 weeks’ pay, such that it would be unfair to decide the matter on a different basis without fair notice or a proper opportunity for MQT to respond.34
[28] Thirdly, the outline of argument document relied on by MQT before the Deputy President alerted MQT to the criteria applicable to the calculation of compensation under s 392 of the Act and invited MQT to make submissions on the question of compensation.35 MQT submitted that no compensation should be awarded to Ms Tamati, essentially on the basis that MQT believed that it had not unfairly dismissed Ms Tamati.36 MQT did not make any submissions, in the alternative, about how compensation should be calculated or what amount of compensation would be appropriate if a finding was made that the dismissal was unfair.37
[29] Fourthly, for the reasons we have explained above, the Deputy President’s determination that it would take Ms Tamati two years to regain the same level of salary she was earning at MQT was the result of an evaluative assessment of the compensation that should be awarded to Ms Tamati rather than a simple finding of fact. It was not incumbent on the Deputy President to give MQT an opportunity to comment on his proposed assessment of compensation before making a decision in that regard. On this point, we refer to the following general principle of law stated by a Full Court of the Federal Court in Commissioner of the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (quoted with approval by five members of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152):38
Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.
[30] For those reasons, ground 2 also does not give rise to a sufficiently arguable ground of appeal to justify granting permission to appeal.
Conclusion
[31] We do not consider that it is in the public interest to grant permission to appeal in this matter. The grounds of appeal relied on by MQT do not disclose a sufficiently arguable case of appealable error. This is not a case where the legal principles applied by the Deputy President appear disharmonious when compared with other decisions dealing with similar matters. There is not a diversity of decisions at first instance so that guidance from an appellate bench is required. The circumstances of this case are fact specific. The appeal does not raise issues of general importance or general application. Nor is the Deputy President’s decision at first instance counter intuitive, and it does not manifest an injustice.
[32] The Full Bench orders that permission to appeal is refused.”
Appeal by MQT Pty Ltd v Chantelle Tamati [2025] FWCFB 265 delivered 20 November 2025 per Gibian VP, Saunders DP and Dobson DP