This is a relatively rare decision by the Fair Work Commission determining that the termination of employment by an employee by a resignation was a dismissal for the purposes of the unfair dismissal jurisdiction of the Commission.
“1 Issues and Outcome
[1]
On 4 February 2026, Ian Sydney (the Applicant) made an unfair dismissal application under s 394 of the Fair Work Act 2009 (Cth) (the Act) on the basis that he was unfairly dismissed within the meaning of s 385 of the Act. Rock on Ground Pty Ltd (the Respondent) disputed the assertion and by its response, raised a jurisdictional objection that the Applicant was not ‘dismissed’ as that term is understood by reference to s 386(1) of the Act.
[2]
The Respondent provides drill and blast services. Its Operations Manager, Ben Daniel (Daniel), said that in 2023 and 2024, the Respondent had two large contracts cancelled. According to Daniel, this was due to mine owners switching from open pit operations (work the Respondent does) to underground mining (work the Respondent does not do.) In order to remain in business, the owner of the Respondent (Alan Vickery) sold the majority of drills and other equipment to raise cash to survive. There were a number of redundancies that were made as the workforce was scaled back through this period.
[3]
The Respondent submitted that it picked up a long term drill and blast project in October 2025 at Fingals Minesite near to Kalgoorlie. Around that time, the Applicant returned to his full duties of a Drill Fitter (in November 2025) after a period of leave following a compensable injury. Assessed as fit for work, the Applicant was mobilised to the Kalgoorlie workshop and the Fingals Minesite.
[4]
However, according to the Respondent its financial issues continued. Running a business dependent on winning work through a tender process meant that a major consideration for the Respondent was pricing competitive tenders. Daniel stated that come December 2025, the Respondent’s pricing of tenders was reviewed. The Respondent held the view that as its employee KPI/Safety Bonus (KPI Bonus) and the provision of interstate flights to employees (Travel Agreement), were items outside of what was included in the Fingals Minesite tender and outside of what was included in the Respondent’s enterprise agreement, Rock on Ground
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DECISION
[2026] FWC 2782
2
Pty Ltd – Mining & Civil Construction Enterprise Agreement 2016 (2016 Agreement)1 and its successor, the Rock on Ground Enterprise Agreement 2024 (2024 Agreement),2 those benefits would be removed from employees.
[5]
Daniel said that he spoke to the Applicant on the morning of 15 December 2025 to outline the decision, the reasons behind the decision, and that he was sending a letter to him outlining the changes. The Applicant had, prior to notification of their cessation, formed part of the employee cohort who were included in the KPI Bonus program (for approximately four years) and had been provided with interstate flights between his nominated home address and place of employment since 2018 under the Travel Agreement. Daniel emailed the letter to the Applicant that same morning and later that night, Daniel observed, the Applicant emailed his resignation.
[6]
For his part, the Applicant stated that on 14 December 2025, he was advised by Daniel that the Travel Agreement would cease and the KPI Bonus would be discontinued. On 15 December 2025, he received written confirmation of the changes and by 29 December 2025, the Travel Agreement was no longer in place and the KPI Bonus was removed. The Applicant expressed that the removal of the benefits had significantly reduced his remuneration and materially increased the cost of his employment. The Applicant stated that he did not agree with the changes and on 15 December 2025, he tendered his resignation effective 19 January 2026.
[7]
The Applicant argued that notwithstanding his resignation of 19 January 2026, he had been dismissed. He pressed that the changes to his employment conditions were final, substantial and financially unsustainable, and that prior to the changes being made he had no intention of resigning. The Applicant’s argument was premised upon his resignation having been involuntary, it having arose from the Respondent’s unilateral changes to his employment conditions.
[8]
For the reasons that follow I have concluded that although the Applicant resigned from his position, he was forced to do so by the conduct of the Respondent and was, therefore, dismissed. Consequently, the Applicant’s dismissal was unfair, and an award of compensation in the amount of $7,074.38 (gross) and a superannuation contribution of $848.93 is warranted. An Order3 to this effect issues concurrently with this decision.
2 Background
[9]
On 23 June 2026, a hearing was held to contend with the aforementioned jurisdictional objection, merits and remedy. The Applicant provided evidence in support of his case. The Respondent relied up on the evidence of Daniel and Michelle Haenni, Payroll & Accounts Administrator (Haenni).
[10]
The broader context concerning the application has been extracted from the written witness statements of the Applicant, Daniel and Haenni and their oral evidence provided at
1 AE419867; PR582617.
2 AE525630; PR777683.
3 PR812466.
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3
hearing. Whilst I do not intend to repeat what was said in my introductory remarks, it is necessary to provide further context to the application.
[11]
The Respondent employed the Applicant pursuant to an employment contract dated 17 August 2018. The employment contract provided, in part, the following:
This letter confirms your employment … as per the details provided in the table below in relation to the specific and current Rock on Ground contract. This Employment Confirmation does not apply to other Rock on Ground project sites.
Project site
Roving (non-specific) as required
Point of hire
Perth, Western Australia
Start date
5th September 2018 (or as agreed)
R&R Roster
2 weeks on, 2 weeks off
Position
Drill Fitter – Level 5.5
Your rate of pay will be provided in the table below:
Base Rate
$40.00 per hour
Public holidays, and R&R
$2.22 per hour
Industry Allowance
$0.74 per hour
Special Conditions Allowance
$14.64 per hour
Tool Allowance
$0.19 per hour
Full Rate
$57.79 per hour
Applicable allowances and service pay for time served with Rock on Ground will be paid on top of the rates listed above in accordance with Rock on Ground Pty Ltd – Mining & Civil Construction Enterprise Agreement 2016.
…
By signing this employment confirmation you agree to the details and terms and conditions as stated in the Rock on Ground Pty Ltd – Mining & Civil Construction Enterprise Agreement 2016.
[12]
By letter of 17 August 2018, the Respondent informed the Applicant of the following:
…I am pleased to confirm that Rock on Ground have agreed to book and pay for your flights between your usual place of residence and your usual place of employment.
This agreement only applies to travel between your nominated home address (usual place of residence) and your place of employment. Rock on Ground will not book or pay for travel to any other destinations. The benefit offered is typically exempt from Fringe Benefits Tax, however travel to a destination other than your place of residence would incur a liability. The Fringe Benefits Tax year runs from 1st April to 31st March and if, upon lodging the company’s FBT return, any liability has been incurred for these travel expenses you will be notified, and this liability will be passed on to you and deduced via our payroll system.
In the event of ROG amending or changing your roster for operational reasons, the Company will pay to amend and pre-booked flights to your place of residence accordingly. Any cost to change pre-booked flights for leave purposes or any other reasons beyond ROG’s control shall be at your own expense.
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Please ensure your flight requests are sent through to our Site Administrators in line with your rostered work days. It is requested that these flights are booked as far in advance as practicable (at least 1 month) to ensure fares are booked at a reasonable price. ROG will consider all available travel options prior to booking, however reserves the right to book the travel with their choice of carrier. Our Site Administrators will confirm the intended booking with you prior to ticketing with our travel agent. If you do not wish to proceed with the booking you may cancel and choose to book and pay for your own travel arrangements.
These travel benefits are provided to you in addition to your usual wages or salary and should be kept strictly confidential…
[13]
Haenni gave evidence that the ‘Travel Agreement’ (as set out in the letter of 17 August 2018) was drawn up by an Administration Manger and that it was not considered to be part of the Applicant’s employment contract.
[14]
According to Haenni, the KPI Bonus was introduced in May 2022 and required employees to meet criteria in order to be paid the bonus. Haenni stated that the bonus was not mentioned in the Agreement (presumedly the 2024 Agreement), and that as the Applicant took part in the bargaining process for the Agreement (2024 Agreement), he should have been aware of this. It was Haenni’s evidence that the KPI Bonus was not paid in full to the Applicant on two occasions during the period in which it was paid, because he had not met the bonus criteria. It was Haenni’s view that the KPI Bonus did not form part of any employee’s pay package.
[15]
By letter of 15 December 2025, the Respondent wrote to the Applicant in the following terms:
CHANGE OF CONDITIONS – INTERSTATE TRAVEL & KPI BONUS
In the past two years Rock on Ground had two long-term projects close prematurely and this put the company under a significant amount of financial stress. We have remained afloat by selling company-owned equipment and reducing the size of our workforce.
We have secured a new long-term project that will help the company to rebuild, however, to win this work we were required to reduce our hourly rates by up to $9.00 per hour. It has been noted that there have been companies advertising for drill and blast positions at similar, and even lower rates than we have tendered in this new contract.
Given the downturn in business and our reduction to a single active project site, we have undertaken a review of our existing agreements outside of the Rock on Ground Enterprise Agreement 2024 and are implementing changes essential to maintaining the viability of our operations moving forward.
Discontinuation of Travel Agreement
The Travel Agreement that was established in August 2018 outlined Rock on Ground’s commitment to arrange and pay for interstate flights between your home and place of employment.
This Travel Agreement is being discontinued, effective from Monday, 29th December 2025. The decision to cancel all legacy travel agreements is because there is no allowance for interstate travel contained within our Client rates – the rates that were required for us to win the contract.
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After this date the responsibility to arrange and pay for flights from interstate locations to Perth will revert to the employee. Flights between Perth and your place of employment will continue to be arranged by Rock on Ground.
A FIFO salary sacrifice option for interstate flights is available to you through Salary Packaging Australia (SPA). Please advise if you wish to be provided with more information.
Cancellation of the KPI Bonus program
The KPI Bonus program was originally put in place in December 2020, first at Aldiss and then rolled out to other sites. It was designed to motivate employees to meet set criteria in the areas of safety, productivity and housekeeping. The program was ultimately ineffective in achieving its desired outcomes and proved to have little effect, with a marked increase in safety incidents and equipment damage over that period.
When the Rock on Ground Enterprise Agreement 2024 was agreed upon, a $2.00 per hour reduction to the KPI Bonus was negotiated to help compensate for increased annual leave entitlements across the board – a change to 12 hour annual leave days paid at full rate, at significant additional cost to the Company. This meant that Drill and Blast staff no longer received a bonus, and Grade Control and Maintenance staff received a lower hourly bonus rate.
Given the company’s circumstances, and the failure of the program in meeting objectives, the decision has been made to cancel the KPI Bonus program in its entirety.
The KPI Bonus will no longer be paid from Monday 29th December 2025.
All other terms and conditions of your employment with Rock on Ground remain unchanged.
While we understand that these changes may be disappointing, they are essential to Rock on Ground’s rebuilding efforts. We appreciate your understanding, and your continued commitment.
[16]
By email dated 15 December 2025, the Applicant resigned from his employment with the Respondent, providing five weeks’ notice. In his email the Applicant stated that his resignation was not voluntary and was a direct result of the Respondent’s ‘unilateral removal of company-paid interstate FIFO travel and the associated reduction in my overall remuneration’.
[17]
By an employment contract dated 14 January 2026, the Applicant assumed the position of Drill Fitter with another employer. The employment contract provided the Applicant’s commencement date would be 29 January 2026, and that he would be working a 14 days on and 14 days off roster. Flights were provided from Brisbane to Perth for a period of six months and then reviewed thereafter. The Applicant’s base rate of pay was $42.48 per hour, his site rate was $70.80 per hour, and he received a site bonus of $37.66 per day (subject to the safe, quality and efficient completion of works).
[18]
The Applicant’s payslip with the new employer for the period 25 January 2026 to 31 January 2026 showed the following:
Ordinary Time 49.00 $70.80 $3,469.20
Industry Allowance 49.00 $13.41 $657.08
Site Bonus 5.00 $37.66 $188.30
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6
= $4,314.58
[19]
For the period 25 January 2026 to 6 June 2026, the Applicant received from his new employer the following gross amounts:
4,314.58 25/01/2026 – 31/01/2026
2,242.56 01/02/2026 – 07/02/2026
4,485.12 8/02/2026 – 14/02/2026
7,848.96 15/02/2026 – 21/02/2026
3,363.84 22/02/2026 – 28/02/2026
4,485.12 08/03/2026 – 14/03/2026
7,848.96 15/03/2026 – 21/03/2026
3,363.84 22/03/2026 – 28/03/2026
4,485.12 05/04/2026 – 11/04/2026
7,848.96 12/04/2026 – 18/04/2026
3,363.84 19/04/2026 – 25/04/2026
4,485.12 03/05/2026 – 09/05/2026
7,848.96 10/05/2026 – 16/05/2026
3,363.84 17/05/2026 – 23/05/2026
4,485.12 31/05/2026 – 06/06/2026
[20]
The Applicant’s payslip from the Respondent for the period 15 December 2025 to 21 December 2025, showed that the Applicant’s gross earnings were $5,162.50 for 60.67 hours, which consisted of $350.00 as a ‘Bonus – Site’ and $4,812.50 for salary. The 60.67 hours with the Respondent therefore attracted a rate of pay, absent ‘Bonus – Site’ of $79.32 and with the ‘Bonus Site’ $85.09.
[21]
If one compares the Applicant’s earnings with the Respondent inclusive of ‘Bonus Site’ to the rates of the new employer, which, in part, consisted of ordinary time and industry allowance, this amounted to $84.21 per/hour. Leaving aside the new employer’s ‘Site Bonus’, the pays are relatively equivalent.
[22]
The Applicant said that his dismissal took effect on 19 January 2026 and the Respondent agreed that this date would be used as the Applicant’s ‘resignation date’.4 Whilst the Applicant’s employment contract with his new employer provided for a commencement date of 29 January 2026, the Applicant’s first payslip with the new employer was for the period 25 January 2026 to 31 January 2026, a period in which the Applicant worked 49 hours. It appears highly irregular that the Applicant would have worked 49 hours over the course of 29, 30 and 31 January – meaning 16.33 hours a day. I therefore find that the Applicant commenced his new employment on or around 25 January 2026, meaning that the Applicant was without work for approximately four to five days.
3 Was the Applicant dismissed?
[23]
Central to the consideration of whether the Applicant was dismissed is the operation of s 386(1) of the Act.
4 Digital Hearing Book, 48.
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[24]
Section 386(1) of the Act defines what constitutes a dismissal for the purpose of Part 3-2 of the Act, which concerns Unfair Dismissal. The word ‘dismissed’ is defined in s 12 of the Act as having adopted the meaning in s 386 of the Act.
[25]
Section 386(1) of the Act reads:
(1)
A person has been dismissed if:
(a)
the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b)
the person has resigned from his or her employment but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
[26]
There are exceptions under s 386(2) of the Act regarding when a person has been dismissed; those exceptions are not relevant to this case.
[27]
The definition of dismissal in s 386(1) of the Act has two elements, both of which have been subject to consideration. The first traverses ‘termination on the employer’s initiative’ and the second, ‘resignation in circumstances where the person was forced to do so because of conduct or a course of conduct’. This bifurcation was explained by the Full Bench in Bupa Aged Care Australia Pty Ltd v Shahin Tavassoli (‘Bupa’),5 in the following terms:
[47] Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:
(1) There may be a dismissal within the first limb of the definition in s 386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.
(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s 386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.
[28]
While a summary of the position under s 386(1) of the Act was proposed in Bupa, a later decision of the Full Bench in City of Sydney RSL & Community Club Limited v Balgowan
5 [2017] FWCFB 3941.
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(‘City of Sydney RSL’),6 gave further consideration to the operation of s 386(1)(b) of the Act, expressing:
[10] It seems clear…that the concept of constructive dismissal is to be accommodated by s 386(1)(b) and that concept is not subsumed in s 386(1)(a).
[29]
The Applicant contends that it was the conduct of the Respondent that ultimately brought his employment to an end and left him with no choice but to resign. That conduct, according to the Applicant, was the unilateral variation the Applicant’s employment contract by ceasing the Travel Agreement and removing the KPI/Safety Bonus.
[30]
Prior to considering whether the Travel Agreement and the KPI bonus were terms of the employment contract, the general principles governing the repudiation of an employment contract warrant attention.
[31]
The Full Bench in City of Sydney RSL considered what constituted ‘repudiation’ by reference to the judgment of the High Court of Australia in Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd.7 Whilst at paragraph [17], the Full Bench extracted several paragraphs from the judgment, for current purposes of the following from Gleeson CJ, Gummow, Heydon and Crennan JJ suffices:
In its letter of termination, Koompahtoo claimed that the conduct of Sanpine amounted to repudiatory breach of contract. The term repudiation is used in different senses. First, it may refer to conduct which evinces an unwillingness or an inability to render substantial performance of the contract. This is sometimes described as conduct of a party which evinces an intention no longer to be bound by the contract or to fulfil it only in a manner substantially inconsistent with the party’s obligations. It may be termed renunciation. The test is whether the conduct of one party is such as to convey to a reasonable person, in the situation of the other party, renunciation either of the contract as a whole or of a fundamental obligation under it. (In this case, we are not concerned with the issues that arise where the alleged repudiation takes the form of asserting an erroneous interpretation of the contract. Nor are we concerned with questions of inability as distinct from unwillingness). Secondly, it may refer to any breach of contract which justifies termination by the other party. It will be necessary to return to the matter of classifying such breaches. Campbell J said this was the sense in which he would use the word ‘repudiation’ in his reasons. There may be cases where a failure to perform, even if not a breach of an essential term (as to which more will be said), manifests unwillingness or inability to perform in such circumstances that the other party is entitled to conclude that the contract will not be performed substantially according to its requirements. This overlapping between renunciation and failure of performance may appear conceptually untidy, but unwillingness or inability to perform a contract often is manifested most clearly by the conduct of a party when the time for performance arrives. In contractual renunciation, actions may speak louder than words.
In the past, some judges have used the word ‘repudiation’ to mean termination, applying it, not to the conduct of the party in default, but to the conduct of the party relying upon such default. It would be better if this were avoided.8
6 [2018] FWCFB 5.
7 (2007) 233 CLR 115.
8 Ibid 135–6, [44]–[45].
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[32]
The Full Bench in City of Sydney RSL stated that the question of whether there has been a repudiation of the contract of employment is determined objectively, it being unnecessary to show a subjective intention to repudiate and, that it is a question of fact not law.9 Hence the issue is resolved objectively by reference to the effect it would have on a reasonable person.10 The question becomes whether the conduct of the employer, judged objectively, evinced an intention to no longer be bound by the contract.11 Repudiation may also be established by conduct that evinces an intention to perform the contract only in the manner in which it suits that party to perform.12 To explain further, the focus in repudiation cases may be on whether the conduct is in breach of an essential/material term of the contract, whether the conduct is a sufficiently serious breach of a non-essential term, and whether the other party is entitled to conclude that the contract will not be performed substantially according to its requirements.13
[33]
Relevantly, for present purposes, repudiation may exist where an employer reduces the wages of an employee without the employee’s consent.14
[34]
A repudiatory breach does not automatically terminate the contract but confers an elective right of termination on the innocent party.15 At common law repudiatory conduct does not terminate the contract of itself. A repudiation gives the innocent party the right to elect to terminate the contract. The innocent party is ‘confronted’ by two inconsistent options: either to accept the repudiation and bring about the end of the contract, or to affirm the contract and continue it. The innocent party may ‘keep the question open, so long as she or he does not affirm the contract … and so long as the delay does not cause prejudice to the other side’ but ultimately must make an election because the law does not allow a party to maintain two inconsistent rights (or positions) and requires a choice made.16
[35]
Insofar as the operation of s 386(1) of the Act is concerned, where an employer engages in repudiatory conduct and the employee exercises her or his right to terminate the employment, then, for the purposes of s 386(1), the employment is likely to have been terminated at the initiative of the employer.17 That is, where an employee elects to terminate the employment because of the repudiation by the employer, they are likely to be ‘a person who has been dismissed’ for the purposes of ss 386(1) and 385(a).18 Importantly, it is only once the employee makes the election to accept the repudiation that the dismissal occurs.19
[36]
As noted, the Applicant submits that he relies upon the Respondent’s conduct in unilaterally varying his employment contract, such that the Travel Agreement ceased and the KPI/Safety bonus was removed. The Applicant asserts he had no choice but to resign with the
9 (n 6) [18].
10 Whittaker v Unisys Australia Pty Ltd (2010) VR 668 (‘Whittaker’), 675, [33].
11 Ibid.
12 Ibid.
13 NSW Trains v James [2022] FWCFB 55 (‘NSW Trains v James’), [182].
14 City of Sydney RSL (n 6) [18].
15 Whittaker (n 10) 675 [36].
16 NSW Trains v James (n 10) [183].
17 Ibid [184].
18 Ibid.
19 Ibid.
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unilateral changes equating to a $32,000.00 reduction in benefits. The Applicant attributed approximately $20,000.00 of that amount to the Travel Agreement.
[37]
Until the terms of the contract are known and identified it is impossible to say whether or not any particular conduct is a breach of such gravity or importance as to indicate a rejection or repudiation of the contract.20
[38]
There are two observations to make at this point. First, the Travel Agreement did not sit within the employment contract. The Travel Agreement was an agreement in and of itself – a physically separate and independent agreement that sat alongside the employment contract. Second, the employment contract and the Travel Agreement were both dated 17 August 2018.
[39]
It is evident from words of the Travel Agreement that prior to the parties entering into the agreement there had been discussion about the agreement. The opening paragraph of the document sets out that the Respondent company is ‘pleased to confirm that Rock on Ground have agreed to book and pay for your flights between your usual place of residence and your usual place of employment’. Furthermore, given the dates of the employment contract and the Travel Agreement, both were entered into prior to the Applicant’s commencement date (as provided in Schedule to the employment contract). That the Respondent considered that the Travel Agreement constituted a benefit to the Applicant in addition to his wages and salary as provided by his employment contract was plainly expressed. The Travel Agreement stated, ‘these travel benefits are provided to you in addition to your usual wages or salary and should be kept strictly confidential…’.
[40]
In effect, the Travel Agreement assumed features of a collateral contract,21 formed by the Respondent’s promissory statement to the Applicant, that it would pay his flights between his usual place of residence and his usual place of employment. The promise is abundantly clear. There is no inconsistency between the employment contract and the Travel Agreement. Both were able to co-exist and did so for the period of the Applicant’s employment up until the cessation of the Travel Agreement by the Respondent on 29 December 2025. Whether the Travel Agreement induced the Applicant to accept the offer of employment with the Respondent is answered in the affirmative. The timing of when the Travel Agreement was entered into by the parties, the geographical location of the Applicant’s home residence at that time (and during the employment), and the express words of the Travel Agreement have led me to that conclusion. I accept the Applicant’s evidence that he considered that the Travel Agreement formed part of his employment conditions throughout his employment and was a significant factor in his continued employment with the Respondent.
[41]
Perhaps in an effort to detract from the assertion that the Travel Agreement was an enforceable contract, the Respondent’s evidence referred to the Travel Agreement as having been drafted by an Administration Manger and that it was not considered to be part of the Applicant’s employment contract. Whilst the Travel Agreement appeared to have been signed by the Administration Manger (reference having been made to the position title in the signature clause), a suggestion that the Administration Manager did not have ostensible authority to enter the Respondent into the agreement cannot stand. The parties complied with the terms of the
20 North v Television Corporation Ltd (1976) 11 ALR 599, 609 [45].
21 See Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1, 76–77, [242]–[246].
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Travel Agreement for the duration of the Applicant’s employment up until 29 December 2025, when the Respondent, through Daniel, decided to terminate the agreement. This was not because the agreement had been entered into by mistake or error by the Respondent (that is, that the Administration Manager lacked authority), but because the Respondent business was responding to its financial circumstances.
[42]
The Respondent further pressed that the Travel Agreement was able to be unilaterally removed from the Applicant because it did not form part of the 2016 Agreement or the 2024 Agreement. However, that the Travel Agreement was not a term of an industrial instrument did not therefore mean it was a discretionary benefit that could simply be ceased. As found, it was an enforceable contractual term.
[43]
It follows that by ceasing the Travel Agreement the Respondent reduced a benefit of the Applicant’s employment which was significant. The Applicant estimated that the provision of flights by the Respondent amounted to an approximate $20,000.00 benefit per annum. Daniel gave evidence that it was always open to the Applicant to have approached him after he had provided to the Applicant the letter of 15 December 2025 to discuss the removal of the Travel Agreement and that it was open to the Applicant to salary sacrifice his interstate flights. However, the letter of 15 December 2025, made no mention of the withdrawal of the Travel Agreement being a proposal or a matter that was up for discussion or negotiation. The parties’ evidence has not led me to a finding that Daniel otherwise communicated to the Applicant prior to the cessation of the Travel Agreement or before the Applicant’s employment ended, that the cessation of the Travel Agreement was open to be revisited or negotiated such that a mutually agreed compromise of the benefit could be reached. To the extent that Daniel compares the circumstances to one where the Applicant had previously been offered a lower paying job, rejected that offer, and continued employment, and therefore it followed that it was open to the Applicant to come back and negotiate his position after the letter of 15 December 2025, I do not consider the circumstances analogous. Further, I accept the Applicant’s evidence that salary sacrificing his interstate flights was not an option for him as it still required the outlay of his money to purchase flights that had otherwise been provided previously by the Respondent.
[44]
At this stage, it would be evident that I have not broached the Respondent’s unilateral withdrawal of the KPI Bonus. I have not done so because the Respondent’s cessation of the Travel Agreement is sufficient to constitute a repudiation of the Travel Agreement which was open to the Applicant to accept. As it was, I considered that the evidence concerning the KPI Bonus was, at best, limited. There does not appear to have been a written document setting out the KPIs and the bonus structure. However, I accept the Respondent’s evidence that it was discretionary, it was awarded for satisfaction of KPIs, and that on two occasions it was not forthcoming to the Applicant because the requisite KPIs had not been met.
[45]
Further, I am of the view that the critical factor that gave rise to the Applicant’s dismissal was the unilateral removal of the Travel Agreement and the accompanying decrease in benefit that followed. The Applicant referred to a reduction in his responsibilities and seniority in 2024 and a change in roster, removal of the leading hand position and a reduction in remuneration (including removal of allowances) that had occurred 2025. However, notwithstanding these changes, the Applicant remained employed with the Respondent, did not reserve his rights, and therefore, by his conduct, accepted the purported changes. I do not accept that these factors
[2026] FWC 2782
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were such that they formed a course of conduct by the Respondent that resulted in the Applicant having no choice but to resign.
[46]
However, the conclusion that the Applicant’s employment was terminated at the initiative of the Respondent due to the Respondent’s repudiation of the Travel Agreement is not misplaced. That the Applicant was forced to resign because of the cessation of the Travel Agreement is similarly open to find on balance. I therefore find that the Applicant was dismissed and, for the following reasons, I consider that the dismissal was unfair.
4 Unfair dismissal
[47]
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take account the matters in s 387 of the Act. In a matter such as this, where the Commission has rejected the Respondent’s jurisdictional objection that the Applicant was not dismissed, the consideration of several of the factors in s 387 of the Act is relatively straightforward.
[48]
The Act directs consideration of whether there was a valid reason for the dismissal related to the person’s capacity or conduct (s 387(a)). There was no valid reason for the Applicant’s dismissal related to his capacity or conduct and it therefore follows that s 387(a) is a neutral consideration.
[49]
As to whether the Applicant was notified of the valid reason, there were no reasons for the termination of the Applicant’s employment related to his capacity or conduct, of which he could be notified (s 387(b)), or to which he could respond (s 387(c)). Further, there were no discussions relating to the dismissal (s 387(d)), and no unsatisfactory performance in respect of which a warning might have been given (s 387(e)). These are all neutral considerations. In addition, there were no ‘procedures followed in effecting the dismissal’, therefore the considerations in s 387(f)–(g) are not relevant.
[50]
The remaining consideration the Commission is obliged to take into account is outlined in s 387(h) of the Act, which refers to ‘any other matters that the FWC considers relevant.’ At this juncture, it is relevant to reflect further on the circumstances that gave rise to the Applicant’s dismissal.
[51]
Throughout the hearing, the Applicant did not challenge that the Respondent had, over the preceding two years, encountered financial difficulties which resulted in the Respondent making redundant fitter positions within the business. In fact, in his evidence, the Applicant acknowledged, when he stated words to the effect that the company should have ‘done the right thing and made me redundant like many other employees’, that redundancies had occurred. Further, there was no challenge to the Respondent’s evidence that the tender won, which gave rise to the project on which the Applicant had been assigned to work, did not include costings for flights or the KPI Bonus. I accept the Respondent’s evidence that to win the project, it had priced the tended in a manner that excluded costs arising from the Travel Agreement and KPI Bonus.
[52]
However, I am unpersuaded by the Respondent’s assertion that it was open to the Applicant to have approached the Respondent once in receipt of the letter of 15 December 2025
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to have negotiated, or at least have talked about, an alternative to removing the Travel Agreement. The letter of 15 December 2025 was unequivocal in its terms to the extent that it notified the Applicant that the Respondent considered itself no longer bound by the terms of the Travel Agreement. Further, the evidence does not suggest that the Respondent consulted the Applicant about the proposed change to the Travel Agreement and sought discussion about alternative options, but instead simply verbally communicated the unilateral withdrawal of the benefit and the reasons for doing so and thereafter confirmed the unilateral withdrawal in writing. That the Respondent considered it was open to the Applicant to explore with it alternatives to the withdrawal of the Travel Agreement is unreasonable. On receipt of the Applicant’s resignation, observing that the Applicant worked out a notice period, it was clearly open to the Respondent to have revisited its decision to withdraw from the Travel Agreement or, at the very least, to have held further discussions about the issue with its employee. It did not do so, and it was not, in my opinion, reasonable to have expected the Applicant to have taken that step in light of what had been communicated to him on 15 December 2025.
5 Conclusion – Applicant unfairly dismissed
[53]
The Applicant was protected from unfair dismissal at the time he was dismissed. The Applicant has been unfairly dismissed; his dismissal having been unreasonable. It is therefore incumbent upon me to consider an order in respect of remedy.
6 Remedy
[54]
I have considered that a relatively modest amount of compensation is warranted in the circumstances for the following reasons.
6.1 Reinstatement
[55]
Before dealing with the quantum of compensation, the Commission must be satisfied that reinstatement is inappropriate and that an order for payment of compensation is appropriate in all the circumstances.22 In relation to reinstatement, I consider that it would be inappropriate given the sentiment expressed by the Applicant that he feels he should have been made redundant and that he should have been given pro rata long service leave as he had not intended resigning. It is not the case that the Applicant has explicitly expressed a desire to be reinstated and I am aware that he has secured alternative employment which includes the provision of flights. I therefore consider that an award of compensation is appropriate in this case.
6.2 Compensation
[56]
Compensation is provided to an applicant who has been unfairly dismissed for reparation for losses reasonably attributable to the unfair dismissal. It is not intended to be punitive.23 The amount of compensation ordered by the Commission must not include a component for shock, distress or humiliation, or other analogous hurt, caused to the person by
22 Fair Work Act 2009 (Cth) s 390(3)(a)–(b).
23 Kable v Bozelle [2015] FWCFB 3512, [17].
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the dismissal.24 It is also not the case that the Commission can make good the long service leave that the Applicant feels he should have received – whether in full or on a pro rata basis.
[57]
In assessing compensation, it is necessary to take into account all the circumstances of the case, including the specific matters identified in s 392(2)(a)–(g), and to consider the other relevant requirements of s 392 of the Act.
[58]
The well-established approach to the assessment of compensation under s 392 is to apply the ‘Sprigg Formula’, derived from the decision of the Full Bench of the Australian Industrial Relations Commission in Sprigg v Paul’s Licensed Festival Supermarket (‘Sprigg’).25 This approach was articulated in the context of the current legislative framework in Bowden v Ottrey Homes – Cobram & District Retirement Villages Inc (‘Bowden’),26 and I have applied this methodology in reaching my decision.
[59]
Under that approach, the first step to be taken in assessing compensation is to consider s 392(2)(c), that is, to determine what the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed (the anticipated period of employment). In Bowden, this was described in the following way:
[33] The first step in this process – the assessment of remuneration lost – is a necessary element in determining an amount to be ordered in lieu of reinstatement. Such an assessment is often difficult, but it must be done. As the Full Bench observed in Sprigg:
‘… we acknowledge that there is a speculative element involved in all such assessments. We believe it is a necessary step by virtue of the requirement of s.170CH(7)(c). We accept that assessment of relative likelihoods is integral to most assessments of compensation or damages in courts of law.’
[34] Lost remuneration is usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment. We refer to this period as the ‘anticipated period of employment’…27
[60]
Once the first step of determining the anticipated period of employment has been undertaken, various adjustments are made in accordance with s 392 of the Act and the formula for matters including monies earned since dismissal, contingencies, any reduction on account of the employee’s misconduct, and the application of the cap of six months’ pay. This approach is, however, subject to the overarching requirement to ensure that the level of compensation is an amount that is considered appropriate having regard to all the circumstances of the case. The approach can be summarised as follows:
•
Step 1: estimate the remuneration the Applicant would have received, or have been likely to have received, if the Respondent had not terminated the employment (remuneration lost).
24 Fair Work Act 2009 (Cth) s 392(4).
25 (1998) 88 IR 21.
26 [2013] FWCFB 431.
27 Ibid [24], quoting Ellawala v Australian Postal Corporation [2000] AIRC 1151 (‘Ellawala’).
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•
Step 2: monies earned by the Applicant since dismissal until the end of the anticipated period of employment are deducted.
•
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 5: apply the legislative cap on compensation.
6.2.1 Remuneration that the Applicant would have been received (s 392(2)(c)) and remuneration earned (s 392(2)(e)) and income reasonably likely to be earned (s 392(2)(f))
[61]
At the time of his dismissal, the Applicant’s rate of pay appeared to be $79.32 absent ‘Bonus – Site’ or with the ‘Bonus Site’ $85.09. As noted, the Applicant’s payslip from the Respondent for the period 15 December 2025 to 21 December 2025, showed that the Applicant’s gross earnings were $5,162.50 for 60.67 hours, which consisted of $350.00 as a ‘Bonus – Site’ and $4,812.50 for salary.
[62]
Having considered the evidence before me, it is plain that the removal of the Travel Agreement was the fundamental factor that gave rise to the Applicant’s dismissal. The continuation in the role with such degradation of benefit was a circumstance that proved intolerable to the Applicant, and on any objective level, that sentiment was understandable. I considered that the dismissal was unreasonable for the reasons detailed. But I accept the Respondent’s evidence that it had encountered financial difficulties resulting in it tendering for jobs in a manner that excluded within its pricing the Travel Agreement and KPI Bonus. It follows that the anticipated period of employment would have been decidedly short. Akin to circumstances where there is a failure to consult regarding a significant change – such as a redundancy of a position, in this case, I consider that the anticipated employment period would have been no more than three weeks. The period is reflective of circumstances where the Respondent engaged with the Applicant and sought to negotiate an outcome regarding the Travel Agreement, which may have led to him remaining in employment or not.
[63]
Taking the weekly wage of $5,162.50 for 60.67 hours with the Respondent and observing that the Applicant’s roster was either a two week on and two week off roster or a two week on and one week off roster, in a three-week period, the Applicant would have, based on the figure of $5,162.50, received $10,325.00. If, however, the Applicant worked for the three weeks, then that amount would have been $15,487.50.
[64]
From the date of dismissal, 19 January 2026, to the end of the anticipated period of employment, 9 February 2026, the Applicant earned approximately $8,413.12 gross. For the sake of fairness, I have utilised the figure of $15,487.50 (anticipated period of employment) and deducted from that the amount of $8,413.12 ($525.82 x 16 daily rate with the new employer). This amounts to $7,074.38 gross. I have considered it appropriate to include a superannuation contribution of $848.93.
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6.2.2 Length of service (s 392(2)(b))
[65]
I do not consider that the Applicant’s length of service calls for any upward or downward adjustment to the compensation amount that should otherwise be ordered.
6.2.3 Other matters (s 392(2)(g))
[66]
As was said in the Full Bench decision in McCulloch v Calvary Health Care Adelaide (‘McCulloch’), it is important to appreciate that a deduction for contingencies is applied to prospective losses, that is loss occasioned after the date of the hearing.28 Referring to Ellawala v Australian Postal Corporation,29 the Full Bench in McCulloch stated that a discount for contingencies is a means of taking account of the various probabilities that might otherwise affect earning capacity.30 Of course, at the time of hearing, any such impact on an applicant’s earning capacity between the date of termination and the hearing will be known.31 It will not be a matter of assessing prospective probabilities but of making a finding on the basis of whether an applicant’s earning capacity has in fact been affected during the relevant period.32 This contrasts with the exercise before me now.
[67]
As observed, a contingency discount necessarily only applies to future circumstances and, in the context of the present matter, I am not persuaded to make any discount for contingencies.
[68]
In relation to taxation, compensation will be determined as a gross amount, and it will be left to the Respondent to deduct any amount of taxation required by law.
6.2.4 Viability (s 392(2)(a))
[69]
The Respondent was provided opportunity to address this factor. Notwithstanding the Respondent’s evidence concerning its recent financial difficulties, I am of the view that an order for the payment of compensation in the modest amount found would not affect the viability of the Respondent’s business. It follows that there will be no deduction from the compensation amount on this basis.
6.2.5 Mitigation efforts (s 392(2)(d))
[70]
It has been noted that decisions of this Commission and its predecessors concerning the recognition of mitigation efforts do not identify or mandate a single specific approach or formula relative to this discretionary issue.33 The reasonableness of the efforts taken to mitigate loss depends on the circumstances of the case.34 As will be evident at this point, the Applicant
28 [2015] FWCFB 2267 (‘McCulloch’), [21].
29 Ellawala (n 27).
30 Ibid [43] cited in McCulloch (n 30) [21].
31 Ellawala (n 27) [43] cited in McCulloch (n 28) [21].
32 Ellawala (n 27) [43] cited in McCulloch (n 28) [21].
33 Veal v Sundance Marine Pty Ltd [2013] FWCFB 5205, [5].
34 Biviano v Suji Kim Collection (Australian Industrial Relations Commission, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002) PR915963, [35]; McCulloch (n 28) [23].
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has furnished evidence of steps taken to mitigate his loss. I have considered that the Applicant has obtained work. In the circumstances, I am able to conclude that the Applicant made reasonable efforts in respect of mitigation and as a consequence will not reduce the compensatory amount.
6.2.6 Misconduct (s 392(3))
[71]
Section 392(3) of the Act requires that if I consider that misconduct on the part of the Applicant contributed to the dismissal, I must reduce the amount of compensation that would otherwise be awarded. I have concluded that matter of misconduct in these circumstances is irrelevant, the Applicant having not engaged in misconduct.
6.2.7 Compensation cap (s 392(5))
[72]
The amount of compensation the Commission may order is capped. If the appropriate quantum of compensation initially assessed exceeds that cap, then the Commission must reduce the amount to the amount of the cap. The Act stipulates that the compensation cap is the lesser of:
a)
the amount of remuneration received by the person, or that he or she was entitled to receive (whichever is higher) in the 26 weeks before dismissal [approximately $125,125.00]; and
b)
half the amount of the high income threshold immediately before dismissal [$91,550.00].35
[73]
For the purpose of s 392(5) of the Act, I am satisfied the amount is $91,550.00.
6.2.8 Instalments (s 393)
[74]
No reason was put before me to suggest it appropriate that the compensation be paid by way of instalment, and therefore no such order is issued to that effect.
7 Conclusion
[75]
The amount of compensation derived from the above considerations is $7074.38 (gross) less deduction of any tax as required by law and a superannuation contribution of $848.93.
[76]
In determining the amount for the purpose of the Order, I have taken into account all of the circumstances of the case including the criteria set out in s 392(2) of the Act and have considered what constitutes a “fair go all round”.36”
Sydney v Rock on Ground Pty Ltd [2026] FWC 2782 delivered 29 July 2026 per Beaumont DP