Fair work remedies for unfair dismissal


This portion of an unfair dismissal decision of the Fair Work Commission contains the Commission’s approach to and reasoning about a remedy for unfair dismissal.



[72]    I am therefore satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the Act.




[73]    It follows that the Applicant was unfairly dismissed in accordance with s.385 of the Act. Being satisfied that the Applicant was unfairly dismissed, I am required by s.390 to consider whether to order reinstatement or the payment of compensation.


[74]    At the hearing before me, the Applicant confirmed that reinstatement was not sought, and the Respondent no longer operates the business that the Applicant was employed in. Having regard to that fact and the other evidence before me, I am satisfied that an order for reinstatement would be inappropriate.41


[75]    Having found that reinstatement is inappropriate, it does not automatically follow that a payment for compensation is appropriate. As noted by the Full Bench, “[t]he question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one…”42


[76]    I consider that an order for compensation is appropriate in the circumstances. The dismissal was plainly unfair and the Applicant has suffered financial loss as a result.43


[77]    In determining compensation, I am required to take into account all the circumstances of the case, including the matters listed in s.392(a) – (g). Any misconduct by an employee contributing to the dismissal may reduce the amount that would be otherwise ordered.44 Compensation is not payable for shock, distress and the like.45


[78]    There is no evidence that an order for compensation will materially affect the viability of the Respondent. Whilst it has ceased trading, the Respondent appears to have access to funds to pay at least the accrued leave entitlements of the Applicant. No reduction in the amount of compensation is made because of any effect on the viability of the Respondent.46


[79]    The Applicant was employed by the Respondent since November 2020 when the Respondent took over the distribution arrangements with Lactalis. I consider the Applicant’s length of service weighs in favour of an upward adjustment of 4 weeks pay.47


[80]    Dealing next with the remuneration that the Applicant would have, or would have been likely to have, received if he was not dismissed,48 I consider that the Applicant would not have remained employed any longer given that the Respondent had sold his business.


[81]    In respect of the action taken by the Applicant to mitigate his losses, I note the submissions of the Applicant. The Applicant submitted evidence that includes more than 15 enquiries on Facebook Jobs board between the date of dismissal and late September 2023. I note the Applicant undertook training to obtain his HR license and that he was successful in obtaining new employment on 9 October 2023.49


[82]    Having obtained employment on 9 October 2023, the Applicant’s period without remuneration up until the date of this order was limited to 12 weeks.50


[83]    I find that any income reasonably likely to be earned between the making of the order for compensation and the actual compensation will have no impact on the final order, given the Applicant found new employment.51


[84]    I note that if the Respondent had of complied with its lawful obligations to consult with the Applicant and given him notice that his services were no longer required, the Applicant would have an expectation of 9 weeks pay.52


[85]    Giving consideration to the above issues I find that the Applicant should be paid 13 weeks pay, based on his weekly gross pay of $1,260, this amounts to $16,380 plus superannuation of 10.5%.


[86]    I make no deduction for misconduct given my findings that there was insufficient evidence before the Commission that the issues raised by the Respondent in these proceedings had ever been raised with the Applicant until after these proceedings were instigated.53


[87]    I make an addition for contingencies, specifically the cost of upskilling the Applicant’s HR license which enabled him to find new employment, in the order of $530.00. The total amount is therefore $16,910.54


[88]    That amount is well within the statutory cap. I shall therefore order that the Applicant be paid an amount of $16,910 plus an amount of $1,719.90 in superannuation (calculated on the basis of 10.5% based on the remuneration component of $16,380). The total amount ordered for payment is $18,629.90. I have considered the impact of taxation but have elected to settle a gross amount of $16,380 in wages, $1,719.90 in superannuation and $530 reimbursement for expenses and leave taxation on the wages element for determination in accordance with the applicable law.


[89]    Having applied the formula in Sprigg, I am nevertheless required to ensure that “the level of compensation is an amount that is considered appropriate having regard to all the circumstances of the case,”55 and I consider that as set out in my decision in the preceding paragraphs, I have done so and I am satisfied that the amount of compensation that I have determined above takes into account all the circumstances of the case as required by s.392 of the Act.


[90]    An order56 to this effect, requiring payment within 7 days, will be issued with this decision.”

Nuttall v The Trustee For Bm Supplies Unit Trust(2024) FWC 953 delivered 12 April 2024 per Dobson DP