This very interesting decision of the Fair Work Commission in an appeal deals amongst other things with the proper manner to calculate lost earnings caused by an unfair dismissal.
“Introduction
[1]
The present appeals arise from unfair dismissal proceedings brought by Gemma Moore against her former employer, Bytewize Pty Ltd. Ms Moore was employed by Bytewize providing specialist ICT technician services to various Victorian Government schools as part of the Technical Support to Schools Program. Her employment came to an end on 8 October 2025. She applied to the Commission for an unfair dismissal remedy under s 394(1) of the Fair Work Act 2009 (Cth) (the FW Act) on 28 October 2025.
[2]
The application was dealt with by a Deputy President of the Commission. The Deputy President conducted a determinative conference on 21 April 2026. The Deputy President announced his decision and gave ex tempore reasons at the conclusion of the determinative conference. The Deputy President subsequently published his reasons on 28 April 2026: Moore v Bytewize Pty Ltd [2026] FWC 1536 (the Unfairness Decision). In that decision, the Deputy President found that Ms Moore had been dismissed and that her dismissal was unfair. The Deputy President published a further decision on the question of remedy on 21 May 2026: Moore v Bytewize Pty Ltd [2026] FWC 1860 (the Compensation Decision). In this decision, the Deputy President found that reinstatement would be inappropriate, but that an order for payment of compensation was appropriate in all the circumstances. The Deputy President ordered that Bytewize Pty Ltd pay Ms Moore the gross sum of $4,406.05.
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DECISION
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[3]
Both parties seek permission to appeal and to appeal. On 11 June 2026, Ms Moore filed a notice of appeal with respect to the Compensation Decision. Ms Moore raises a discrete issue in relation to the manner in which the Deputy President determined the amount of compensation she should receive in lieu of reinstatement. In short, Ms Moore contends that the amount of compensation she was awarded should not have been reduced by reference to amounts she earned from other employment after the period the Deputy President anticipated her employment with Bytewize would have continued had she not been dismissed.
[4]
On 15 June 2026, Bytewize filed a notice of appeal. The notice of appeal identifies the date of the decision subject of the appeal as 21 May 2026. It is apparent from the written submissions subsequently filed by Bytewize that it seeks to appeal with respect to both the Unfairness Decision and the Compensation Decision. In either event, the notice of appeal was filed outside the time provided in rule 128(2) of the Fair Work Commission Rules 2024 (Cth) (the FWC Rules) and Bytewize requires an extension of time. Bytewize’s notice of appeal contains a single generalised ground. Its written submissions articulate more specific grounds which challenge the finding of the Deputy President that Ms Moore was dismissed for the purposes of s 386(1)(a) of the FW Act and the assessment of compensation.
[5]
For the reasons that follow, Bytewize should be granted an extension of time to appeal. However, permission to appeal should be refused with respect to its appeal because no arguable error is demonstrated. With respect to Ms Moore’s appeal, permission to appeal should be granted and the appeal allowed. Income earned after the period the Deputy President assessed that Ms Moore’s employment would have continued had she not been dismissed should not have been deducted from the amount otherwise considered appropriate in determining the amount of compensation for the purposes of s 392 of the FW Act.
Factual background
[6]
The factual background can be summarised briefly. Ms Moore had been employed by Bytewize for approximately five years under a series of employment agreements. The most recent employment agreement commenced on 17 June 2024 and had a termination date of 26 December 2027. Clause 17.1(a) of the employment agreement provided that either party may terminate the agreement ‘by giving to the other party 30 calendar days’ written notice’.
[7]
At 1.49pm on 7 October 2025, Ms Moore sent an email to Bytewize’s director, Adrian Brumen, in response to an email from Mr Brumen raising concerns about her completion of timesheets. The email reads:
Hi Adrian
Thank you for your email my resignation will be arriving in your inbox shortly, as we have been over the timesheet stuff and while some of it was my fault some of it was related to staffing at schools and as stated last period I have taken steps to make sure Imogen approves them. I have added absences into the payroll system so not sure why this is on the email, it is obvious that you are focused on the negative as confirmed by the berating you gave me on the phone call and this email. I don’t need this in my life as it is hard enough already
Cheers
Gemma
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[8]
Later that day, at 7.07pm on 7 October 2025, Ms Moore sent a further an email to Mr Brumen. This email was also sent to a range of email addresses of persons employed in the Victorian Department of Education and Training. The email reads:
Hi All
It is with a very heavy heart that I am having to resign. I have spent yet another month with no money, and as such this role is no longer sustainable for either my mental health of physical health.
I am happy to offer until 14th Nov 2025 so as to limit the impact to my schools.
Warmest regards
Gemma
[9]
Mr Brumen responded to the email the following day at 11.57am on 8 October 2025 in the following terms:
Dear Gemma,
I just tried to call you to discuss this matter directly but was unable to reach you.
This email is not only extremely disappointing but this conduct completely unacceptable and leaves me no choice but to stand you down effective immediately.
I am shocked that along with your resignation you have attempted to defame Bytewize directly to its clients with information that simply is not true and not accurate.
You are being paid a fair and generous wage, not only well above the award but you are actually in the higher pay bracket for most technicians in the TSSP program.
I have provided ongoing support to you during your tenure with Bytewize, especially during the numerous performance management related concerns that have been raised to you directly by Bytewize and also and relayed onto me by our client.
As per your Employment Agreement the formal procedure and company protocol for notification of resignation is to notify Bytewize management of your terminaon of employment, we then notify our clients directly.
It is not your right nor your place to take such action without explicit consent from Bytewize.
Based on this conduct and breach of contract, Bytewize will be standing you down effective immediately as we no longer wish to represent staff who act in this manner.
Please be advised you must to return all Department assets, keys and equipment including all school passwords to your schools immediately and without delay and no later that close of business Friday 10/10/2025.
Any further attempt to delay or withhold department owned assets or further attempts to damage the reputation of Bytewize will be taken very seriously and actioned accordingly.
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I do wish you all the best in your future endeavours.
Kind regards,
Adrian Brumen.
[10]
An employment separation certificate was later provided by Bytewize which recorded that Ms Moore’s employment had ceased on 9 October 2025. The separation certificate also stated that the email sent by Ms Moore to representatives of the Department of Education and Training was ‘in breach of operational procedures and viewed as unacceptable conduct by Bytewize management, based on his actions his notice period was waived’.
Decision of the Deputy President
[11]
In the Unfairness Decision, the Deputy President initially dealt with the question of whether Ms Moore had been dismissed for the purposes of s 386 of the FW Act. The Deputy President indicated (at [10]) that he did not accept that the email sent by Mr Brumen to Ms Moore on 8 October 2025 simply served to stand her down noting that the employment agreement contains no stand down clause and that the circumstances did not enliven the power to stand down an employee in s 524 of the FW Act.
[12]
The Deputy President stated (at [11]) that he was instead satisfied that Ms Moore was dismissed at the initiative of Bytewize on 8 October 2025 and that this constituted a dismissal for the purposes of s 386(1)(a) of the FW Act because Bytewize had elected to bring the employment to an end with immediate effect on 8 October 2025. For completeness, the Deputy President indicated (at [12]) that, for the purposes of s 386(1)(b), he was not satisfied that Ms Moore had been forced to resign because, although there had been issues between the parties, he did not consider that the conduct of Bytewize was intended to bring Ms Moore’s employment to an end or that resignation was the probable result of the conduct of Bytewize because she had no effective or real choice but to resign.
[13]
The Deputy President (at [14]-[22]) considered (to the extent relevant) each of the factors set out in s 387 in assessing whether Ms Moore’s dismissal was harsh, unjust or unreasonable. In relation to whether there was a valid reason for the dismissal based on capacity or conduct for the purposes of s 387(a), the Deputy President accepted that the circulation of Ms Moore’s resignation email so widely was unnecessary and a potential source of embarrassment to Bytewize and its commercial interests. However, the Deputy President concluded (at [15]) that the communication did not rise to such a level as to constitute a valid reason for the dismissal related to capacity or conduct.
[14]
Having considered the remaining factors set out in s 387, the Deputy President concluded (at [23]) that he was satisfied that the dismissal was unfair. The Deputy President observed that Ms Moore ‘was prepared to serve a notice period but [Bytewize] elected to bring forward the cessation of her employment in a manner I consider, on a fair reading of the Employment Agreement, was unjust and unreasonable’. The Deputy President said (at [24]) that he was not persuaded that reinstatement was appropriate and that he would issue a further decision in relation to the question of compensation.
[15]
In the Compensation Decision, the Deputy President described (at [3]-[6]) the approach adopted by the Commission in determining the amount of compensation that should be awarded
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in an unfair dismissal case under s 392, including by reference to the approach in Sprigg v Paul Licensed Festival Supermarket (1998) 88 IR 21 (Sprigg), and indicated he had taken into account each of the considerations listed in s 392(2). For the purposes of s 392(2)(c), the Deputy President (at [7]-[8]) assessed the Ms Moore’s employment would have continued only for another five and a half weeks because that was the expiration of the notice period given by Ms Moore. The total remuneration she would have earned in that period was $9,974.19 (including superannuation).
[16]
For the purposes of considering the remuneration earned by Ms Moore from the date of dismissal to the date of any order for the purposes of s 392(2)(e) and reasonably likely to be earned to the date compensation is paid for the purposes of s 392(2)(f), the Deputy President said:
[10] The Applicant was unemployed for just 21 weeks following her dismissal until commencing part time in a new role on 3 March 2026. From this new role, she disclosed earning $25.30 gross per hour for a 15.5 hour working week ($392.15 per week). Therefore, for the 10 week period 3 March 2026 to date, I have assessed the gross earnings of the Applicant for the purposes on s.392(2)(e) of the Act to be $3,921.15 plus $470.54 superannuation ($4,391.69).
[11] To be added to this is the amount assessed for the purposes of s.392(2)(f), i.e. any income reasonably likely to be earned by the Applicant between now and the actual compensation. I assess the Applicant’s gross income for this forthcoming 3-week period to be $1,176.45. As such, the gross amount for the purposes of ss.392(2)(e) and (f) is $5,568.14.
[12] Any deduction for contingencies is to be applied to prospective losses, that is a loss occasioned after the date of the hearing. However, based on the factual scenario before me, I am not persuaded to make any discount for contingencies.
[17]
The Deputy President (at [13]-[19]) then considered (again to the extent relevant) the other factors set out in s 392(2), (3) and (4) and the compensation cap in s 392(5) and (6). The Deputy President concluded (at [20]) that the appropriate amount of compensation to be awarded to the Applicant is $4,406.05 gross less taxation required by law ($9,974.19 – $5,568.14 = $4,406.05 gross).
Permission to appeal and standard on appeal
[18]
Permission is required to appeal under s 604(1) of the FW Act. Section 604(2) provides that the Commission must grant permission to appeal if the Full Bench is satisfied that it is in the public interest to do so. The Commission generally then has a discretion as to whether to grant permission to appeal, even if it is not satisfied an appeal is in the public interest. However, the present appeal relates to a decision under Part 3-2 of the FW Act and is one to which s 400(1) applies. Section 400(1) stipulates that the Commission can only grant permission to appeal if it is satisfied that the grant of permission to appeal is in the public interest. The test in s 400(1) is stringent, imposing a higher threshold for permission to appeal with respect to decisions made in unfair dismissal proceedings.
[19]
If permission to appeal is granted, an appeal under s 604(1) is by way of rehearing such that the Full Bench may exercise its powers on appeal only if it finds there is error in the first instance decision: Helensburgh Coal Pty Ltd v Bartley [2025] HCA 29; (2025) 99 ALJR 1185 at [53] (Gageler CJ, Gordon and Beech-Jones JJ). What will constitute error depends on the
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nature of the decision subject of the appeal. Whether a person has been ‘dismissed’ for the purposes of s 386 of the FW Act is a question of law such that the question on appeal (if permission is granted) is simply whether the conclusion at first instance was correct on the facts as found. Whether a dismissal was harsh, unjust or unreasonable, and the assessment of the amount of compensation to be awarded, involve discretionary decisions such that error of the nature described in House v The King (1936) 55 CLR 499 must be demonstrated.
Appeal by Bytewize
[20]
It is convenient to first consider Bytewize’s appeal. The notice of appeal identifies a single ground of appeal which asserts that the decision involved an error of fact and/or reasoning in finding that there were no relevant conduct issues, when material evidence before the decision-maker indicated that conduct was a central issue. Although no amended notice of appeal was filed, Bytewize’s written submissions identified five grounds of appeal. We have assumed Bytewize advances the five grounds set out in its written submissions.
[21]
Bytewize’s notice of appeal was filed outside the 21 day time limit in rule 128(2)(a) of the FWC Rules and it requires an extension of time under rule 128(2)(c). A question arises as to the length of the extension which is required. To the extent that Bytewize seeks to appeal the Unfairness Decision, it arguably requires a longer extension. However, no orders were made in the Unfairness Decision and the Deputy President made orders only in the Compensation Decision. We consider it was open to Bytewize to appeal within 21 days of the Compensation Decision, including on the basis that the orders made in that decision were based on errors alleged to exist in the Unfairness Decision.
[22]
An extension of time is nonetheless required. The 21 day time limit expired on 11 June 2026 and the notice of appeal was filed on 15 June 2026. Bytewize contends that the delay was limited, the appeal raises substantive issues in relation to the characterisation of resignation and that no substantial prejudice will be caused to Ms Moore by the extension. We also apprehend that Bytewize did not initially consider it worthwhile to appeal until it was aware Ms Moore had appealed and there would be an appeal in any event. Although the FWC Rules do not make provision for a cross-appeal to be filed after receipt of a notice of appeal (compare rule 36.22 of the Federal Court Rules 2011 (Cth)), that circumstance is relevant in assessing whether further time to appeal should be allowed under rule 128(2)(c). In the circumstances, we consider it is in the interests of justice for further time to be allowed for Bytewize to file its notice of appeal to 15 June 2026.
[23]
Bytewize sought to rely on one additional document on appeal being an email from a representative of the Department of Education to Mr Brumen dated 24 March 2022 concerning Ms Moore’s work. The Full Bench is able to receive further evidence on appeal under s 607(2). The principles ordinarily applied to the discretion to admit new evidence on appeal are set out in Akins v National Australia Bank (1994) 34 NSWLR 155 where Clarke JA identified (at 159) three conditions to be met before fresh evidence can be admitted: (1) it must be established that the evidence could not have been obtained or adduced with reasonable diligence for use at first instance; (2) it must be evidence which is of such a high degree of probative value that there is a probability that there would have been a different result at first instance; and (3) the evidence must be credible. It is, of course, permissible to depart from the principles set out in Akins in an appropriate case. We are not satisfied it is appropriate to exercise our discretion to admit the
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further document as new evidence on appeal. The document could have been adduced at first instance but was not. We are also not satisfied it is relevant to any issue raised on appeal much less that it would have resulted to a different outcome at first instance.
[24]
Grounds 1, 2, 4 and (in part) 5 concern the finding of the Deputy President that Ms Moore was dismissed for the purposes of s 386. As we understand the submissions, grounds 1 and 2 contend that Ms Moore had communicated a clear and unequivocal intention to resign on 7 October 2025 and that she had no legal entitlement to continue her employment until 14 November 2025 because her employment agreement only required 30 days’ notice to be given. Bytewize contends that the Deputy President’s reasoning failed to give sufficient weight to the operative effect of Ms Moore’s resignation and failed to consider that the stand down correspondence, notification of alleged breaches and misconduct and removal of active engagement with clients occurred only after the notice of resignation. Ground 4 contends that, in characterising the cessation of the employment, the Deputy President failed to consider the context, including Department communications, client concerns, repeated compliance issues and communication obligations. As a consequence of these errors, Bytewize submits that the Deputy President was wrong to conclude that it was not Ms Moore’s conduct that initiated the termination. Ground 5(a) and (b) contend that the Deputy President gave inadequate reasons as to why the resignation did not result in the employment relationship ending by resignation and in relation to the circumstances surrounding the resignation.
[25]
Bytewize’s notice of appeal and its submissions do not, in our view, establish any arguable error in the decision of the Deputy President that Ms Moore was dismissed for the purposes of s 386(1)(a). Many decisions of the Commission have recognised that, in circumstances in which an employee has given actual notice of their resignation, an employer’s unilateral decision to end the employment during the notice period constitutes a termination ‘on the employer’s initiative’: Terex Australia Pty Ltd v Cameron [2025] FWCFB 205 at [11] and the authorities referred to therein. That approach is consistent with decisions of various courts: see, for example, Consolidated Press Ltd v Thompson [1952] SR (NSW) 75 at 79-80 (Street CJ), Bell v Gillen Motors Pty Ltd (1989) 24 FCR 77 at 87-88 (Wilcox J), Siagian v Sanel Pty Ltd (1994) 54 IR 185 at 198 (Wilcox CJ) and Austin & Partners Pty Ltd v Spence (unreported, NSWSC, Windeyer J, 1 December 1998) at [24]-[25]. The conclusion is also consistent with the plain language of s 386(1)(a). A resignation on notice brings the employment to an end upon the expiry of the notice. If the employer ends the employment on an earlier day, the employment is terminated on that day on the initiative of the employer.
[26]
We discern no arguable error in the decision of the Deputy President that Ms Moore was dismissed. As the Deputy President observed, although the email from Mr Brumen on 8 October 2025 referred to Ms Moore being stood down, it is plain from the language used that Bytewize intended to immediately bring the employment to an end as a result of Ms Moore’s conduct in sending her resignation email to representatives of the Department of Education. That is consistent with the employment separation certificate which was subsequently issued by Bytewize. Ms Moore had given notice of her resignation but only with the employment to end on 14 November 2025. The employment was brought to an end on 8 October 2025 by Bytewize unilaterally and without her consent. The fact that Ms Moore had earlier given notice of resignation, and the surrounding circumstances referred to by Bytewize on appeal, are irrelevant to the question of whether she was dismissed by Bytewize on 8 October 2025. The reasons given by the Deputy President were plainly adequate.
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[27]
Ground 3 (as articulated in Bytewize’s written submissions) alleges error in the conclusion of the Deputy President that Ms Moore would have continued to be employed for a further five and a half weeks if she had not been dismissed on 8 October 2025 when assessing compensation. Bytewize submits that the Deputy President does not explain why the employment would have continued beyond the contractual notice period of 30 days set out in clause 17.1(a) of the employment agreement. Ground 5(c) and (d) allege inadequate reasons were given for this finding. We are also unable to discern any arguable error in the decision of the Deputy President in this respect. Clause 17.1(a) of the employment agreement required 30 days’ notice of termination to be given. It does not prohibit a longer period of notice. If an employee gives a longer period of notice, the employment does not terminate until the expiry of the notice. That is what Ms Moore did. The contractual notice period is not inconsistent with the Deputy President’s conclusion. The assessment as to whether the employment would have continued that long was necessarily speculative. To the extent that Bytewize contends the employment relationship would not have continued in the factual circumstances of the case, no error has been identified in the speculative determination made by the Deputy President. Again, the Deputy President did not fail to give adequate reasons.
[28]
In the absence of any arguable error, we are not satisfied it is in the public interest to grant permission to appeal with respect to Bytewize’s appeal. As a result, permission to appeal must be refused by reason of s 400(1).
Appeal by Ms Moore
[29]
Ms Moore’s appeal raises a narrow but important question in relation to the assessment of compensation in an unfair dismissal case. The ground set out in Ms Moore’s notice of appeal is concise and apt. It is as follows:
I believe that the factors in the Fair Work Act were interpreted incorrectly and that the compensation should not have been reduced because the work periods would not have overlapped, as well as deductions made included amounts you earned more than 6 months after the dismissal.
[30]
Ms Moore was unemployed throughout the whole of the five and a half week period during which the Deputy President assessed her employment would have continued had she not been dismissed. She received no remuneration from work in that period. She only obtained alternative employment in March 2026. Ms Moore contends that the compensation she received by reference to the loss of earnings in the five and a half week period following her dismissal should not have been reduced by reason of earnings she received from work she obtained only many months later.
[31]
We are satisfied that it is in the public interest to grant permission to appeal with respect to Ms Moore’s appeal. Ms Moore’s appeal raises an important question in relation to the guidance provided in Sprigg which is commonly applied by members of the Commission in assessing compensation in unfair dismissal cases and in relation to the proper understanding of the considerations referred to in s 392(2)(e) and (f) which the Commission is required to take into account in determining the quantum of compensation. In short, we accept what Ms Moore says in her notice of appeal in relation to permission which is that: ‘[m]y situation was quite
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novel and that there are not many decisions about a situation like this, and that it is unjust if the law is applied in the way it was here’.
[32]
Section 390(1) permits the Commission to order reinstatement, or the payment of compensation, if it is satisfied a person was protected from unfair dismissal and the person has been unfairly dismissed. Section 390(3) provides that an order for the payment of compensation must not be made unless the Commission is satisfied that reinstatement is inappropriate and it considers that an order for payment of compensation is appropriate in all the circumstances of the case. The Deputy President was satisfied as to all of those matters in Ms Moore’s case so as to permit a compensation order to be made.
[33]
The nature and limits on an order for the payment of compensation in an unfair dismissal case are set out in s 392. For present purposes, the relevant parts of s 392 are:
392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a)
the effect of the order on the viability of the employer’s enterprise; and
(b)
the length of the person’s service with the employer; and
(c)
the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d)
the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e)
the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(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; and
(g)
any other matter that the FWC considers relevant.
…
[34]
Section 392(3) provides that the Commission must reduce the amount of compensation on account of misconduct, s 392(4) provides that an order for compensation must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt and s 392(5) and (6) set a cap on the amount of compensation. None of those provisions are relevant to this matter.
[35]
Members of the Commission frequently invoke the approach in Sprigg when assessing the amount to order by way of compensation in an unfair dismissal case. In Sprigg, the Full Bench (at 29) adopted a five step approach to determining compensation as follows:
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.
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STEP 2: Deduct moneys earned since termination. Workers compensation payments are deducted but not social security payments. The failure of an applicant to mitigate his or her loss may lead to a reduction in the amount of compensation awarded.
STEP 3: The remaining amount of compensation is discounted for contingencies.
STEP 4: The impact of taxation is calculated to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.
STEP 5: The legislative cap on compensation is applied.
[36]
Sprigg was decided under the unfair dismissal provisions of the Workplace Relations Act 1996 (Cth). It has, nonetheless, been treated a providing useful guidance in the context of the FW Act: This approach was articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages [2013] FWCFB 431; (2013) 229 IR 6 (Bowden v Ottrey). It has been emphasised that, if the application of the Sprigg formula ‘yields an amount which appears either clearly excessive or clearly inadequate’, the Commission should reassess the assumptions made in reaching that amount: Smith v Moore Paragon Australia Ltd (2004) 130 IR 446 at [32]. The application of the guidelines in Sprigg is subject to the overarching requirement to ensure that the level of compensation is appropriate having regard to all the circumstances of the case: Double N Equipment Hire Pty Ltd (t/as A1 Distributions) v Humphries [2016] FWCFB 7206 at [17].
[37]
The formula in Sprigg must be understood in the context of the power being exercised. The discretion of the Commission to determine the appropriate amount of compensation in an unfair dismissal case is broad and will not always be amenable to mathematical calculation. Nonetheless, an order for the payment of compensation under ss 390(1) and 392(1) must be an order that the employer pay ‘compensation … in lieu of reinstatement’. Compensation must generally be assessed by reference to loss suffered as a result of the event which triggered the entitlement to compensation and the decision-maker must be satisfied that there exists an appropriate causal connection between that event and the loss claimed: Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333; (2011) 193 FCR 526 at [423] (Barker J); Patrick Stevedores Holdings Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (No 3) [2021] FCA 348; (2021) 304 IR 280 at [29] (Lee J).
[38]
The primary form of loss likely to be suffered by an employee who has been dismissed is the denial of the opportunity to earn the income associated with the employment from which they have been removed. Step 1 in Sprigg endeavours to capture that loss by requiring the Commission to estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment. It is possible that a dismissed employee’s claim for compensation in an unfair dismissal case might include other forms of loss as a result of being deprived of their employment. Section 392(2)(b) acknowledges that the length of service of an employee may be relevant in assessing the amount of compensation in an unfair dismissal case. Whether such loss should be reflected in an order for compensation would depend on the circumstances, noting that s 392(4) prohibits an order for compensation including a component for shock, distress or humiliation. It is unnecessary to consider those matters in the present appeal.
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[39]
Ms Moore’s appeal concerns the second step in Sprigg. That step is described as requiring the deduction of moneys earned since termination from the amount of remuneration the employee would have received (or been likely to receive) if the employer had not terminated the employment. If a dismissed employee obtains alternative employment which replaces the income lost as a result of the dismissal, the compensatory focus of an order under ss 390(1) and 392(1) dictates that, ordinarily at least, the amount of compensation which should be awarded by reference to loss of earnings will be reduced by the amount earned in the replacement employment. That reflects the approach in assessing damages for wrongful dismissal in breach of contract where avoided loss is not recoverable. A classic statement of the measure of an employee’s damages for wrongful dismissal is found in the statement of Jordan CJ in Bagnall v National Tobacco Corporation of Australia Ltd (1934) 34 SR (NSW) 421 at 429:
In the case of wrongful dismissal, the measure of damage is the amount of wages or salary which the employee has been prevented from earning … with a deduction of the value to him of the time placed at his disposal by his dismissal – i.e., what he has earned, or might have earned if he could by due diligence have obtained similar suitable employment elsewhere during the period …
[40]
Post-dismissal earnings are relevant to the extent that they reduce the amount of loss suffered by the dismissed employee. This was recognised in the clarification of the Sprigg formula provided by the Full Bench in Ellawala v Australian Postal Corporation (unreported, AIRC(FB), S5109, 17 April 2000) (Ellawala). In Ellawala, the Full Bench explained the second step as follows (emphasis added):
[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”. This amount is then reduced by deducting monies earned since termination. Only monies earned during the period from termination until the end of the “anticipated period of employment” are deducted. An example may assist to illustrate the approach to be taken.
[35] In a particular case the Commission estimates that if the applicant had not been terminated then he or she would have remained in employment for a further 12 months. The applicant has earned $3,000 a month for the 18 months since termination, that is $54,000. Only the money earned in the first twelve months after termination — that is $36,000 — is deducted from the Commission’s estimate of the applicant’s lost remuneration. Monies earned after the end of the “anticipated period of employment”, 12 months after termination in this example, are not deducted. This is because the calculation is intended to put the applicant in the financial position he or she would have been in but for the termination of their employment.
[41]
The Full Bench made clear that only monies earned during the period of anticipated further employment are to be deducted in determining the amount of compensation. That is consistent with the compensatory purpose of such an order. If an employee is to be compensated for loss of earnings during an identified period following dismissal, the amount of the loss suffered in that period is only reduced by earnings received by the employee from replacement employment (or other work) during that period or as a result of a failure by the applicant to act reasonably to mitigate their loss in that period.
[42]
In Bowden v Ottrey, the Full Bench acknowledged (at [23]) that the statutory provisions applied in earlier cases (namely, s 170CH(7) of the Workplace Relations Act 1996 (Cth), prior
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to the Work Choices amendments, and later s 654(8)) did not contain terms similar to ss 392(2)(e) and (f). The Full Bench nonetheless regarded Ellawala as providing appropriate guidance on the basis that s 392(2)(e) and (f) reflect the approach adopted under the Workplace Relations Act 1996 (Cth) under which post dismissal remuneration of the dismissed employee was ordinarily considered by the Australian Industrial Relations Commission in determining an amount of compensation. The Full Bench was, with respect, correct to do so.
[43]
Section 392(2)(e) and (f) require the Commission to take into account the amount of any remuneration earned by a person from employment or other work between the dismissal and the date of the order (and between the making of the order and the actual payment of the compensation). Those subsections do not require that, in all cases, the total amount of the remuneration earned by the dismissed employee in those periods be deducted from the amount of compensation otherwise calculated to be appropriate. It is sufficient to provide some examples as to why that is so. If an employee is earning income from secondary employment at the same time as undertaking the employment from which they were dismissed, earnings which the employee continues to receive from the secondary employment after dismissal should not be deducted from the amount of the employee’s loss. The earnings from the secondary employment do not, in that situation, replace the earnings lost as a result of the dismissal (unless the employee increased the amount of work being performed in the secondary employment after dismissal).
[44]
If an employee experiences a period of unemployment following dismissal and then obtains alternative employment which attracts higher remuneration, the loss of earnings of the employee will stop at the time they commence the new employment. However, it will not ordinarily be appropriate to set off the employee’s loss of earnings during the period of unemployment by reference to higher earnings later received in alternative employment. In Australasian Meat Industry Employees’ Union v Sunland Enterprises Pty Ltd (1988) 25 IR 137, for example, two employees were dismissed in contravention of s 5 of the Conciliation and Arbitration Act 1904 (Cth). In assessing the damages to be awarded to one of the employees, it was submitted that he had incurred no loss because, after a period of unemployment, the employee obtained a job in which he received higher wages than the job from which he had been dismissed. Gray J rejected the submission. His Honour said (at 146):
In my view, it would be unjust to such a person to allow an employer convicted of an offence under s 5 to take advantage of higher earnings which the dismissed employee may have earned during part of the intervening period. There can be no proper analogy with the obligation of a plaintiff to mitigate damages. There is no reason why a dismissed employee should be regarded as working for the benefit of his or her former employer when earning a higher wage, particularly if that employee earned no wage, or a lower wage, for part of the intervening period. To take into account higher wages earned during part of the relevant period against lower wages earned during another part might lead to difficult comparisons. One job may involve remoteness, longer hours, less convenient shifts, or other factors of hardship, for which the employee receives more. In my view, the correct principle is to award to the dismissed employee reimbursement of the full wage which would have been earned during any period for which the employee has been unemployed after the date of dismissal, together with the difference between what was actually earned and what would have been earned during any period for which the employee has been employed at a lesser wage, and to ignore any period during which the employee has been employed at a wage equal to or greater than that which would have been earned.
[2026] FWCFB 217
13
[45]
In our view, the same approach should generally be adopted in assessing compensation that should be awarded in an unfair dismissal case.
[46]
In this case, the Deputy President assessed that Ms Moore’s employment would have continued for a further five and a half weeks had she not been dismissed. That period would have ended on 14 November 2025. During that period, Ms Moore was unemployed, received no income from work, and acted reasonably to mitigate her loss. Ms Moore only received income from alternative employment from March 2026. Although the Deputy President was required by s 392(2)(e) and (f) to take account of those earnings, he was not required to reduce the amount calculated by reference to the loss caused in the five-and-a-half-week period immediately following her dismissal by reference to earnings received many months later. There was, with respect, no proper basis for the amount of compensation to be awarded with respect to the loss of earnings suffered by Ms Moore during the anticipated period of employment to be reduced by reason of moneys she earned after that period.
[47]
The consequence is that the Deputy President erred in the assessment of compensation in the Compensation Decision. Bytewize should have been ordered to pay Ms Moore compensation equal to the full amount of the earnings she would have received had the employment continued until 14 November 2025 which the Deputy President calculated to be $9,974.19 (including superannuation). That amount represents the loss of earning suffered by Ms Moore as a result of her dismissal on the findings of the Deputy President. It will put Ms Moore in the financial position she would have been in but for the termination of her employment. The appeal should be allowed and the decision and order made by the Deputy President on 21 May 2026 should be varied such that Bytewize is ordered to pay Ms Moore an additional sum of $5,568.14.
Orders of the Full Bench
[48]
For the reasons given in this decision, the Full Bench orders:
(a)
With respect to the appeal in Matter Number C2026/7913:
i.
Further time be allowed for Bytewize Pty Ltd to file its notice of appeal to 15 June 2026 under s 128(2)(c) of the Fair Work Commission Rules 2024 (Cth); and
ii.
Permission to appeal is refused.
(b)
With respect to the appeal in Matter Number C2026/7888:
i.
Permission to appeal is granted;
ii.
The appeal be allowed; and
iii.
The decision [2026] FWC 1860 and order PR810256 made on 21 May 2026 in Matter Number U2025/17159 are varied such that Bytewize Pty Ltd is ordered to pay Gemma Moore an additional amount of $5,568.14 gross (less taxation required by law) on or before 28 August 2026.
[49]
An order will be separately issued requiring payment of the additional amount of compensation.”
Appeal by Moore v Bytewize Pty Ltd [2026] FWCFB 217 delivered 14 August 2026 per Gibian VP, Saunders DP and Wright DP