This portion of an unfair dismissal decision of the Fair Work Commission deals with the controversial issue of covert recordings in the workplace and unfair dismissal, specifically whether reinstatement as a remedy is appropriate.
“Conclusion of Harsh, Unjust or unreasonable.
[149] Having considered the evidence, I have concluded the Respondent did not have a valid reason for dismissal. Whilst the Respondent followed conventional procedural steps, its ultimate decision to dismiss Mr Stoddard, in all of the circumstances of this case was harsh, unjust and unreasonable.
Remedy
[150] Mr Stoddard in his evidence in chief said that he was open to working for the Respondent again, however acknowledged that the sites he had been employed at were now closed.
[151] During cross examination, Mr Stoddard was asked if he sought reinstatement and he said if it was offered, he would accept it, but he did not seek it. He said if there was no reinstatement he wanted compensation. After further questioning, his evidence was that the remedy he wanted was compensation.
[152] The Respondent submitted in previous cases the Commission has regarded secret recording of work colleagues as a barrier to reinstatement. The Respondent relied on the decision of Deputy President Bell in Janssens v Rowan Bustin Pty Ltd [2023] FWC 623 at [14] where the Deputy President said as follows:
“Mr Janssens also produced some recordings of meetings he had with the Respondent’s directors. I have listened to those files. The Respondent’s material indicates it objected to those recordings. Mr Janssens says the directors knew they were being recorded. I disagree, as at least one of those conversations refers to a director stating (on the apparent production by Mr Janssens of the recording device) that Mr Janssens was required to ask permission and what he was doing was “illegal”. Mr Janssens’ replied “what are you going to do?” On the material before me, as the recording was made in Victoria, I am not satisfied that the recording was unlawful. That said, the covert recording of work colleagues is plainly conduct destructive of a relationship of trust and confidence and it would likely tell against any order for reinstatement were Mr Janssens’ application to proceed.”
(reference omitted)
[153] I agree with the Respondent that the action of Mr Stoddard secretly recording work colleagues is relevant to the issue of trust and confidence. In any event, Mr Stoddard reached the conclusion himself during his evidence that the remedy he sought was compensation. In all of the circumstances, I have concluded reinstatement is inappropriate.
[154] The Respondent submitted that 26 weeks wages for Mr Stoddard at the time of dismissal was $83,206.88. This figure did not exceed half the high-income threshold immediately before the dismissal, which was $87,500.
[155] It is apparent from the evidence that Mr Stoddard was becoming increasingly disillusioned with the Respondent in the later part of his period of employment. This is
demonstrated by his view that he did not trust supervisors and felt a need to make a secret recording. It is also the case that his tenure with the Respondent was not particularly long.
[156] Applying the approach in Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21 I must estimate the remuneration that Mr Stoddard would have received, or would have been likely to receive had he not been dismissed. I estimate it is likely Mr Stoddard would have remained employed for no more than another 16 weeks. Dividing $83,206.88 by 26 weeks results in a weekly amount of $3,200.26. $3,200.26 multiplied by 16 equals $51,204.16.
[157] Mr Stoddard was paid 4 weeks’ notice and was stood down during this time. I intend to
deduct this 4 week period for which Mr Stoddard was paid from the amount of $51,204.16.
$51,204.16 minus $12,801.04 equals $38,403.12.
[158] I have considered the evidence concerning mitigation. I accept that Mr Stoddard had been applying for other employment on Seek and had not received feedback or responses to his applications for other employment. I also accept Mr Stoddard suffered some adverse mental health impacts from his termination, as supported by the evidence he provided from a treating medical practitioner. I do not intend to make any further reductions to the amount of compensation based on a failure to mitigate.
[159] As the amount of compensation is assessed on a period of time that has passed, it is unnecessary to consider any further discounting based on contingencies.
[160] I have concluded that Mr Stoddard making a secret recording of work colleagues on his smart watch without their knowledge is a form of misconduct that contributed to the Respondent’s decision to dismiss him. I am satisfied it is appropriate to reduce the amount of compensation I would otherwise order by a further 20% on account of that misconduct.
$38,403.12 minus 20% equals $30,722.50.
Conclusion
[161] I have determined that Crushing Services International Pty Ltd should pay Mr Martin Stoddard an amount of $30,722.50 gross, taxed according to law within 14 days of the date of this decision. Further, an 11.5% superannuation contribution on that amount should be paid into Mr Stoddard’s nominated superannuation account. An order will be issued separately and concurrently with this decision to that effect.”
Stoddard v Crushing Services International Pty Ltd [2025] FWC 2673 delivered 9 September 2025 per Simpson C