Remedies for unfair dismissal

Here is a decision of the Fair Work Commission in an unfair dismissal case which is an excellent summary of the legal principles which apply to the remedies available for unfair dismissal including reinstatement of employment.

“Application for an unfair dismissal remedy – remedy

[1] On 30 May 2023, I issued a decision (liability decision)1 which determined that Mr Umit

Deniz had been unfairly dismissed from his employment with the respondent, Alvaro Transport

Pty Ltd.

[2] Being satisfied that Mr Deniz (a) made an application for an order granting a remedy

under s 394 of the Fair Work Act 2009 (Cth) (Act), (b) was a person protected from unfair

dismissal, and (c) was unfairly dismissed within the meaning of s 385 of the Act, the

Commission may order Mr Deniz’s reinstatement, or the payment of compensation to Mr Deniz

pursuant to s 390(1).

[3] This decision determines the issue of remedy.

Procedural matters

[4] Mr Deniz’s application proceeded to a remedy hearing before me on 12 July 2023.

[5] Permission was granted to the respondent to be represented by a lawyer at the remedy

hearing. I was satisfied that s 596(2)(a) of the Act was engaged in circumstances where (a) Mr

Deniz’s position with respect to the question of reinstatement was not readily discernible, and

(b) Mr Deniz continues to receive workers compensation payments following a workplace

injury on 2 May 2022. The application of these matters to the considerations relevant to the

order of any remedy under s 390(1) of the Act gives rise to some complexity. I therefore

determined to exercise my discretion to grant permission to the respondent on this basis.2

[6] It was not possible to conclude the remedy hearing, which was conducted by Microsoft

Teams. Mr Deniz refused to continue participating in the hearing and ultimately terminated his

connection to the video link during the respondent’s closing submissions. The hearing was

adjourned, and directions were issued on 12 July 2023 for the respondent to file the balance of

its closing submissions in writing. Mr Deniz was invited to file and serve a response to (a) the

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witness statements relied upon by the respondent on the question of remedy, and (b) the

respondent’s closing submissions.

[7] In response to the 12 July 2023 directions, Mr Deniz filed with the Commission a series

of submissions by way of emails dated 14 July 2023. I understand that these submissions are

responsive to:

(a) the two witness statements of Ms Sandy Makarov, Human Resources and Work,

Health and Safety Manager dated 12 July 2023 and the closing submissions of the

respondent, insofar as they deal with the payment of superannuation to Mr Deniz

since his dismissal; and

(b) the witness statement of the respondent’s Managing Director, Mr Mario Alvaro

dated 12 July 2023.

[8] Further, Mr Deniz sought an extension to file a report from his superannuation fund in

support of his position that he has not received superannuation payments from the respondent

since his dismissal, while he remains on Workcover. On 26 July 2023, Mr Deniz filed with the

Commission four emails which address, in summary, Mr Deniz’s position regarding the amount

of superannuation he says he has received from the respondent since 13 April 2022, the taxation

deducted from his Workcover payments, and a requirement that he attend his treating

practitioner.

Statutory framework

[9] Division 4 of Part 3-2 of the Act deals with remedies for unfair dismissal. Section 390

provides as follows:

390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the

payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal

(see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) the FWC may make the order only if the person has made an application under

section 394.

(3) the FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate;

and

(b) the FWC considers an order for payment of compensation is appropriate

in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.

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[10] The Commission may order a remedy for unfair dismissal when a person has been

unfairly dismissed and that person was protected from unfair dismissal. Section 381(1)(c) of

the Act emphasises that reinstatement is the primary remedy to be considered under Part 3-2 of

the Act. As specified by s 390(3), the Commission may order compensation only if it is satisfied

that reinstatement of the person is inappropriate and that an order for the payment of

compensation is appropriate in all the circumstances of the case.

[11] Accordingly, I consider first whether the reinstatement of Mr Deniz to his role as a

Grade 4 HR Truck Driver is “inappropriate.”

Consideration – reinstatement order

[12] It is not clear whether Mr Deniz seeks to be reinstated to his position. During the remedy

hearing, Mr Deniz gave evidence that he did not consider that he would be able to work with

the respondent in the future. However, Mr Deniz also submitted that he loved his job and if Mr

Alvaro acted as the “big man” and provided Mr Deniz with a chance, he would like to “get back

into [his] truck.”

[13] The respondent submits that it would be inappropriate to reinstate Mr Deniz. It considers

that the relationship is irrevocably damaged and, on any view, would not produce a productive

or safe workplace. The respondent submits that Mr Deniz’s behaviour during the remedy

hearing was argumentative and disrespectful and is consistent with the type of behaviour which

was found to give rise to a valid reason for the dismissal in the liability decision.3

[14] Mr Alvaro refers to a threat made to him by Mr Deniz during the course of these

proceedings.4 Mr Alvaro also relies upon a threat that Mr Deniz allegedly made to Mr Alvaro’s

son, who is also part of the respondent’s business, on or about 18 October 2022. In

circumstances where Mr Alvaro’s son did not give evidence in relation to this event, or at all, I

do not attribute any weight to the alleged incident in my consideration.

[15] Mr Alvaro contends that he has lost trust and confidence in Mr Deniz and does not wish

to see him return to employment with the respondent.

[16] The Full Bench in Thinh Nguyen and Anor v Vietnamese Community in Australia t/a

Vietnamese Community Ethnic School South Australian Chapter5

considered the impact of a

loss of trust and confidence on the question of whether reinstatement is appropriate. The Full

Bench distilled the following propositions:6

(a) Whether there has been a loss of trust and confidence is a relevant consideration in

determining whether reinstatement is appropriate but while it will often be an

important consideration it is not the sole criterion or even a necessary one in

determining whether or not to order reinstatement.

(b) Each case must be decided on its own facts, including the nature of the employment

concerned. There may be a limited number of circumstances in which any ripple on

the surface of the employment relationship will destroy its viability but in most cases

the employment relationship is capable of withstanding some friction and doubts.

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(c) An allegation that there has been a loss of trust and confidence must be soundly and

rationally based and it is important to carefully scrutinise a claim that reinstatement

is inappropriate because of a loss of confidence in the employee. The onus of

establishing a loss of trust and confidence rests on the party making the assertion.

(d) The reluctance of an employer to shift from a view, despite a tribunal’s assessment

that the employee was not guilty of serious wrongdoing or misconduct, does not

provide a sound basis to conclude that the relationship of trust and confidence is

irreparably damaged or destroyed.

(e) The fact that it may be difficult or embarrassing for an employer to be required to

re-employ an employee whom the employer believed to have been guilty of serious

wrongdoing or misconduct are not necessarily indicative of a loss of trust and

confidence so as to make restoring the employment relationship inappropriate.

[17] In the liability decision, I found that there was a valid reason for Mr Deniz’s dismissal.

It was determined that Mr Deniz’s statements to the respondent’s National HR & WHS

Manager, when considered collectively, demonstrated a pattern of threatening behaviour by Mr

Deniz. These statements had an effect on the National HR & WHS Manager’s feelings of

welfare and safety. I was therefore satisfied that Mr Deniz’s conduct gave rise to a sound, wellfounded and defensible reason for his dismissal.

[18] Mr Deniz’s submissions in response to the 12 July 2023 directions raise significant

doubt about whether, if reinstated, a workable employment relationship could be re-established

between Mr Deniz and the respondent’s directors. Mr Deniz submits as follows:

“Also I suggest u check all video and phone conference so Mario see I would stand up

to get my partner out of there which he caused tention after seeing her car.in every

meeting he has behaved in the same manner which would make me uncomftable to be

aro…”

[19] While the concluding statement is cut off, I understand that this submission responds to

paragraphs [8]-[9] of Mr Alvaro’s witness statement. These paragraphs concern Mr Deniz’s

conduct during the in-person liability hearing at the Commission, which arose in the context of

an argument between Mr Deniz and Mr Alvaro and resulted in the hearing being adjourned.7

I

discern from the above extract that Mr Deniz has sought to explain that the reason he stood up

during the first day of the liability hearing was to attend to his wife, who had started to cry, and

not to “stand over” Mr Alvaro.8 Further, Mr Deniz submits that Mr Alvaro’s behaviour would

make him feel uncomfortable to be around. This submission appears to be consistent with Mr

Deniz’s evidence that he does not consider that he would be able to work with the respondent

in the future.

[20] While acrimony may arise between parties from the existence of legal proceedings, this

is an irrelevant matter to take into account in determining whether reinstatement is appropriate.9

However, to the extent that a party’s behaviour sheds light upon the likely conduct and attitudes

towards the relationships of the parties in the workplace in the event of a reinstatement, this is

potentially relevant to the assessment of whether that remedy is appropriate.10 The hostility that

I observed between Mr Deniz and Mr Alvaro during the liability hearing suggests that any

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restored employment relationship would be perpetuated with ongoing resentment and has the

potential to create an unsafe work environment.

[21] The matters at [17] to [20] above collectively weigh heavily against the proposition that

a workable employment relationship can be re-established between Mr Deniz and the

respondent.

[22] In addition, I consider there is a likelihood that if reinstated, Mr Deniz may be dismissed

for misconduct a second time, having regard to the matters to which I refer at [42] of the liability

decision. These matters concern Mr Deniz’s foul and offensive language to describe the

National HR & WHS Manager. Mr Deniz’s conduct towards the National HR & WHS Manager

in this respect post-dates Mr Deniz’s dismissal and these matters were not taken into account

in the liability decision. It follows that this constitutes a sound reason to conclude that

reinstatement is not an appropriate remedy.11

[23] To be weighed against these matters is my conclusion in the liability decision that Mr

Deniz was recovering from a substantial workplace injury and was in a vulnerable position at

the time of his dismissal. Relevantly, the dismissal without due process at, occurred at a time

when Mr Deniz had capacity to commence a return-to-work program following the workplace

injury.12 Further, I determined that Mr Deniz may find it difficult to obtain alternative

employment as a consequence of the dismissal, including because of his age.

13 In this respect,

Mr Deniz contends that the termination of his employment has affected his “household” which

is taken to be a reference to his mental wellbeing and his personal relationships.

[24] On balance, having regard to all of the above matters, I am satisfied that an order

reinstating Mr Deniz to his position with the respondent is inappropriate. I consider the

circumstances of the dismissal whereby Mr Deniz was in a vulnerable position and could have

undertaken a return-to-work program, weigh in favour of making the order. However, these

circumstances are outweighed by the matters to which I refer at [21] and [22] above.

Significantly, the evidence before me reveals a deep level of hostility between the parties. In

the event that the respondent did not take steps to terminate Mr Deniz’s employment on the

basis of the matters at [22] above, I do not consider that parties would have the necessary trust

and confidence in each other such that a workable employment relationship could be

reestablished if a reinstatement order was made.

[25] Accordingly, I decline to make an order for reinstatement as I am satisfied for the

purposes of s 390(3)(a) of the Act that such an order is inappropriate.

Consideration – compensation order

[26] Having found that the reinstatement of Mr Deniz is inappropriate, I turn to the issue of

whether an order should be made for the payment of compensation to Mr Deniz. Under s

390(3)(b) of the Act, the Commission is not permitted to order the payment of compensation

unless it is appropriate in all the circumstances. Accordingly, the question of whether to order

a remedy in a case where a dismissal has been found to be unfair remains a discretionary one.14

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[27] In assessing compensation, the Commission is required, by s 392(2) of the Act, to take

into account all of the circumstances of the case, including the specific matters identified in

paragraphs (a)-(g) as follows:

(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.

[28] I consider all of the circumstances of the case below, and in undertaking this task apply

the long-established methodology for assessing compensation in unfair dismissal cases as

outlined by the Full Bench in Sprigg v Paul’s Licensed Festival Supermarket (Sprigg).15

[29] The approach in Sprigg is as follows:16

Step 1: Estimate the remuneration the Applicant would have received, or have been

likely to have received, if the employer had not terminated the employment

(remuneration lost).

Step 2: Deduct monies earned since termination.

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

Remuneration that the person would have received, or been likely to receive, if not dismissed

(s 392(2)(c))

[30] The consideration commences with an assessment of the remuneration that Mr Deniz

would have received, or would have been likely to receive, had he not been dismissed. This

requires an estimation of Mr Deniz’s anticipated period of employment;17 that is, how long Mr

Deniz would have remained in employment but for the dismissal, and the remuneration he

would have received, or been likely to receive, during that period.18 There is an element of

speculation in in this counterfactual task as it involves an assessment of what would have been

likely to happen in the future had the employee not been dismissed.

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[31] Mr Deniz contends that his employment with the respondent would have been likely to

continue for ten years. The respondent takes a contrary view. It submits that Mr Deniz’s

employment would have concluded within a short period of time following the date of his

dismissal. In support of its position, the respondent contends that:

(a) but for the procedural failures associated with the manner in Mr Deniz was

dismissed, the employment would have been terminated fairly having regard to the

valid reason for the dismissal; and

(b) there is no evidence that Mr Deniz would have modified the behaviour that gave rise

to a valid reason for the dismissal, such that his employment would have ended “in

the not too distant” future.

[32] The respondent relies upon a certificate of capacity dated 19 September 2022 which

deemed Mr Deniz to be “suitable to go back to work 5 days per week, from 6am to 2pm, but if

patient develops pain in Left foot can rest.”19 The certificate of capacity specifies that Mr Deniz

was suitable for the performance of duties on this basis from 12 September 2022 to 9 October

2022.

[33] While the 19 September 2022 certificate of capacity post-dates Mr Deniz’s dismissal

on 15 September 2022, it provides contemporaneous evidence of Mr Deniz’s capacity to

perform work from 12 September 2022. The certificate of capacity was not before the

Commission during the proceedings which led to the liability decision. The most recent medical

evidence available at that time was an 8 September 2022 certificate by Mr Deniz’s general

practitioner.20 I accept that the certificate of capacity dated 19 September 2022 demonstrates

that Mr Deniz was fit to perform duties for eight hours per day, five days per week, in the period

between 12 September 2022 and 9 October 2022. However, this could not have been a fact

known to the respondent prior to the date of the certificate of capacity on 19 September 2022.

[34] I estimate that had Mr Deniz not been dismissed, he would have continued to be

employed by the respondent for a further period of eight weeks. I have reached this view having

regard to:

(a) the likelihood of the respondent taking steps to terminate Mr Deniz’s employment

in the short-term having regard to the matters at [22] above, being conduct concerns

that were not taken into account in the liability decision; and

(b) Mr Deniz’s short period of employment of seven months.

[35] The matters at [34] weigh strongly against Mr Deniz’s position that he would have been

employed for further ten-year period, and perhaps until he transitioned to a transport

management or co-ordination role as contended. There is no evidence that the respondent had

contemplated transitioning Mr Deniz to a managerial position, or that it had consulted with Mr

Deniz about a possible future opportunity in this respect.

[36] Mr Deniz’s dismissal occurred on Thursday 15 September 2022. Had the dismissal not

occurred, Mr Deniz would likely have continued to receive workers compensation payments on

16 September and 19 September 2022. This is because the 19 September 2022 certificate of

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capacity had not yet been produced. It is noted that 17 September and 18 September 2022 were

a Saturday and Sunday.

[37] To identify what Mr Deniz would have been paid for 16 September and 19 September

2022, I have had regard to a spreadsheet prepared by the respondent’s insurer.21 The spreadsheet

relevantly demonstrates that for the period since Mr Deniz’s dismissal on 15 September 2022,

to 20 February 2023, Mr Deniz was paid a net sum of $796 per week (based on a gross figure

of $935 per week). From 26 April 2023, the net figure that Mr Deniz was paid reduced to $760

per week (based on a gross sum of $880 per week).

[38] Consistent with this, Mr Deniz filed a WorkSafe Payment/Reimbursement document

dated 10 July 2023 which specifies that for the weekly period between 15 July and 21 July

2023, he was paid a net sum of $760 based on a gross figure of $880.22 I am therefore satisfied

that the spreadsheet produced by the respondent’s insurer accurately aligns with the remittance

statement produced by Mr Deniz.

[39] Having regard to this material, I find that Mr Deniz would have received $374 gross in

workers compensation payments for 16 September and 19 September 2022. This figure is

derived by dividing the weekly gross payment of $935 per week by 5, which yields a daily

figure of $187 gross. The daily figure of $187 gross has been multiplied by 2 (representing the

two days that preceded the 19 September 2022 certificate of capacity, being 16 September and

19 September 2022).

[40] I turn now to the period between 20 September 2022 (representing the first working day

following production of the 19 September 2022 certificate of capacity) to 10 November 2022

(representing the conclusion of the eight-week anticipated employment period). To determine

the remuneration that Mr Deniz would have received or been likely to receive during this period

upon his likely return to work in accordance with the certificate, I have had regard to Mr Deniz’s

casual patterns of engagement.

23 I consider that this provides an acceptable basis upon which

to assess the average hours of work performed by Mr Deniz prior to the workplace injury. This

document demonstrates that Mr Deniz performed an average of 34.01 hours per week. This is

less than the 40 hours per week for which the 19 September 2022 certificate of capacity cleared

Mr Deniz to work.

[41] While the 19 September 2022 certificate of capacity only covers the period to 9 October

2022, I proceed on the basis that Mr Deniz would likely have been capable of continuing to

work within the limitations identified in the 19 September 2022 certificate of capacity for the

entirety of the eight-week anticipated period of employment. There is no further medical

evidence before the Commission which overrides the position in this certificate of capacity. I

therefore find that Mr Deniz would have worked an average of 34.01 hours per week for the

period between 20 September and 10 November 2022. This is a period of approximately 7.3

weeks.

[42] The evidence before the Commission demonstrates that Mr Deniz was paid a gross

average weekly pay of $1,412.48 in return for working an average of 34.01 hours per week

prior to his workplace injury.24 In addition, Mr Deniz was paid meal allowances of between

$16.85 and $67.40 each pay period.25 Notwithstanding the respondent’s evidence to the

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contrary,26 the meal allowances have not been included in the respondent’s calculation of Mr

Deniz’s gross average weekly pay, and amount to an average of $30.64 per pay period.27

 

[43] Accordingly, for the 7.3 weeks between 20 September and 10 November 2022, I find

that Mr Deniz would have been paid $10,534.77 gross (($1,412.48 x 7.3) + ($30.64 x 7.3)).

[44] Accordingly, for the purposes of step 1 in Sprigg, the remuneration Mr Deniz would

have received, or have been likely to have received, if the respondent had not terminated the

employment is $10,908.77 gross. This is comprised of the gross sums of $374 calculated in

accordance with [39] above, and $10,534.77 calculated in accordance with [43] above. This is

the starting point.

Remuneration earned (s 392(2)(e)) and income reasonably likely to be earned (s 392(2)(f))

[45] Mr Deniz has been in receipt of workers compensation payments since his workplace

injury on 2 May 2022. Mr Deniz was paid 100% of his wages for the first 13 weeks after his

injury. Thereafter, Mr Deniz’s workers compensation payments reduced to 80% of his preinjury average weekly earnings.

[46] In the eight-week period I have estimated to represent Mr Deniz’s anticipated period of

employment (that is, the period between 16 September and 10 November 2022), Mr Deniz

received a workers compensation payment of $935 gross per week (being $796 net).

[47] Therefore, Mr Deniz’s earnings from workers compensation over the eight-week

anticipated period of employment for the purposes of s 392(2)(e) of the Act were $7,480 gross

($935 x 8 weeks).

[48] Monies earned after the end of the eight-week anticipated period of employment are not

deducted. This is because the calculation is intended to put Mr Deniz in the financial position

that he would have been in but for the unfair dismissal.28 It follows that there is no remuneration

likely to be earned that I need to take into account for the purpose of s 392(f) of the Act, noting

that the eight-week anticipated period of employment has now passed.

[49] I make no deductions for the payment of superannuation over this eight-week period.

Ms Makarov’s evidence is that Mr Deniz has continued to receive superannuation payments

from the respondent since his dismissal. This point is contested by Mr Deniz. The spreadsheet

prepared by the respondent’s insurer and referred to at [37] above demonstrates that Mr Deniz

received 11 superannuation contributions from the respondent during 2023 of an amount

between $92.40 and $96.80.

29 However, Mr Deniz relies upon an extract of two reports from

his superannuation fund in support of the contention that while Mr Deniz received

superannuation contributions between 13 April and 25 October 2022, he has not received any

since that time.30 In the circumstances, I consider it appropriate to exclude superannuation

payments from my calculations because the material before the Commission does not enable

me to reach a concluded view on the issue. In proceeding in this way, it is not suggested that

the respondent has not complied with its superannuation obligations with respect to Mr Deniz.

Any residual concerns held by Mr Deniz can be raised with his superannuation fund.

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[50] The respondent also contends that the Commission should make a deduction on the basis

that Mr Deniz has been in receipt of approximately $300 per week in Centrelink benefits. I

decline to do so. It is well established that while workers compensation payments are included

in the amount of remuneration earned, social security payments are not.31 Accordingly, I have

not taken into consideration the Centrelink benefits received by Mr Deniz or made any

deductions on this basis.

[51] Accordingly, for the purposes of step 2 in Sprigg, the remuneration earned by Mr Deniz

during the eight-week anticipated employment period is limited to the workers compensation

payments received by Mr Deniz for that period, being a sum of $7,480 gross. This amount is

deducted from the starting point of $10,908.77 gross and yields a figure of $3,428.77 gross

($10,908.77 – $7,480).

Any other matters (s 392(2)(g))

[52] I have considered whether any discount should be made for contingencies, consistent

with step 3 in Sprigg.

32 A discount for contingencies is a means of taking into account the

various probabilities that might otherwise affect earning capacity.33 However, in circumstances

where the eight-week anticipated period of employment has entirely passed, I do not consider

that in the circumstances of this case,34 a deduction should be made for contingencies. This is

because there is no relevant uncertainty that needs to be accounted for in that eight-week period.

[53] Further, with respect to step four in Sprigg, I have considered the impact of 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. There are no other matters that are relevant in

determining an amount of compensation apart from those to which I now turn.

Effect of the order on the viability of the respondent’s enterprise (s 392(2)(a))

[54] There was no evidence or submissions made that any particular amount of compensation

would affect the respondent’s viability.

Length of service (s 392(2)(b))

[55] The length of Mr Deniz’s casual employment with the respondent was seven months. I

do not consider this period to justify any increase or reduction to the amount of any

compensation ordered.

Mitigation efforts (s 392(2)(d))

[56] Mr Deniz must provide evidence that he has taken reasonable steps to minimise the

impact of the dismissal.35 What is reasonable depends on the circumstances of the case.36 The

respondent submits that Mr Deniz has on his own account, made no attempts to mitigate his

loss by seeking alternative employment. However, I consider it evident that Mr Deniz made a

reasonable effort to mitigate his loss by taking steps to establish a gardening business. I am

satisfied that no discount to the provisional compensation sum ought to be applied.

Misconduct (s 392(3))

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[57] Having regard to my findings as to the valid reason for Mr Deniz’s dismissal, I am

satisfied that Mr Deniz’s misconduct contributed to the respondent’s decision to dismiss him.37

Accordingly, I am obliged by s 392(3) of the Act to reduce the amount of compensation I would

otherwise order by an appropriate amount on account of the misconduct.

[58] In all the circumstances, I am satisfied that the appropriate amount by which to reduce

the amount of the order for compensation on account of misconduct is 20%.38

[59] Applying this reduction to the provisional compensation sum of $3,428.77 gross, the

gross amount of compensation to be ordered, subject to the matters discussed below, is

$2,743.02 gross ($,3428.77 – 20% ($685.75)).

Instalments (s 393)

[60] The respondent did not seek to pay any award of compensation by instalments. No order

will be made to that effect.

Shock, distress (s 392(4))

[61] The amount of compensation calculated does not include a component for shock,

humiliation or distress.

Compensation cap (s 392(5))

[62] The amount $2,743.02 gross is less than the compensation cap in s 392(5) of the Act in

relation to Mr Deniz.

Conclusion

[63] 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.39

[64] I am satisfied that the above analysis takes into account the matters set out in s 392(2)

of the Act, and the compensation that I have determined is, appropriately, neither excessive nor

inadequate having regard to all the circumstances of the application.

[65] I consider it appropriate to make an order that the respondent pay Mr Deniz the sum of

$2,743.02 gross less taxation as required by law, within seven days of this decision.

Disposition

[66] An order for the payment of compensation by the respondent to Mr Deniz $2,743.02

gross, less taxation as required by law, will be issued with this decision.”

 

Deniz v Alvaro Transport Pty Ltd [2023] FWC 1875 delivered 28 July 2023 per Millhouse DP