Unfair dismissal and mitigation of loss


This passage from an unfair dismissal case in the Fair Work Commission sets out a practical analysis of the doctrine of mitigation of damage.

“The efforts of Mr Raza to mitigate the loss suffered by him because of the dismissal

[83] I am satisfied that Mr Raza made reasonable efforts to obtain employment after the

dismissal. He did provide evidence of the job applications and other endeavours he made to

secure other work. Indeed, this included seeking work outside of Mt Gambier and undertaking

work in both Melbourne and Adelaide.

[84] I have considered the fact that Mr Raza declined what appears to have been an offer that

may have been akin to reinstatement made by FCS some 2 weeks after the dismissal. In most

cases, this would represent a significant barrier to a finding that an applicant has sought to

mitigate their losses. The fact that he may have been humiliated by the dismissal would not, by

itself, provide a proper basis to justify rejection of the proposal. However, the details of the

proposal are not before the Commission, and accordingly, it is difficult to place weight upon it.

Further, whatever the proposal was, it was also accompanied by the notion that he was not

engaged by FCS but rather a labour hire company who had no involvement with Mr Raza at

any time other than their name appeared on the bank statements as making payments to him for

a period.

37 This threw into considerable doubt the whole basis of any potential “reinstatement”

or re-engagement, and in the rather unique context of these events it was not unreasonable for

Mr Raza to reject the notion at that point.”


Kanapaddala Gamage and another v First Call Staffing Pty Ltd T/A First Call Services [2023] FWC 1759 delivered 3 August 2023 per Hampton DP