When assessing compensation for unfair dismissal, the Fair Work Commission must factor in the matters which are dealt with in sec 392 of the Fair Work Act 2009. It also does so by following principles expounded in the leading case of Bowden v Ottrey Homes Cobram and District Retirement Villages Inc (2013) FWCFB 4314. One of the matters is the effect an order for compensation will have on the viability of the employer’s business or enterprise. Here is a passage from Commission a case which explains how the principle is applied.
I accept the submissions of Superstop that an order requiring it to pay Ting compensation will adversely affect the viability of its business, because of the precarious financial position it was in at the time of Ting’s dismissal and which remains. It does not follow, however, that no compensation should be ordered. Rather, it is a factor that weighs in favour of a reduction in the amount of compensation. In the circumstances, I consider a reduction of 30% is appropriate, to a total of $14,924.00 gross.”
Ting v Superstop Auto Parts (2019) FWC 1651 13 March 2019 per McKinnon C