This is a fascinating decision of the Fair Work Commission in an unfair dismissal case which held that the circumstances of the termination of employment of an employee under the terms of an employment contract which provided that the employee “would retire when he attained the age of 65 years”’ was an unfair dismissal when the employer treated the employee’s employment as having come to an end when the employee attained that age.
“Application for an unfair dismissal remedy – jurisdictional objection – whether applicant dismissed – applicant found to be dismissed– dismissal harsh, unjust and unreasonable – compensation ordered.
Introduction and outcome
[1]
On 19 August 2025, Mr Shicong Sun made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with the Consulate General of India, Sydney (Consulate).
[2]
The Consulate is a consulate mission of India. The Consulate comprises 30 employees, including diplomatic staff and other employees, based in a single workplace in Sydney.
[3]
Mr Sun was employed by the Consulate as a Chauffeur-cum-Messenger under an employment contract dated 10 April 2015 which provided that Mr Sun would retire when he attained the age of 65 years.
[4]
The Consulate raised a jurisdictional objection that Mr Sun was not dismissed within the meaning of s.386 of the FW Act. The Consulate asserted that Mr Sun was employed under a contract of employment for a specified period of time and that the employment was terminated at the end of this period. In the alternative, the Consulate submitted that if the Commission finds that Mr Sun was dismissed, that the dismissal was not harsh, unjust or unreasonable.
[5]
In summary, I have found that Mr Sun was dismissed by the Consulate, and that the dismissal was harsh, unjust and unreasonable for reasons which include that there was no valid reason for the dismissal, that Mr Sun had a long period of good service with the Consulate and that Mr Sun will have difficulty obtaining alternative employment because of his age, English language skills and lack of qualifications. I have determined that it is appropriate to make an order for compensation.
The hearing
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DECISION
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[6]
The application was listed for hearing on 23 April 2026.
[7]
Mr Sun was represented by Mr Bailey Ryan, Legal Officer of the Transport Workers’ Union of Australia (TWU). Mr Sun was also assisted by a Mandarin speaking interpreter. The Consulate was represented by Mr David Lloyd of Counsel who I granted permission to appear pursuant to s.596(2) of the FW Act as I was satisfied that it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.
[8]
Mr Sun gave evidence on his own behalf and was cross-examined by Mr Lloyd.
[9]
Mr Niravkumar B. Sutariya, Consul (Commercial, Consular, Culture, Community Welfare) and Head of Chancery at the Consulate, gave evidence on behalf of the Consulate. Mr Sutariya was cross-examined by Mr Ryan.
[10]
I have considered the written and oral submissions made by the parties and all of the evidence before me in my determination of this matter and the conclusions I have reached.
Factual background
[11]
Mr Sun was born on 18 July 1960. Mr Sun is currently 65 years of age.1
[12]
Mr Sun migrated from China to Australia in 1988. English is Mr Sun’s second language and Mr Sun has no Australian tertiary education or vocational trades skills.2
[13]
Mr Sun has worked in the transport industry for 24 years.3
[14]
Prior to 2015, Mr Sun was employed by the Consulate to perform the role of Chauffeur-cum-Messenger during a few different periods of engagement as he switched between jobs and running a business with his family. Mr Sun said that he worked for the Consulate between 1995-1996 and 2009-2010.4
The Labour Contract dated 10 April 2015
[15]
On 10 April 2015, Mr Sun was employed by the Consulate in the role of Chauffeur-cum-Messenger. The terms and conditions of Mr Sun’s employment were set out in an employment agreement (the Labour Contract) of the same date. Relevantly, clause 9 of the Labour Contract provided:
Mr. Sun will retire from service on superannuation on his attaining the age of 65 years.
[16]
The Labour Contract was a prescribed document prepared by the Ministry of External Affairs, Government of India (the Ministry).
[17]
As Chauffeur-cum-Messenger, Mr Sun’s duties included driving passengers in C Class vehicles, running errands, delivery and handling of post, paperwork and correspondence on behalf of the Consulate.5 Mr Sun performed this role on a full-time basis, mainly between Monday to Friday.6
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Discussions regarding Mr Sun’s employment
[18]
There were no issues with Mr Sun’s performance or conduct throughout the course of his employment from 10 April 2015 to 31 July 2025.7
[19]
Mr Niravkumar B. Sutariya is a diplomat employed by the Ministry. Mr Sutariya currently holds the position of Consul (Commercial, Consular, Culture, Community Welfare) and Head of Chancery at the Consulate. In his role, Mr Sutariya is responsible for administrative matters of the Consulate. Mr Sutariya reports to designated senior officers of the Ministry in Delhi, India and the Consulate in Sydney, Australia. Mr Sutariya is required to seek approval from the Ministry for important matters, including matters relating to the Consulate’s staff.8 The Consulate comprises 30 employees, including diplomatic staff, and other employees, who are based at a single workplace in Castlereagh Street, Sydney.9
[20]
Mr Sun and Mr Sutariya had discussions regarding Mr Sun’s employment between March and July 2025. The parties’ evidence about these discussions differed as follows.
Evidence of Mr Sun
[21]
In March 2025, when Mr Sun was 64 years of age, he reviewed his employment contract and realised that the terms stipulated that his employment would end when he reached 65 years of age. Mr Sun had no intention of retiring in the foreseeable future as he had no health or capacity issues.10
[22]
Mr Sun approached Mr Sutariya to have a conversation. Mr Sun advised Mr Sutariya that he did not wish to retire as he was fit to work and would be put into financial detriment if he lost his job at age 65. Mr Sutariya told Mr Sun that all decisions must be authorised by the Ministry in New Delhi, and that Mr Sutariya would assist him in contacting the Ministry to amend the terms of his contract regarding termination.11
[23]
Mr Sun then followed up with Mr Sutariya on multiple occasions. Later in March 2025, Mr Sutariya advised Mr Sun that despite contacting the Ministry a number of times, the Ministry did not respond.12
[24]
In the first week of July 2025, Mr Sutariya directed Mr Sun to meet him in Mr Sutariya’s office. At this meeting, Mr Sun was advised that his employment would be terminated effective at the end of July, upon reaching 65 years of age. Mr Sun advised that he did not want to be terminated and that he could continue to work in circumstances where no concerns had been raised regarding his capacity or performance. Mr Sutariya apologised to Mr Sun and said that nothing could be done in circumstances where the Consulate must terminate his employment due to Mr Sun’s age alone. Mr Sun asked Mr Sutariya whether he would receive any payment for his termination and accrued annual and long service leave entitlements. Mr Sun was advised that he would not receive any form of payment including leave payments and that he should take his annual leave until the end of July. Mr Sun requested written confirmation of termination and was advised that it would not be provided.13
Evidence of Mr Sutariya
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[25]
In March 2025, Mr Sun met with Mr Sutariya informally. During this conversation, Mr Sun casually told Mr Sutariya that Mr Sun’s employment was coming to an end on 31 July 2025, but he would like to work longer. Mr Sutariya advised Mr Sun that he did not have the power to extend his employment and that Mr Sun would have to make a written request for Mr Sutariya to seek the Ministry’s approval.14
[26]
Mr Sutariya did not recall discussing Mr Sun’s employment with him after this, and he never received a written request from Mr Sun.15
[27]
In the first week of July 2025, Mr Sutariya met with Mr Sun. Mr Sutariya denied apologising to Mr Sun as he said there was no reason for him to do so. Mr Sun did not ask for any form of termination payment at the meeting. Mr Sutariya denied Mr Sun’s request for a termination letter on the basis that the Consulate did not have a policy to provide a termination letter, Mr Sun’s employment came to an end due to the completion of his employment contract, and Mr Sun’s employment was a fixed term contract, which Mr Sun was aware of.16
The termination of Mr Sun’s employment
[28]
Between sometime in the first week of July 2025 until 31 July 2025, Mr Sun was on annual leave.
[29]
On 18 July 2025, Mr Sun reached 65 years of age.
[30]
On 31 July 2025, Mr Sun’s employment ended.
After the termination
[31]
On 26 August 2025, Mr Sun saw that the Consulate had advertised an opening for a full time Chauffeur-cum-Messenger.17
[32]
The Consulate delayed providing a final payslip to Mr Sun until January 2026. At the time that Mr Sun ceased employment, the Consulate owed Mr Sun approximately $28,500 in respect of untaken long service leave and annual leave. The Consulate delayed paying this amount to Mr Sun for a period of approximately nine months. At the time of the hearing, there was still approximately $3,500 annual leave owing to Mr Sun which Consulate had not yet paid.18
Impact of the termination on Mr Sun
[33]
Mr Sun said that the termination has had a serious impact on his financial circumstances. Mr Sun said that he and his wife are responsible for the mortgage on their home which they have not finished paying off. Prior to the termination, Mr Sun’s employment was the main source of income for his family as although his wife works full time, her role in food processing only pays around minimum wage. Mr Sun estimates his monthly outgoing expenses (mortgage, car, and day-to-day living expenses) to be in the vicinity of $6,000 per month.19
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[34]
Mr Sun is not currently working or receiving any income support and said that he anticipates that it will be difficult for him to obtain suitable alternative work due to his age. Mr Sun said that he is still two years short of reaching the age to qualify for the age pension.
[35]
Since the termination of Mr Sun’s employment, Mr Sun has applied for one sanitation role at a cleaning company. During the interview, Mr Sun said that the interviewer told him that there was no job suitable for him at his age.20
[36]
Mr Sun said that the termination has also been a traumatic experience for him. Mr Sun said that he has been employed for most of his life after completing high school, mostly in long-term roles. Mr Sun said that he misses the social aspects of being at work, including the camaraderie and friendship.21
Reasons for compulsory retirement
[37]
Mr Sutariya explained that the Labour Contract which applied to Mr Sun reflected the Indian Government’s employment laws applicable to all consular and overseas mission employees employed in about 200 offices in 160 countries around the world and the relevant Australian law including the Commonwealth and State of NSW law and regulations.22
[38]
Mr Sutariya explained that the maximum term of Mr Sun’s employment was calculated with reference to Mr Sun turning 65 years of age on 18 July 2025. Mr Sutariya explained that the term of Mr Sun’s employment was scheduled to end on 31 July 2025 in accordance with the Indian government’s employment laws applicable to all employees employed by the Indian Government directly or through its consular offices around the world such as the Consulate.
[39]
Mr Sutariya explained that the Indian Government’s employment laws require that a person employed as a Chauffeur-cum-Messenger (referred to as the Position in Mr Sutariya’s witness statement) end on the last day of the month during which they attain 65 years of age based on a number of factors which Mr Sutariya described in his witness statement as follows:
•
potential health events: it is an inherent and integral requirement of the Position that the person working in that Position be healthy. Based on statistics, the risk of sudden health events such as heart attack or stroke that may incapacitate a person, increases significantly in their 60s;
•
mental/cognitive capabilities: it is an inherent and integral requirement of the Position that the person working in that Position be mentally agile and have high functioning cognitive abilities. Based on statistics, the cognitive functions (such as reflex response time while driving at medium to high speeds) and situational awareness (such as, a terrorist or other attack on the occupants of the vehicle driven or a dangerous traffic situation) significantly decline with age especially in people over 60;
•
fatigue: it is an inherent and integral requirement of the Position that the person working in that Position be able to work irregular schedules. The physical exertion of working irregular or long hours can be much more strenuous on older people leading to fatigue and causing risk to themselves as well as the persons that they are required to drive;
•
physical capacity: it is an inherent requirement of the Position that the persons employed in the Position are at higher level of physical capacity to deal with a variety of situation while discharging their duties;
•
standard processes: the age of 65 years is used to calculate the maximum term of employment to have a uniform, standardised basis to avoid discrimination and case by case assessment noting
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the large number of people employed in similar positions by the Ministry and Indian consular and mission services in about 200 offices in 160 countries across the world.23
[40]
Mr Sutariya said that the Consulate respects Australian employment law as applicable to the employment of the Consulate’s staff in Australia and that wherever the Indian Government employment policies or law favours an employee, the employees receive those additional benefits. Mr Sutariya said that additional leave entitlements and additional annual discretionary payments were examples of these benefits.24
[41]
Mr Sutariya explained that from the relevant Australian law perspective, Mr Sun’s employment ended pursuant to the fixed term nature of Mr Sun’s employment with the Consulate. Mr Sutariya said that as the Indian Government laws provide for persons employed in the Position to retire on the last day of the month in which they attain 65 years of age, the Consulate has been employing people on a fixed term basis to the effect that the end date of their employment is the last day of the month in which they complete 65 years of age.25
When can the Commission order a remedy for unfair dismissal?
[42]
Section 390 of the FW Act provides that the Commission may order a remedy if:
(a)
the Commission is satisfied that the person was protected from unfair dismissal at the time of being dismissed; and
(b)
the person has been unfairly dismissed.
[43]
Both limbs must be satisfied. I am therefore required to consider whether Mr Sun was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that Mr Sun was so protected, whether Mr Sun has been unfairly dismissed.
When has a person been unfairly dismissed?
[44]
Section 385 of the FW Act provides that a person has been unfairly dismissed if the Commission is satisfied that:
(a)
the person has been dismissed; and
(b)
the dismissal was harsh, unjust or unreasonable; and
(c)
the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d)
the dismissal was not a case of genuine redundancy.
Initial matters
Was Mr Sun dismissed?
[45]
A threshold issue to determine is whether Mr Sun has been dismissed from his employment.
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[46]
Section 386 of the FW Act provides: 386 Meaning of dismissed (1) A person has been dismissed if: (a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or (b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer. (2) However, a person has not been dismissed if: (a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or (b) the person was an employee: (i) to whom a training arrangement applied; and (ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement; and the employment has terminated at the end of the training arrangement; or (c) the person was demoted in employment but: (i) the demotion does not involve a significant reduction in his or her remuneration or duties; and (ii) he or she remains employed with the employer that effected the demotion. (3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.
[47]
Mr Sun contends that he was dismissed by the Consulate within the meaning of s.386(1)(a) as his employment was terminated on the Consulate’s initiative because he reached 65 years of age.
[48]
The Consulate contends that Mr Sun was not dismissed as he was employed under a contract of employment for a specified period of time and the employment was terminated at the end of this period within the meaning of s.386(2)(a).
Consideration – was Mr Sun employed under a contract of employment for a specified period of time?
[49]
The TWU on behalf of Mr Sun, sought to conflate the issues of whether Mr Sun was employed under a contract of employment for a specified period of time and whether Mr Sun’s employment could be terminated because of his age. The TWU’s submissions in this regard did not engage with the requirement that the Commission must determine whether it has jurisdiction to hear the matter by first deciding whether the person was dismissed, before considering the merits of the application.
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[50]
There have been numerous cases where Courts and tribunals have been asked to consider the fairness and/or lawfulness of termination due to compulsory retirement. The cases of ALHMWU v Commonwealth of Australia,26 Griffin v Australian Postal Corporation (Griffin)27 and Peacock v Commonwealth of Australia (Peacock),28 all dealt with unlawful termination applications of Federal public sector employees who were compulsorily retired at the age of 65 by the operation of Federal laws or instruments. In each case, the relevant Court dismissed the application on the basis of findings that there was no termination at the initiative of the employer and that the employment was terminated by operation of the relevant laws or instrument which applied to the employment. These cases were all determined prior to the introduction of the Public Service Act 1999 which abolished compulsory age based retirement and there was no suggestion that the relevant laws or instrument which mandated age based retirement were unlawful at the time they were made.
[51]
More recently, in Andrew Peggie and Geoffrey King v Qantas Airways Limited29 the Commission determined unfair dismissal applications by Qantas pilots who were dismissed by Qantas when they turned 65 because they were unable to perform the inherent requirements of the pilot role. In this case, there was no dispute between the parties that the applicants’ employment with their employer was terminated on the employer’s initiative. However, in this case, there is such a dispute. As such I cannot proceed to consider the reasons for the alleged termination unless I am satisfied that a dismissal has occurred.
[52]
The Consulate submitted that no dismissal has occurred because Mr Sun agreed when entering into the Labour Contract on 10 April 2015 that his employment would end on his 65th birthday. There is no evidence before me about the circumstances in which the Labour Contract was entered into by the parties. It is unclear whether Mr Sutariya was working for the Consulate at the time that Mr Sun commenced employment or whether he had any role in negotiating the terms of the Labour Contract.
[53]
However, Mr Sutariya’s evidence about the reason that the Labour Contract ended on Mr Sun’s 65th birthday was telling. It was expressed in the following terms in Mr Sutariya’s witness statement:
As the Indian Government laws provide for persons employed in the [Chauffeur-cum-Messenger] Position to retire on the last day of the month in which they attain 65 years of age, the Consulate has been employing people on a fixed term basis to the effect that the end date of their employment is the last day of the month in which they complete 65 years of age.
[54]
I find, based on this evidence, that Mr Sun was required to agree to retire at the age of 65 years as a condition of being offered employment by the Consulate and that the Consulate had no discretion to employ Mr Sun if he had not so agreed.
[55]
There was no evidence before the Commission about the reasons for a compulsory retirement age in India. In any event, a requirement by an Australian employer that a prospective employee agree to a compulsory retirement clause as a condition of employment is likely to offend s.18(1)(c) of the Age Discrimination Act 2004 (AD Act). Section 18(1) provides:
Discrimination in employment
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(1)
It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against a person on the ground of the other person’s age:
(a)
in the arrangements made for the purpose of determining who should be offered employment; or
(b)
in determining who should be offered employment; or
(c) in the terms or conditions on which employment is offered.
[56]
I accept the Consulate’s position that it is clear from the wording of clause 9 that the Labour Contract is for ‘a specified period of time’ as it terminates at the end of an identifiable period, being when Mr Sun attains the age of 65 years. The question is what effect the discriminatory nature of the term has on s.386(2)(a). In determining this issue, I have had regard to a decision of the Industrial Relations Commission of NSW (NSW Commission) involving the same employer, Thomas and Consulate General of India (Thomas).30 The parties referred me to this and a related decision which was cited in the recent Full Bench decision of the Commission in Saudi Arabian Cultural Mission/Saudi Embassy v Saleh (Saleh).31 Saleh concerned whether a sovereign foreign State and its diplomatic mission is immune from unfair dismissal proceedings under Part 3-2 of the by virtue of the Foreign States Immunities Act 1985 (Cth) and found that it was not so immune. The first decision in Thomas also considered this issue and determined it in favour of the applicant.32 The second decision in Thomas considered the merits of the applicant’s unfair dismissal application.33 The applicant in that matter was employed by the Consulate as a clerk/typist from 1982 until her dismissal on 12 August 2000. The decision described the background facts as follows:
The applicant deposed that at a party to farewell another employee in January 1999, the Consul General had announced that the next farewell would be the applicant’s, as she would be retiring at the age of 65 years. The applicant said she was shocked by this announcement and approached the Consul later that evening and told him she had no plans to retire. He had said that 65 years was the age India uses for retirement.
Two months later, the Consul approached the applicant and invited her to take leave before her proposed retirement in August. However in July, a month before her 65th birthday, the Consul invited her to seek an extension of her employment from the Indian Ministry for Foreign Affairs. She decided to do so.
In her letter to the Indian authorities, the applicant cited the abolition of forced age based retirement in New South Wales and provided medical certification confirming her total fitness for work. Her request was granted and she continued her employment for a further twelve months.
In April of the next year (2000) the applicant sought a further extension of employment – again providing medical certification of her fitness to do so. This time her request was denied. She was informed on 5 June that her employment would be terminated on 12 August 2000.34
[57]
At the hearing, there was no dispute between the parties that the dismissal of the applicant was because of her age35 and the Consulate, through its legal representative, conceded that the dismissal could be described as either harsh, unreasonable or unjust.36 In finding that the dismissal was harsh, unreasonable and unjust and awarding the applicant six months compensation, the NSW Commission made a number of findings which appear to be applicable to Mr Sun including:
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•
The applicant had an unblemished record of employment.
•
There is no issue, medical or otherwise, pertaining to the applicant’s performance in her job, which in any way reflected on her capacity to have been able to continue to be employed.
•
The only reason the applicant’s employment was terminated was she had reached the retirement age for employees in India.
•
The dismissal of the applicant because of her age can appropriately be characterised as “cruel,” “unfeeling,” and “not based on reason or good sense.”
•
The dismissal of the applicant had detrimental personal and economic consequences for her.
•
The dismissal of the applicant for the irrelevant reason of her age was an infringement of her human rights.
•
The applicant’s dismissal based solely on reaching retirement age, is one which can comfortably be characterised as being ‘harsh, unreasonable and unjust’.37
[58]
It is clear from the factual background in Thomas that the applicant in that matter was not covered by a contract of employment which provided that she would retire at the age of 65 and that a dismissal in fact occurred. Given the NSW Commission’s strong condemnation of the Consulate’s actions for dismissing the applicant on the ground of her age, it would have been reasonable to expect the Indian Government to revisit its compulsory retirement requirement for employees in Australia and other jurisdictions where such requirements were unlawful. The Labour Contract indicates that the requirements were not revisited but instead dressed up as a fixed term contract which the Consulate now relies upon to defeat Mr Sun’s application. So much is apparent from the following extracts of Mr Sutariya’s witness statement:
The maximum term of the Applicant’s employment was calculated with reference to the Applicant completing the age of 65 years on 18 July 2025. Accordingly, the term of his employment was scheduled to end on 31 July 2025 in accordance with the Indian government’s employment laws applicable to all employees employed by the Indian Government directly or through its consular offices around the world such as the Consulate.
From the relevant Australian law perspective, the Applicant’s employment ended pursuant to the fixed term nature of the Applicant’s employment with the Consulate which was permissible at the time.38
[59]
It is reasonable for me to infer from Mr Sutariya’s evidence that the main purpose of clause 9 of the Labour Contract was to avoid Mr Sun being able to challenge the cessation of his employment by making an unfair dismissal application. This gives rise to whether s.386(3) applies. In Khayam v Navitas English Pty Ltd T/A Navitas English (Khayam),39 a Full Bench considering the issue of permission to appeal from a Commissioner’s decision described s.386(3) in the following way:
Section 386(3) is clearly an anti-avoidance provision. Read in the context of s.386 as a whole, it appears to us that it is intended to target an employer’s avoidance of the operation of the Part, rather than obligations that are notionally imposed on employers under it. That is, the intention appears to be that s.386(3) applies if ‘a substantial purpose’ of an employer in using contracts for a specified period is to avoid the operation of the unfair dismissal provisions.40
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[60]
In a subsequent decision following permission to appeal being granted, a differently constituted Full Bench hearing the appeal41 considered that the purpose of s.386(2)(a) was to exclude from the Commission’s jurisdiction categories of termination of employment which were otherwise capable of being comprehended by the general definition in s.386(1).42 It also said:
…it would further follow that s 386(3) would also be rendered otiose if a termination of the employment of a person employed under a contract for a specified period at the end of that period, as well as the other two categories of termination encompassed by the exclusion in s 386(2)(a), were incapable of constituting a termination of employment at the initiative of the employer within the primary definition on s 386(1)(a). Section 386(3) operates to negate the exclusion in s 386(2)(a) if the specified conditions are met, but does not affect the operation of s 386(1). It can be inferred that s 386(3), which is in the nature of an anti-avoidance provision, was intended to have practical effect by the legislature and was intended to ameliorate the force of the exclusion in s 386(2)(a) by rendering at least some terminations of employment encompassed by s 386(2)(a) to be dismissals for the purpose of Pt 3-2.43
[61]
The Full Bench then went on to make a number of observations about the correct interpretation and application of s.386(1)(a). Those which are relevant to the current proceedings are (citations omitted):
…
(2)
As stated in Mohazab, the expression “termination at the initiative of the employer” is a reference to a termination that is brought about by an employer and which is not agreed to by the employee. In circumstances where the employment relationship is not left voluntarily by the employee, the focus of the inquiry is whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment.
(3)
In Mahony v White the Full Court stated that a termination of employment may be done at the initiative of the employer even though it was not done by the employer. In circumstances where the parties to a time-limited contract have agreed that their contract will expire on a specified date but have not agreed on the termination of their employment relationship, it may be the case that the termination of employment is effected by the expiry of the contract, but that does not exclude the possibility that the termination of employment relationship occurred at the initiative of the employer – that is, as a result of some decision or act on the part of the employer that brought about that outcome.
(4)
Where the terms of an operative time-limited contract reflect a genuine agreement on the part of the employer and employee that the employment relationship will not continue after a specified date and the employment relationship comes to an end on the specified date, then, absent a vitiating or other factor of the type to which we refer in (5) below, the employment relationship will have been terminated by reason of the agreement between the parties and there will be no termination at the initiative of the employer….
(5)
In some cases it will be necessary to go further than just examining the terms of any contract in which the parties have ostensibly agreed to terminate the employment relationship at a particular time. It is not necessary or appropriate that we attempt to identify exhaustively all relevant matters, but the authorities to which we have earlier referred indicate that the following are likely to be relevant and may in some cases be determinative:
(a)
….
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(b)
The time-limited employment contract may be illegal or contrary to public policy (for example, it contains relevantly objectionable terms as defined in s 12 of the FW Act or has the purpose of frustrating the policy or operation of the FW Act or preventing access to the Commission’s unfair dismissal jurisdiction)….44
[62]
More recently, the Full Court of the Federal Court in Alouani-Roby v National Rugby League Ltd (Alouani-Roby) 45 said:
The statutory purpose underpinning s 386(2)(a) of the FW Act is to exclude from protection for unfair dismissal those whose employment terminates by agreement—rather than by or in response to some unilateral act of an employer—upon the completion of an agreed (and specified) period, task or season. As the learned primary judge noted, exclusion in that sense accords with a reality of the common law, namely that “[a]s a matter of ordinary language, an employer does not terminate an employee’s employment when his or her term of employment expires”: Victoria v The Commonwealth (1996) 187 CLR 416, 520 (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ).46
[63]
In my view, the Full Federal Court’s decision in Alouani-Roby does not disturb the observations by the Full Bench in Khayam about the correct interpretation and application of s.386(1)(a) extracted above and is consistent with in paragraph (4) of those observations.
[64]
Applying the observations of the Full Bench in Khayam, to the facts before me, I find that there was no genuine agreement between Mr Sun and the Consulate in relation to Mr Sun’s employment ending when he turned 65 as this was a condition of the employment which the Consulate had no discretion to waive. In other words, if Mr Sun had not agreed to the term requiring his retirement at 65, he would not have been offered employment by the Consulate. If I am wrong about this and there was genuine agreement, this agreement was vitiated by the fact that clause 9 would be regarded as an objectionable term if it was contained in an enterprise agreement, and has the purpose of frustrating the policy or operation of the FW Act and preventing access to the Commission’s unfair dismissal jurisdiction.
[65]
In this regard, the definition of objectionable term at s.12 of the FW Act includes a term of an enterprise agreement that permits a contravention of Part 3-1 (which deals with general protections). Part 3-1 includes s.351 which prohibits an employer from taking adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer’s responsibilities, subjection to family and domestic violence, pregnancy, religion, political opinion, national extraction or social origin.
[66]
Section 578 of the FW Act requires me to, in performing functions or exercising powers, in relation to a matter, to take into account the objects of FW Act; equity, good conscience and the merits of the matter; and the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of numerous attributes including age. The objects of the Act include at s.3(e) enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented, protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms.
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[67]
Although, strictly speaking, clause 9 of the Labour Contract is not an objectionable term as defined because it is not a term of an enterprise agreement, it is likely to offend s.18(1)(c) of the AD Act as already stated in this decision. Section 18(1)(c) of the AD Act applied at the time that Mr Sun and the Consulate entered into the Labour Agreement. It is difficult to see how I could permit such a term to defeat Mr Sun’s application given it would result in the frustration of the performance of my functions and the exercise of my powers as these pertain to helping to prevent and eliminate discrimination on the basis of age and protecting against unfair treatment and discrimination.
[68]
For these reasons, I am satisfied that although Mr Sun was employed under a contract of employment for a specified period of time, s.386(2)(a) does not apply to Mr Sun as clause 9 of the Labour Contract is inconsistent with the AD Act and a substantial purpose of this type of employment arrangement was to avoid the operation of the unfair dismissal provisions of the FW Act. It follows that I am required to determine whether there was a dismissal under s.386(1)(a) of the FW Act.
Consideration – did the employment terminate at the end of the specified period?
[69]
If I am wrong about s.386(2)(a) not applying to Mr Sun because of s.386(3), there is an additional reason why I believe that s.386(2)(a) has no application to Mr Sun. In the case of a person was employed under a contract of employment for a specified period of time, s.386(2)(a) applies when the employment has terminated at the end of the period.
[70]
The Labour Contract provided that Mr Sun would retire from service on superannuation on his attaining the age of 65 years. It is common ground between the parties that Mr Sun turned 65 on 18 July 2025. Therefore ‘the end of the period’ for the purpose of s.386(2)(a) was 18 July 2025. However, the employment did not end on that date but approximately two weeks later on 31 July 2025. Mr Sun was on leave at that time but there is no dispute between the parties that the employment relationship continued until 31 July 2025.
[71]
The Consulate explained the discrepancy between the Labour Contract providing an end date of 18 July 2025 and Mr Sun’s employment ceasing on 31 July 2025 by reference to the payroll cycle in the clause 4 of the Labour Contract. Clause 4 provided that Mr Sun would receive a monthly salary payable on the last working day of the month. The Consulate submitted that the effect of the Labour Contract is that retirement occurs in the month that an employee turns 65 and that the termination date is aligned with the payroll cycle. Mr Sutariya went as far as stating in his witness statement that Mr Sun’s employment was of a fixed term nature ending on 31 July 2025.47 However there is no reference in the Labour Contract to it ending on 31 July 2025. Based upon the natural and ordinary meaning of the words in the Labour Contract read as a whole and in context, I find that the termination date specified in the Labour Contract was the date which Mr Sun turned 65 which was 18 July 2025. I find that s.386(2)(a) does not apply to Mr Sun because the employment did not terminate on 18 June 2025.
Consideration – was there was a dismissal under s.386(1)(a) of the FW Act?
[72]
I am comfortably satisfied that Mr Sun’s employment was terminated on the Consulate’s initiative.
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[73]
All of the evidence establishes that the requirement that Mr Sun retire at 65 was initiated by the Consulate. There is no dispute between the parties that Mr Sun and Mr Sutariya had a conversation in March 2025 about Mr Sun’s wish to continue employment with the Consulate. Mr Sutariya said he told Mr Sun that Mr Sun would need to make a request in writing for Mr Sutariya to seek the Ministry’s approval for an extension of his employment. Mr Sutariya said that Mr Sun did not make such a request. Mr Sun disagreed with Mr Sutariya’s version of this conversation and said that Mr Sutariya told Mr Sun that he had contacted the Ministry about his request but that the Ministry did not respond to Mr Sutariya.
[74]
Ultimately, I prefer the evidence of Mr Sun. Mr Sun presented as a genuine and compelling witness. He gave evidence that his living expenses were around $6,000 per month including mortgage payments and that his wife was earning close to the minimum wage. I accept that Mr Sun’s financial commitments were such that he needed to keep working to meet these commitments. Given that Mr Sun felt strongly about needing to remain employed after he turned 65, it appears to be highly unlikely that he would not have pursued his request for an extension after making an initial request to Mr Sutariya in March 2025. In my view, once Mr Sutariya was aware that Mr Sun wanted to remain employed, it was incumbent upon Mr Sutariya as the most senior representative of Mr Sun’s employer in the Sydney workplace to make inquiries to the Ministry about extending Mr Sun’s employment. It is not credible that Mr Sutariya did not act on this request simply because Mr Sun did not put the request in writing.
[75]
Based on the evidence before me, I find that Mr Sutariya made a request on behalf of Mr Sun to the Ministry that Mr Sun remain employed by the Consulate and that the Consulate did not respond to this request. I find that the failure of Consulate to extend Mr Sun’s employment in response to his request was the principal contributing factor which resulted, directly or consequentially, in the termination of Mr Sun’s employment. I therefore find that Mr Sun was dismissed within the meaning of .386(1)(a) of the FW Act. Other matters
[76]
Under s.396 of the FW Act, the Commission is obliged to decide the following matters before considering the merits of the application:
(a)
whether the application was made within the period required in subsection 394(2);
(b)
whether the person was protected from unfair dismissal;
(c)
whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d)
whether the dismissal was a case of genuine redundancy.
[77]
Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
(a)
the person is an employee who has completed a period of employment with his or his employer of at least the minimum employment period; and
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(b)
one or more of the following apply:
(i)
a modern award covers the person;
(ii)
an enterprise agreement applies to the person in relation to the employment;
(iii)
the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
[78]
There is no dispute about these matters and I am satisfied that:
•
the application was made within the period required in s.394(2);
•
at the time of dismissal, Mr Sun was a person protected from unfair dismissal because:
o
Mr Sun was an employee who completed a period of employment with the Consulate of at least the minimum employment period;
o
Mr Sun earned less than the high-income threshold.
•
the Small Business Fair Dismissal Code does not apply; and
•
Mr Sun’s dismissal was not a case of genuine redundancy.
[79]
Having considered each of the initial matters, I am required to consider the merits of the application.
Was the dismissal harsh, unjust or unreasonable?
[80]
Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:
(a)
whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b)
whether the person was notified of that reason; and
(c)
whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d)
any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e)
if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f)
the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
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(g)
the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h)
any other matters that the FWC considers relevant.
[81]
I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.48 I find that there was no valid reason for the dismissal related to Mr Sun’s capacity or conduct. In relation to Mr Sun’s conduct, it is common ground between the parties that no conduct or performance issues arose during Mr Sun’s employment. In relation to Mr Sun’s capacity, there is no evidence which established that Mr Sun had any medical or fitness issues which would have prevented him from doing the work if he remained employed by the Consulate. As such, the matters in s.387(b)-(e) do not apply to my consideration of the matter.
[82]
Although the Consulate accepted that s.387(c) of the FW Act does not apply, it submitted that Mr Sun could have sought to negotiate any variations to the terms of the Labour Contract at the time he was employed, or subsequently. The Consulate also submitted that Mr Sun failed to make any formal request in writing to seek an extension of the term and that the Consulate should not be criticised for simply complying with an agreement that was lawfully entered into and complied with by the parties until the end of the term of that agreement.
[83]
I have already found in my consideration of whether Mr Sun was dismissed that Mr Sun was required to agree to retire at the age of 65 years as a condition of being offered employment by the Consulate and that the Consulate had no discretion to employ Mr Sun if he had not so agreed. As such I do not believe that there is any basis to criticise Mr Sun for not seeking to negotiate any variations to the terms of the Labour Contract at the time he was employed, as such negotiation would have been futile and Mr Sun would not have been offered employment if he had not agreed to clause 9. In any event, I have found that Mr Sun sought to negotiate an extension of the contract in March 2025 and the Ministry did not respond to his request in this regard. Finally, I reject the Consulate’s submission that it should not be criticised for simply complying with an agreement that was lawfully entered into and complied with by the parties until the end of the term of that agreement. I have already found that clause 9 of the Labour Contract is inconsistent with the AD Act and that the AD Act applied at the time that Mr Sun and the Consulate entered into the Labour Contract. Mr Sutariya’s evidence was that the Consulate respects the Australian employment law as applicable to the employment of the Consulate’s staff in Australia. However, the requirement that Mr Sun’s employment was conditional upon it ceasing when he turned 65 as a way of avoiding the unfair dismissal provisions of the FW Act shows that this is not the case.
[84]
The Consulate did not make any submissions in relation to s.387(f)-(g) and I regard these as neutral considerations.
Section 387(h)
[85]
Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant. It has long been established that the effects of dismissal on the personal or economic situation of the dismissed employee may be taken into consideration
[2026] FWC 2351
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under s.387(h) of the FW Act.49 An employee’s long and satisfactory work performance or history may be taken into consideration under s.387(h) of the FW Act and, depending on all the circumstances, may weigh in favour of a conclusion that the dismissal of the employee was harsh, unjust or unreasonable.50
Submissions
[86]
Mr Sun raised the following matters in relation to s.387(h):
a.
Mr Sun was a loyal employee who held an otherwise unblemished employment record;
b.
Mr Sun has suffered financial difficulties since the termination took effect;
c.
Mr Sun’s lack of qualifications, age and having English as a second language may make it difficult to find employment ever again;
d.
the following remarks made in B, C and D v Australian Postal Corporation,51 are germane to Mr Sun’s case:
for an older employee without qualifications or a trade, dismissal can amount to a personal catastrophe and lead to long term unemployment, serious depression, loss of the family home, failed relationships and all of the myriad tribulations that flow from that for children.52
e.
the way the termination was performed;
f.
the personal affect that the termination has had on Mr Sun; and
g.
Mr Sun is still yet to receive payment for all of his accrued entitlements.
[87]
The Consulate raised the following issues in relation to s.387(h):
a.
Any unfairness arising from the Indian Government’s policy of requiring employees to retire when they turn 65 needs to be evaluated in the context of India being a large country of 1.4 billion people which has 200 consulates or embassies in 160 countries throughout the world and that the Indian Government is managing its workforce through this policy.
b.
Mr Sun has access to superannuation because he is 65 and has been accumulating superannuation since the scheme was introduced in 1992. The Consulate submitted that Mr Sun’s accumulation of superannuation over a 33 year period which he can now access is a substantial answer to Mr Sun’s submission that he cannot access the aged pension and that his dismissal was harsh.
c.
Mr Sun was aware of clause 9, the parties expressly agreed to the term when they signed the Labour Contract on 15 April 2015, and Mr Sun was informed by Mr Sutariya in March that he needed to put his request for an extension of the Labour Agreement in writing but did not do so.
[88]
In its written submissions, the Consulate also sought to rely upon the operation of the exemption for inherent requirements contained in s.18(4)-(5) of the AD Act in response to Mr Sun’s claim that its conduct contravened the AD Act.
Findings
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Indian Government’s retirement policy
[89]
I do not accept the Consulate’s submission that any unfairness of the dismissal is diminished by the fact that it was brought about by a policy which applies to many employees in multiple countries. At the outset, I note that the terms of the Labour Contract are expressed to reflect that Mr Sun will receive Superannuation Guarantee payments and pay rises in accordance with applicable New South Wales Award entitlements (which is possibly an out of date reference given that Mr Sun was a national system employee at the time he commenced working for the Consulate). Further, Mr Sutariya’s evidence was that the Consulate respects the Australian employment law as applicable to the employment of the Consulate’s staff in Australia and that staff are provided such benefits prescribed under the relevant Australian law such as superannuation payments, public holidays, long service leave and award entitlements. This demonstrates that the Indian Government is aware that it is required to comply with the workplace laws which apply in the country where its employees are based and adapts its work practices accordingly. In the circumstances, there is simply no reason why the Indian Government cannot revise its compulsory retirement requirement for employees in Australia and other jurisdictions where such requirements are unlawful, particularly as the Indian Government has been aware of the situation in Australia at least since 2002 as a result of the NSW Commission’s decision in Thomas. It is therefore somewhat ironic that one of the purposes of the compulsory retirement policy is to have a uniform, standardised basis to avoid discrimination. In the case of Australia, the policy clearly does not meet this purpose. I find that this matter does not weigh in favour of a finding that the dismissal was not unfair.
Mr Sun’s access to superannuation
[90]
While Mr Sun’s ability to access superannuation, may, in a practical sense, mean that his circumstances are less dire than an employee in a similar situation who does not have such access, this does not reduce the harshness of the dismissal with respect to its impact on Mr Sun. This is particularly so given Mr Sun’s uncontested evidence that the dismissal has caused him to suffer financial hardship, which I accept. As Mr Sun’s employment has ceased and he has not obtained alternative employment, he is currently not receiving employer superannuation contributions, with the likely result that his superannuation balance is less than it would be if he had retired at a time of his choosing. In my view, Mr Sun is entitled to make plans for his retirement based upon his own financial circumstances and should not be forced to access his superannuation earlier than these plans anticipated simply because of the compulsory retirement policy of his employer. I find that this matter does not weigh in favour of a finding that the dismissal was not unfair.
Mr Sun’s awareness of and agreement to clause 9 in the Labour Contract
[91]
I have already found that Mr Sun was required to agree to retire at the age of 65 years as a condition of being offered employment by the Consulate and that the Consulate had no discretion to employ Mr Sun if he had not so agreed. I have also found that Mr Sun sought to extend the term of the Labour Contract but that the Consulate never responded to his request. I find that this matter does not weigh in favour of a finding that the dismissal was not unfair.
Inherent requirements of Mr Sun’s role
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[92]
Sections 18(4)-(5) of the AD Act deal with exemptions to the prohibition of age based discrimination in employment and provide:
Exemption for inherent requirements
(4) Paragraphs (1)(a), (1)(b) and (2)(c) do not make it unlawful for an employer to discriminate against another person, on the ground of the other person’s age, if the other person is unable to carry out the inherent requirements of the particular employment because of his or her age.
(5) In deciding whether the other person is unable to carry out those requirements because of his or her age, take into account:
(a) the other person’s past training, qualifications and experience relevant to the particular employment; and
(b) if the other person is already employed by the employer–the other person’s performance as an employee; and
(c) all other relevant factors that it is reasonable to take into account.
[93]
The Consulate referred to the decision of the Commission in Andrew Peggie and Geoffrey King v Qantas Airways Limited,53 which is mentioned earlier in this decision. In that case, the applicants were employed as A380 pilots on Qantas’ international routes. The applicants were dismissed because they had attained the age of 65 and the rules of the International Civil Aviation Organisation prohibit a pilot engaged in international flying from operating in most airspaces after a pilot attains the age of 65 years. The Commission found that that the dismissals were not unfair because the effect of these international aviation rules were that the applicants could not perform the inherent requirements of their positions as long haul pilots.
[94]
Although Mr Sutariya made some general assertions about the inherent requirements of Mr Sun’s position and the capacity of a person in their 60s to meet these requirements, there was no scientific evidence provided by the Consulate to verify Mr Sutariya’s assertions. Further, there was no medical evidence which established that Mr Sun was unable to meet the inherent requirements of his role with the Consulate. The application of the Indian Government’s policy in relation to compulsory retirement to employees working in Australia is not in any way comparable to the status of the rules of the International Civil Aviation Organisation which are applicable to the performance of work in international airspace. As such, I reject the Consulate’s submissions that there was no contravention of the AD Act because of ss.18(4)-(5) of the AD Act.
Is the Commission satisfied that the dismissal of Mr Sun was harsh, unjust or unreasonable?
[95]
I have made findings in relation to each matter specified in s.387 as relevant.
[96]
I must consider and give due weight to each matter as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.54
[97]
Having considered each of the matters specified in s.387 of the FW Act, I am satisfied that the dismissal of Mr Sun was harsh, unjust and unreasonable because:
•
There was no valid reason for the termination;
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•
Mr Sun had a long period of satisfactory service;
•
It would have been open to the Consulate to extend Ms Sun’s employment in response to his request in March 2025 but it did not do so;
•
The dismissal caused Mr Sun to suffer financial detriment and the Consulate’s actions in withholding Mr Sun’s entitlements for a lengthy period is likely to have compounded this detriment
•
The withholding of Mr Sun’s entitlements is inconsistent with Mr Sutariya’s evidence that the Consulate respects the Australian employment law as applicable to the employment of the Consulate’s staff in Australia; and
•
The dismissal occurred at a time when Mr Sun is likely to have difficulty obtaining alternative employment because of his age.
[98]
I am therefore satisfied that Mr Sun was unfairly dismissed within the meaning of s.385 of the FW Act.
Remedy
[99]
Being satisfied that Mr Sun made an application for an order granting a remedy under s.394, was a person protected from unfair dismissal, and was unfairly dismissed within the meaning of s.385 of the FW Act, I may, subject to the FW Act, order Mr Sun’s reinstatement, or the payment of compensation to Mr Sun.
[100]
Under s.390(3) of the FW Act, I must not order the payment of compensation to Mr Sun unless:
(a)
I am satisfied that reinstatement of Mr Sun is inappropriate; and
(b)
I consider an order for payment of compensation is appropriate in all the circumstances of the case.
Is reinstatement of Mr Sun inappropriate?
[101]
Mr Sun initially sought reinstatement. The Consulate submitted that the Commission is prohibited from making such an order because of s.29(2) of the Foreign States Immunities Act 1985, which provides:
Power to grant relief
(1) Subject to subsection (2), a court may make any order (including an order for interim or final relief) against a foreign State that it may otherwise lawfully make unless the order would be inconsistent with an immunity under this Act.
(2) A court may not make an order that a foreign State employ a person or re-instate a person in employment.
[102]
The Full Court of the Federal Court in Royal Embassy of Saudi Arabia Cultural Mission v Saleh and Others55 and the Full Bench of the Commission in Saudi Arabian Cultural Mission/Saudi Embassy v Saleh56 confirmed that this is the case but each expressed the view that s.29(2) does not prohibit an award of compensation.
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[103]
If s.29(2) of the Foreign States Immunities Act 1985 did not arise in this case, I would have found it appropriate to reinstate Mr Sun given his long period of unblemished service. As s.29(2) of the Foreign States Immunities Act 1985 prevents me from doing so, I find that reinstatement is inappropriate.
Is an order for payment of compensation appropriate in all the circumstances of the case?
[104]
Having found that reinstatement is inappropriate, it does not automatically follow that a payment for compensation is appropriate. As noted by the Full Bench, ‘[t]he question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one.’57
[105]
Where an applicant has suffered financial loss as a result of the dismissal, this may be a relevant consideration in the exercise of this discretion.58
[106]
The Consulate submitted that it should not be required to pay any compensation as Mr Sun’s employment ended because his fixed term contract expired on 31 July 2025 pursuant to the terms agreed between the parties in April 2015, not because of any initiative by the Consulate. The Consulate submitted in these circumstances, Mr Sun does not have any lost remuneration.
[107]
I do not accept the Consulate’s submissions because of my findings that Mr Sun was dismissed and that the dismissal was unfair. I accept that Mr Sun has suffered financial loss as a result of the dismissal and as such I find that an order for payment of compensation is appropriate.
Compensation – what must be taken into account in determining an amount?
[108]
Section 392(2) of the FW Act requires all of the circumstances of the case to be taken into account when determining an amount to be paid as compensation to Mr Sun in lieu of reinstatement including:
(a)
the effect of the order on the viability of the Consulate’s enterprise;
(b)
the length of Mr Sun’s service;
(c)
the remuneration that Mr Sun would have received, or would have been likely to receive, if Mr Sun had not been dismissed;
(d)
the efforts of Mr Sun (if any) to mitigate the loss suffered by Mr Sun because of the dismissal;
(e)
the amount of any remuneration earned by Mr Sun from employment or other work during the period between the dismissal and the making of the order for compensation;
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(f)
the amount of any income reasonably likely to be so earned by Mr Sun during the period between the making of the order for compensation and the actual compensation; and
(g)
any other matter that the Commission considers relevant.
[109]
I consider all the circumstances of the case below.
[110]
In relation to s.392(2)(a), the Consulate accepted that an order for compensation would have no effect on the viability of its enterprise so I make no findings in relation to this matter.
[111]
In relation to s.392(2)(b), I note that Mr Sun’s length of service was ten years and three months.
[112]
In relation to s.392(2)(c), a majority of the Full Court of the Federal Court stated:
‘[i]n determining the remuneration that the applicant would have received, or would have been likely to receive… the Commission must address itself to the question whether, if the actual termination had not occurred, the employment would have been likely to continue, or would have been terminated at some time by another means. It is necessary for the Commission to make a finding of fact as to the likelihood of a further termination, in order to be able to assess the amount of remuneration the employee would have received, or would have been likely to receive, if there had not been the actual termination.’1
[113]
The TWU submitted that Mr Sun would have been employed by the Consulate for a further period of two years if he had not been dismissed whereas the Consulate submitted that the period is more likely to have been 6-12 months because of Mr Sun’s age, his ability to access his superannuation (which I understand to be a submission that Mr Sun may have decided to retire before he turned 67 because he could access his superannuation), and if there was access to an extension of the Labour Contract, it would have been for a further short term.
[114]
Given that Mr Sun was employed by the Consulate for a period of more than ten years and there were no performance or health issues, I find that Mr Sun would have been employed until he qualified for the aged pension on 18 July 2027, a period of approximately two years from the date of dismissal. I have taken the matters which the Consulate has raised in relation to the anticipated period of employment into account when considering the impact of contingencies below.
[115]
In assessing the remuneration that Mr Sun would have received, or would have been likely to receive, if Mr Sun had not been dismissed, the Consulate submitted that the Commission could have regard to either the payslips that were in evidence showing monthly pay of $6,918.1059 or a letter from the Consulate addressed to the Deputy Commissioner of Taxation dated 8 July 2025 confirming that Mr Sun had received remuneration in the gross sum of $87,038.10 for the period from 1 July 2024 to 30 June 2025.60 The Consulate submitted that these documents could be used for the purpose of calculating the compensation cap under
1 He v Lewin [2004] FCAFC 161, [58].
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s.392(5) and that it was not necessary for the Commission to obtain further calculations form the parties. The TWU on behalf of Mr Sun raised no objections to this approach. Based the correspondence from the Consulate to the Deputy Commissioner of Taxation, I find that Mr Sun would have earned $174,076.20 for the two year anticipated employment period.
[116]
In relation to s.392(2)(d), Mr Sun gave evidence that he applied for one job, ‘a sanitation role’ and that he was told by the interviewer that at his age, there is no job suitable for him even though he has no medical or capacity concerns. I accept that Mr Sun’s efforts to mitigate his loss have been minimal. However, I believe that even if Mr Sun had engaged in greater efforts to obtain alternative employment, it is unlikely that he would have secured alternative employment, because of his age, English language skills, his lack of qualifications and because he would have likely been required to disclose to prospective employers the reason he was dismissed from his most recent employment. This in turn may have caused prospective employers to be reluctant to employ Mr Sun because of similar views to the ones held by Mr Sutariya with respect to the reduced capacity of employers in their 60s to perform the type of work that Mr Sun was engaged to do.
[117]
In relation to s.392(2)(e) and (f), Mr Sun has not obtained alternative employment. In relation to any other relevant matters under s.392(2)(g), the Consulate has submitted that I should take into account that because he is 65 years of age, Mr Sun has access to superannuation. While Mr Sun’s access to superannuation may affect his anticipated period of employment if this causes him to retire earlier than planned, this is a matter which I should take into account when considering the impact of contingencies. It is not a matter which I should take into account when deducting amounts earned since the dismissal.
Compensation – how is the amount to be calculated?
[118]
As noted by the Full Bench,61 ‘[t]he well-established approach to the assessment of compensation under s.392 of the FW Act… is to apply the “Sprigg formula” derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul’s Licensed Festival Supermarket (Sprigg).62 This approach was articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages’.63
[119]
The approach in Sprigg is 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 (remuneration lost).
Step 2: Deduct monies 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 ordered.
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.
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Step 1
[120]
I have estimated the remuneration Mr Sun would have received, or would have been likely to have received, if the Consulate had not terminated the employment to be $174,076.20 on the basis of my finding that Mr Sun would likely have remained in employment until 18 July 2027. This estimate of how long Mr Sun would have remained in employment is the ‘anticipated period of employment’.64
Step 2
[121]
Mr Sun has not earned any remuneration since the termination of his employment. The Sprigg formula does not require me to make any deductions in relation to social security or superannuation payments accessed by Mr Sun. Although I believe that it is unlikely that Mr Sun would have obtained alternative employment for the reasons already stated, I believe that it is appropriate to make a deduction of two months pay in respect of Mr Sun taking insufficient steps to mitigate his loss.
Step 3
[122]
I now need to consider the impact of contingencies on the amounts likely to be earned by Mr Sun for the remainder of the anticipated period of employment.65 It is possible that that Mr Sun may have decided to retire earlier than 18 July 2027 because of unforeseen health reasons or because the Consulate offered and he accepted an extension of the Labour Contract for a shorter period than two years. I therefore make a deduction of six months pay in relation to contingencies.
Step 4
[123]
I have considered the impact of taxation but have elected to settle a gross amount of $116.050.80 and leave taxation for determination. This amount is calculated by deducting eight months pay of $58,025.40 (being two months with respect to mitigation of loss and six months with respect to contingencies) from the amount of $174,076.20.
Is the amount of compensation to be reduced on account of misconduct?
[124]
If I am satisfied that misconduct of Mr Sun contributed to the employer’s decision to dismiss, I am obliged by s.392(3) of the FW Act to reduce the amount I would otherwise order by an appropriate amount on account of the misconduct.
[125]
I am satisfied that misconduct of Mr Sun did not contribute to the Consulate’s decision to dismiss. Therefore, the amount of the order for compensation is not to be reduced on account of misconduct.
How does the compensation cap apply?
[126]
Section 392(5) of the FW Act provides that the amount of compensation ordered by the Commission must not exceed the lesser of:
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(a)
the amount worked out under s.392(6); and
(b)
half the amount of the high income threshold immediately before the dismissal.
[127]
The amount worked out under s.392(6) is the total of the following amounts:
(a)
the total amount of the remuneration:
(i)
received by Mr Sun; or
(ii)
to which Mr Sun was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b)
if Mr Sun was on leave without pay or without full pay while so employed during any part of that period – the amount of remuneration taken to have been received by Mr Sun for the period of leave in accordance with the regulations.
[128]
Mr Sun was not on leave without pay or without full pay during the 26 weeks immediately before the dismissal.
[129]
Based the correspondence from the Consulate to the Deputy Commissioner of Taxation, I find that the total amount of the remuneration received by Mr Sun during the 26 weeks immediately before the dismissal was $43.519.05. This is less than half the high income threshold which applied immediately before the dismissal.66 The amount of compensation ordered by the Commission must therefore not exceed $43.519.05 plus superannuation. Therefore I must reduce the amount of compensation which I calculated using the Sprigg formula, being $116.050.80, to $43.519.05.
[130]
I have determined that the Consulate should pay compensation to Mr Sun in lieu of reinstatement within 14 days of the date of this decision in the gross sum of $43.519.05.
[131]
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’.67 These circumstances include my findings that Mr Sun’s employment would have continued for at least two years if he had not been dismissed and the unlikelihood that he will obtain further employment because of his age, lack of qualifications and English language skills.
[132]
I am satisfied that the amount of compensation that I have determined above takes into account all the circumstances of the case as required by s.392(2) of the FW Act, does not exceed the compensation cap in s.392(5) and that it does not include a component compensating for shock, distress or humiliation.
Conclusion
[133]
I have found that Mr Sun’s dismissal was harsh, unjust and unreasonable, that an order for compensation is appropriate and that the Consulate should pay compensation to Mr Sun of
[2026] FWC 2351
26
six months pay plus superannuation less taxation as required by law in lieu of reinstatement. The Consulate is required to pay this amount to Mr Sun on or before 30 July 2026.
[134]
An order giving effect to this decision is published with this decision.” Sun v Consulate General of India, Sydney [2026] FWC 2351 16 July 2026 per SWright DP