This extract from a decision of the Fair Work Commission deals with the important legal doctrines of mitigation and the effect of a finding of misconduct on the amount of compensation awarded by the Fair Work Commission in unfair dismissal cases.
“Mitigation efforts – s.392(2)(d)
[24] I should now turn to the remaining items in s.392(2). In the first instance I will examine
the Applicant’s efforts to mitigate his loss as per s.392(2)(d). The Applicant submitted that he
had made several attempts to find employment after his dismissal. He submits that he found a
position – being the position for which he has provided a payslip – within 27 days of
termination. He submits that this timeframe demonstrates a genuine commitment to finding
alternative employment.
[25] The Respondent notes the submissions from the Applicant but submits that the FWC
should not be satisfied with what the Applicant has said. The Respondent says:
“Ordinarily, the Commission might accept such evidence, and submissions made on a
party’s behalf, at face value. Here, that would not be a safe course for the Commission
to adopt. The Applicant has been dishonest to the Respondent and the Commission (or
the Supreme Court of Queensland). Indeed, the Applicant told the Commission that
submissions made on his behalf by his lawyers to the Supreme Court were incorrect.
The Commission ought not be satisfied, on the limited material provided by the
Applicant, that the Applicant has made all reasonable attempts to mitigate his loss.
However, the Respondent accepts some efforts were made.”
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[26] I note that in his reply submissions the Applicant rejects the Respondent’s approach to
the mitigation issue. Whether in the FWC or in other tribunals and courts, it has been long
recognised that it is not good practice to assume that a witness who is untruthful on one issue
is therefore untruthful on all issues. Rather, the FWC should make an assessment of each item
of evidence and submission and determine its merits. On this particular issue, the Applicant
has provided what I accept to be a payslip from his new employer. In addition, he provided a
signed copy of the contract with the new employer. Between these two documents I am satisfied
both of his earnings in the year to date – which based on his weekly pay indicate several months
[2026] FWC 1441
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of employment – and the date on which he signed his contract. The date of signature is 20
August 2026, being 26 days after his termination.
[27] Given this, I accept that the Applicant has secured new employment in just under four
weeks. Given the circumstances of his dismissal and the fact that he has had to change
industries to secure employment, I am satisfied that his mitigation efforts were acceptable and
it would not be appropriate to make a deduction from his compensation for failure to mitigate.
Viability of the Respondent – s.392(2)(a)
[28] The Applicant submitted that the Respondent was a “substantial, government-backed
authority and the primary provider of rail services in Queensland”. As such, he submitted that
the order he sought – which was $91,550 – would not have any impact on the viability of the
Respondent. The Respondent submitted that this factor should be regarded as neutral in my
considerations. I concur with the parties that this matter is one that should have no impact on
my consideration of remedy and propose to make no amendments to the amount calculated on
account of the viability of the Respondent.
Misconduct – s.392(3)
[29] Section 392(3) provides that if an applicant’s misconduct contributed to their dismissal,
the FWC must reduce the amount it would otherwise order by an appropriate amount. In this
case, although I found that there was no valid reason for termination, I nonetheless found that
the Applicant had engaged in misconduct.10
In recognition of this, it is appropriate that I make
a deduction for that misconduct at this point. The Applicant submitted that any such deduction:
“…must be proportional to the immense financial disadvantage that has already been
suffered.
The Applicant has already paid a severe price through the permanent loss of his
specialised career and an ongoing weekly income shortfall. Applying a heavy penalty
on top of the $127,578.02 he has already lost would be entirely disproportionate and
unjust in light of his successful rehabilitation efforts.”
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[30] The Respondent noted that the FWC has applied a variety of reductions without any
specific guidance on amounts, noting deductions of between 25 and 50 percent from various
cases. The cases cited involved infractions that were not at the worst end of the spectrum of
employee behaviour and the Respondent proposed that in the present matter the deduction
should be 80 percent.
[31] On the basis that the misconduct was serious in its potential impact but did not rise to
the level that would warrant termination, I am of the view that the deduction made should be
set at 30 percent. Applying a 30 percent deduction to the figure derived at [22] above results
in a figure of $29,818.88.”
Mr Luke Bowen v Queensland Rail Transit Authority [2026] FWC 1441