This decision of the Fair Work Commission in an unfair dismissal case sets out the various options available for the Commission as remedies.
“Introduction
[1] This decision concerns an application made by Mr Wen-Kuan Wang (the Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Cth) (the Act). The Applicant was employed by Springtime Poultry Pty Ltd (the Respondent) at a poultry processing facility operated by the Baiada Group (Baida) at Mareeba in Queensland and alleges he was dismissed on 8 October 2024.
[2] The application was initially allocated to Deputy President Dobson and in a decision1 (the Decision) issued on 24 March 2025, the Deputy President dismissed the application finding the Respondent had established a valid reason for the dismissal of the Applicant and that, in the circumstances, the dismissal was not harsh, unjust or unreasonable.
[3] The Applicant subsequently lodged an appeal under s 604 of the Act, against the Decision. In a further decision (the Appeal Decision) issued on 29 August 2025, the Full Bench granted permission to appeal, upheld the appeal, and quashed the Decision. On redetermination, the Full Bench was satisfied that the Applicant was unfairly dismissed and remitted the question of remedy for determination to my chambers.
[4] The matter was then listed for hearing before me on 2 October 2025 to deal with the question of remedy. Both parties filed material in advance of the hearing in accordance with directions issued. Mr Brendan Swan of the Australasian Meat Industry Employees’ Union (AMIEU) represented the Applicant who gave written evidence along with Mr Matthew Journeaux, Secretary of the Qld, WA and NT Branch of the AMEIU. Ms Judy Cheng appeared for the Respondent.
Evidence on remedy question
[5] The Applicant was engaged as a casual employee by the Respondent. He provided payslips for the weeks ending 22 September 20242 and 29 September 20243. The payslip for the latter pay period reveals year to date (YTD) earnings for the 2024/2025 financial year of
$30,87.23, representing an average of $2,375.09 per week YTD. The Applicant accepts that his weekly earnings fluctuated according to the volume of work performed under the piece rate system in place and further accepts that the Respondent’s estimate in its Form F3 of his average weekly earnings of $2,241.32 was ‘probably’ accurate.4
[6] Following his dismissal, the Applicant states he looked for other work in the Mareeba area. While prepared to do any work, he says he was hindered in his job seeking efforts by being unable to obtain a reference from the Respondent due to having been dismissed for fraud.5 He says he was ultimately successful in finding employment with Home Farming Enterprises which is a banana farm in the Mareeba area, commencing work on 9 December 2024. He worked as a casual employee for it up till 27 June 2025 when he resigned because of an injury he sustained to his arm which he says required rest to recover. He states he has not worked since 27 June 2025 and remains on workers compensation but only receives payment for medical expenses.6 His earnings from work for Home Farming Enterprises in the period from 9 December 2024 till 27 June 2025 was $27,527.47.7 His average weekly earnings for the 28- week period of his employment with Home Farming Enterprises was $983.12.
[7] Mr Journeaux gave written evidence that he was advised on or about 8 August 2025 by the Senior AMEIU delegate at Baiada that the Respondent’s contract to provide services at its Mareeba facility had been terminated. This was subsequently confirmed by Mr Journeaux when he called Baiada’s Manager, Mr Owen Burton. Mr Burton also informed him that former poultry deboners employed by the Respondent would be offered employment with Baiada.8
[8] The Respondent furnished evidence of its financial position following the loss of its contract with Baiada. That evidence is as follows:
- A debt recovery notice sent to the Respondent from ‘recoveriescorp’ on behalf of the
ATO for the overdue sum of $352,763.92, dated 21 May 2025.9
- Email dated 25 August 2025 from the Queensland Revenue Office (QRO) for outstanding payroll tax liability.10
- Final Premium Notice from WorkCover Queensland for the amount of $27,068.93, dated 7 June 2025.11
- An email from EDA Lawyers dated 1 August 2025 advising the Respondent to seek advice from an insolvency practitioner.12
Remedy
[9] As the Applicant was found to have been unfairly dismissed, I must consider the question of remedy pursuant to section 390 of the Act. Significantly, under s 390(3) of the Act, I must not order the payment of compensation to the Applicant unless:
(a) I am satisfied that reinstatement of the Applicant is inappropriate; and
(b) I consider an order for payment of compensation is appropriate in all the circumstances of the case.
[10] Dealing firstly with whether reinstatement is inappropriate, the Applicant does not seek reinstatement as his role no longer exists because the Respondent lost its contract to provide services to Baiada on or about 8 August 2025. In these circumstances, I am satisfied that reinstatement is inappropriate.
[11] 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…”13. Having found that the Applicant was unfairly dismissed and noting that the Applicant was unemployed for several weeks following his dismissal, I consider that an order for payment of compensation is appropriate. There is nothing in the material filed by the Respondent in the substantive proceedings that persuades me that a payment of compensation would be inappropriate.
[12] Turning now to the question of compensation, s 392(2) of the Act requires all of the circumstances of the case to be taken into account when determining an amount to be paid as compensation to the Applicant in lieu of reinstatement including:
(a) the effect of the order on the viability of the Respondent’s enterprise;
(b) the length of the Applicant’s service;
(c) the remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed;
(d) the efforts of the Applicant (if any) to mitigate the loss suffered by the Applicant because of the dismissal;
(e) the amount of any remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for compensation;
(f) the amount of any income reasonably likely to be so earned by the Applicant 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.
[13] I consider all the circumstances of the case below.
Effect of order on viability of the Respondent’s enterprise – s 392(2)(a)
[14] The Respondent submits that it is in acute financial distress, claims that all of its bank accounts have been frozen since early 2025, its sole contract with Baiada at Mareeba was
terminated on 8 August 2025 leaving it without revenue and the Company carries substantial liabilities with both the ATO and QRO. The Respondent also refers to a legal opinion received that it is probably insolvent and recommends immediate action regarding liquidation. The Respondent submits that in all of these circumstances, any substantial order for compensation would be incapable of enforcement, would serve no practical purpose and would merely accelerate liquidation.
[15] Put at its highest, the Respondent’s limited evidence before me indicates it may have outstanding debts with the ATO and QRO. Beyond its submissions, there was no probative evidence going to the overall financial state of the Respondent. For example, a detailed financial statement, balance sheet or similar documentation was not produced in evidence. Nor was any owner, Director or Officer of the Respondent called to give evidence. I also note that despite receiving advice from EDA Layers on 1 August 2025 that it should seek advice from an insolvency practitioner, there is no evidence that the Respondent has done so or taken further action regarding its financial position. In all of these circumstances, the Respondent has not provided sufficient evidence that would establish that an award of compensation would affect its viability.
Length of the Applicant’s service – s 392(2)(b)
[16] The Applicant commenced employment with the Respondent on 15 October 2021 and was terminated on 8 October 2024, a period of almost three years which was served as a casual employee. I consider that the Applicant’s length of service is such that it does not favour an adjustment to the compensation otherwise calculated.
Remuneration that the Applicant would have received but for dismissal – s 392(2)(c)
[17] As stated by a majority of the Full Court of the Federal Court, “in 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.”14
[18] The Applicant contends that had he not been dismissed, there is no reason to believe he would not have continued to be employed for the longer term. That said, he accepts that the Respondent lost its contract with Baiada on 8 August 2025 at which point all employees of the Respondent ceased employment. He properly concedes that had he not been dismissed on 8 October 2024 he would have lost his job in any event on or about 8 August 2025 when the Respondent lost the contract with Baiada. I find that had the Applicant not been dismissed by the Respondent on 8 October 2024 it is likely that he would have remained employed by the Respondent up until 8 August 2025.
[19] The Applicant’s evidence reveals that his YTD average weekly earnings for the three months prior to his dismissal on 8 October 2024 were $2,375.09. The Respondent challenges this figure on the basis of the wide fluctuations in weekly earnings experienced by the Applicant
due to the piece rate system and variable production demand. The Respondent claimed that the Applicant’s weekly earnings ranged between $169 and $3,802, although unhelpfully, it produced no evidence on the Applicant’s earnings to support that submission. Significantly, in the Respondent’s Form F3 response, the Respondent stated that the Applicant’s weekly earnings were $2,241.32. I am prepared to accept that figure which the Applicant agrees is accurate taking into account the wide fluctuations in weekly earnings.
[20] I am satisfied that in applying the average weekly earnings rate of $2,241.32 to the 44- week period between 8 October 2024 and 8 August 2025, the Applicant’s anticipated earnings for that 44-week period is $98,618.08.
Efforts of the Applicant to mitigate his loss – s 392(2)(d)
[21] Turning to the Applicant’s efforts to mitigate his losses, the Applicant must provide evidence that he has taken reasonable steps to minimise the impact of his dismissal15 and what is reasonable depends on the circumstances of the case.16 The Applicant states that he made various unsuccessful job applications in the wake of his dismissal, hampered he says by the absence of a reference due to his dismissal for fraud. While the Applicant did not provide evidence of his job applications I found his evidence to be credible in circumstances where he secured casual employment in December 2024 with Home Farming Enterprises.
[22] The Applicant states he subsequently resigned his employment with Home Farming Enterprises on 27 June 2025 in order to recover from a work-related injury sustained to his arm. Beyond that assertion he provided no evidence that he was incapable of working in the period between 27 June 2025 and 8 August 2025 or that he took steps to find other suitable employment in the wake of his resignation on 27 June 2025. I am not satisfied that the Applicant has taken reasonable steps to mitigate his loss in the period after 27 June 2025. In circumstances where his average weekly earnings with Home Farming Enterprises were $983.12, I intend to make a deduction for the 6-week period from 27 June 2025 to 8 August 2025 of $5,898.72. This reflects the Applicant’s failure to take reasonable steps to mitigate his losses between 27 June 2025 and 8 August 2025.
Income earned since dismissal – s 392(2)(e)
[23] As stated above, the Applicant secured alternate employment on 9 December 2024, earning $27,527.47 between that date and 27 June 2025 when he resigned that employment. It is appropriate to make a deduction of those earnings from the compensation otherwise calculated above.
Income likely to be reasonably earned between date of compensation order and payment of compensation – s 392(2)(f)
[24] As to the income likely to be earned in the period between the making of the order for compensation and the payment of compensation I am satisfied that the Applicant is unlikely to earn any income. It is consequently not appropriate to take prospective earnings into account in determining the amount of compensation to be awarded.
Other relevant matters – s 392(2)(g)
[25] No other relevant matters were raised by the parties going to an order for compensation under s 392(2)(g) of the Act.
[26] As noted by the Full Bench in Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries, “[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).17 This approach was articulated in the context of the Act in Bowden v Ottrey Homes Cobram and District Retirement Villages18.”19
[27] The approach to calculating compensation per Sprigg is as follows:
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.
[28] I have estimated the remuneration the Applicant would have received, or would have been likely to have received, if the Respondent had not terminated his employment to be
$98,618.08 on the basis of my finding it is likely the Applicant would have remained in employment for a further period of 44 weeks. This estimate of how long the Applicant would have remained in employment is the “anticipated period of employment”.20
[29] I have found that the Applicant earned remuneration following his dismissal but is unlikely to earn remuneration between the date of the Commission making an order for compensation and the payment of compensation. The Applicant received earnings in the “anticipated period of employment” after his date of dismissal of $27,527.47. It is therefore appropriate to make a deduction for that income received since dismissal. I have also found that the Applicant did not take reasonable steps to mitigate his losses in the period between 27 June 2025 and 8 August 2025 and intend to make a deduction of $5,898.72, that representing the 6- week period up to 8 August 2025. The amount of compensation calculated is consequently reduced to $65,191.89.
[30] I now need to consider the impact of contingencies on the amounts likely to be earned by the Applicant for the remainder of the anticipated period of employment.21 I do not consider it appropriate to deduct an amount for contingencies.
[31] I have considered the impact of taxation but have elected to settle a gross amount of
$65,191.89 which is to be subject to normal taxation. 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.”22 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 Act.
[32] I am obliged by section 392(3) of the Act to reduce the amount I would otherwise order by an appropriate amount on account of misconduct. As the Full Bench in its Appeal Decision found that the alleged misconduct was not established, I am not satisfied that misconduct of the Applicant contributed to the employer’s decision to dismiss him. No deduction for misconduct is appropriate.
[33] Finally, ss 392(5) & (6) of the Act requires that the amount of compensation ordered by the Commission must not exceed the lesser of 6 months’ pay calculated at the high-income threshold (HIT) or the total amount of remuneration the Applicant received or was entitled to receive during the 26-week period prior to his dismissal. At the time of the Applicant’s dismissal the HIT was $175,000 meaning that the compensation cap under subsection 392(5) of the Fair Work Act (the Act) is $87,500. Based on the Applicant’s average weekly earnings prior to dismissal of $2,241.32, I estimate the amount of compensation he was entitled to receive in the 26-week period prior to dismissal was $58,274.32. As the latter figure is less than the HIT, $58,274.32 acts as the cap in awarding compensation.
[34] In light of the above, I will make an order that the Respondent pay $58,274.32 gross less taxation as required by law to the Applicant in lieu of reinstatement within 14 days of the date of this decision.
Conclusion
[35] I am satisfied that reinstatement would be inappropriate and that an award of compensation is appropriate. I have determined to make an order that the Respondent pay
$58,274.32 gross less taxation as required by law to the Applicant in lieu of reinstatement within 14 days of the date of this decision. An order giving effect to this decision will be issued separately in conjunction with this decision.”
Wang v Springtime Poultry Pty Ltd [2025] FWC 2957 delivered 3 October 2025 per Masson DP