Unfair dismissal remedies; compensation

When assessing compensation for unfair dismissal the Fair Work Commission is required to heed whether or not the applicant has strived to gain alternative work to mitigate his or her loss. Here is an example.

“The Respondent submits that the law in relation to mitigation is summarised in Biviano v Suji Kim Collection, PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002) from [34] onwards and refers to the passage at [34]-[37]:

“In Lockwood Security Products Pty Limited v Sulocki (Sulocki) a Full Bench of the Commission decided that the “primary question” in applying paragraph 170CH(2)(d) is whether the applicant has “acted reasonably”. In that context the Commission cited Westen v Union des Assurances de Paris with approval. In that matter Madgwick J said: “[t]he party claiming damages need only act reasonably”.

The question of what steps were reasonable in the mitigation of loss is a question of fact to be determined having regard to the particular circumstances. The common law principles regarding mitigation may be of some assistance in applying paragraph 170CH(2)(d).

At common law a plaintiff is expected to take reasonable steps to minimise the effect of a breach of contract. As Lord Haldane said in British Westinghouse Electric and Manufacturing Co. v Underground Electric Railways Co. of London:

“The fundamental basis is thus compensation for pecuniary loss flowing from the breach; but this first principle is qualified by a second, which imposes on a plaintiff the duty of taking all reasonable steps to mitigate the loss consequent on the breach, and debars him from claiming any part of the damage which is due to his neglect to take such steps.”

For an example of this principle in operation see Efstathiou v Property Management Virtual Assistant Pty Ltd (2022 FWC 2922 de3livered 2 November 2022 per Simpson C