The Fair Work Commission currently follows the rule of thumb, the methodology in Sprigg v Paul’s Licensed Festival Supermarket (1988) 88 IR 21, which is as follows:
The Applicant was employed by the Respondent as a Plastic Injection Moulding Diesetter/Toolmaker. The Applicant was employed from 29 February 2016 and was dismissed in 30 April 2020. In this case, Commissioner Bissett found that there was a valid reason for dismissal on the basis of poor performance. However, the Applicant had not been given adequate opportunity to improve his performance after the warning and was terminated too soon after. This warranted an unfair dismissal as the termination was unreasonable pursuant to s 387 of the Fair Work Act 2009 (Cth).
The Commissioner considered s 392 when determining the appropriate remedy for the Applicant. In this case, monetary compensation was considered to be the most appropriate form of remedy. The length of an employee’s service with the employer is one of the factors explored to determine this payment, in this case, the Applicant had worked for the Respondent for 4 years and 2 months. The Applicant was earning $1,052.04 per week during his employment. The Applicant had appropriately mitigated his loss by securing other employment after his termination. The Commissioner calculated the difference between the amount the Applicant would have earnt if he had not been terminated and what he earned in his new employment, and this resulted in a loss of $4,470.04 over the relevant period. An employee who gains further employment and actually suffers no loss of income attributable to the dismissal will have no grounds for compensation as the shock, hurt and humiliation of the dismissal is strictly not to be considered in the calculation (Kable v Bozelle  FWCFB 3512). The Respondent was also ordered to pay 9.5% superannuation on that amount, paid straight into the Applicant’s superannuation fund.
The Applicant was employed by the Respondent in the position of a skilled labourer from 1 August 2017 until he was made redundant on 13 May 2020. The question for Deputy President Colman was to determine whether the dismissal of the Applicant was a genuine redundancy or not. The Deputy President found that it was not a genuine redundancy as the Respondent failed to properly consult with the Applicant regarding the impending redundancy and discuss his views about mitigation or alternatives.
Thus, the remedy ordered was compensation which was considered appropriate in all the circumstances as the Applicant’s position no longer existed. The Commission considered what the Applicant would likely have received if he had continued employment with the Respondent, and it was ruled that he would have not likely been employed for much longer and dismissed a very short time later. The Deputy President found that any efforts to mitigate the loss of income in the first week was most likely to be ineffective, so he ordered compensation for one week. This amounted to $1,831.06 including superannuation.
The Applicant was employed by the Respondent on a full-time basis, in the position of an office coordinator from September 2018 until her dismissal on 20 April 2020. The Applicant was terminated via text message on the grounds of allegations of poor performance. The Applicant was successful in arguing that her dismissal had no valid reason and that it was unfair as she was not afforded an opportunity to respond to the allegations of poor performance.
The Deputy President was required to consider the remuneration the Applicant was likely to have received if she continued in her employment with the Respondent. The Applicant had submitted that she was not content in her position, and that she would not have continued her employment for much longer than few weeks. On this basis, the Deputy President found it appropriate to make a compensation order for the total amount of $9,417.00 (including 9.5% superannuation), subject to relevant taxation.
The Applicant had submitted an anti-bullying application to the Commission against the Respondent, prior to her dismissal. The Applicant was alleging that she was bullied by the owner of the Respondent. Once the Applicant lodged the unfair dismissal application to the Commission, the Respondent was largely un-cooperative by not submitting an employer’s response, and not showing up for the scheduled conciliation conference.
The Applicant submitted that she was employed by the Respondent for two years from 5 May 2018, when they took over the previous business for whom she was working. She was employed on a full-time basis as Head Barista.
The Applicant was successful in proving that her dismissal, on the balance of probabilities, was unfair pursuant to the definition of the Fair Work Act 2009 (Cth). Compensation was ordered to be the remedy as reinstatement was inappropriate in all the circumstances. Due to the bullying and the relationship breakdown between the Applicant and Respondent, the Commission found that it was likely the Applicant would not have continued her employment past 31 December 2019. Thus, the remedy was calculated from her dismissal on 12 December 2019 to 31 December 2019, where the Applicant would have earned an amount of $7,134.60. However, the Deputy President deducted the two weeks remuneration paid in lieu of notice. The Respondent was therefore ordered to pay $5,096.14 gross and $677.78 for superannuation.
The Applicant was employed by the Respondent on a casual basis from 26 March 2015 and was terminated on 2 April 2020. Although the Applicant was employed on a casual basis, he argued that he worked on a regular and systematic basis, working over 50 hours a week, and was promoted to the position of Manager in 2018.
The Respondent failed to enter submissions to the Commission in due time, and therefore their evidence was excluded. The Commissioner found that the dismissal of the Applicant was unfair and ordered the Respondent to remedy the Applicant through compensation amounting to $7,246.80.
The Applicant was employed by the Respondent in the position of a trade assistant and was dismissed for misconduct. The Commission found that dismissal without notice, and thus characterising the Applicant’s dismissal as one of summary dismissal, was considered harsh. The Commission determined that in the circumstances, the Applicant’s misconduct warranted dismissal but not summary dismissal, so his five weeks’ notice period or payment in lieu should have been provided to the Applicant.
Misconduct on the part of the Applicant reduces his compensation awarded for his application, and the Commission reduced his compensation by 20%. The Deputy President’s final order was for the Respondent to pay $2,356.00 plus 9.5% superannuation.
The Applicant was employed in a senior management role with the Respondent and was employed between 6 August 2018 and 17 December 2019 until his dismissal on this later date. The Respondent submitted that the Applicant’s dismissal was a case of genuine redundancy.
However, upon reviewing the facts, Deputy President Dean found that this was not a case of genuine redundancy but the Respondent dismissing the Applicant for unsatisfactory performance. The Deputy President found in favour of the Applicant and ordered compensation to amount to $17,856.92. This amount was calculated by looking at the sixteen weeks the Applicant would have likely continued to be employed with the Respondent, with eight weeks covered by the redundancy payout and the Applicant having received 2.2 weeks of JobSeeker payments.
The Applicant was employed by the Respondent as a factory hand, and then promoted a number of times throughout his employment which began on 18 April 2012. The Applicant’s employment was terminated on 7 February 2020. The Respondent argued that the Applicant did not have grounds to bring an unfair dismissal application as they were dismissed for reasons of genuine redundancy.
However, the Commission found in favour of the Applicant and found that his termination was unjust and unreasonable. The failure to consult and redeploy the Applicant was unjust and unreasonable, in spite of there being a valid reason for the dismissal. The Commissioner calculated the economic loss of the Applicant to be approximately 12 weeks, taking into account all the circumstances. A further reduction of 20% was applied as the Applicant had not made an effort to mitigate the unfair dismissal. The Respondent was ordered to pay $10,492.63 gross.
The Applicant was employment with the Respondent, on 5 February 2019, in the position of a ‘Clerk’ in the Sea Freight division until his dismissal on 20 January 2020. The Respondent did not file or rely upon any further material in the matter except the Employer’s Response in the F3 application.
Deputy President Boyce was satisfied on the facts that the dismissal was unfair, and subsequently ordered that compensation was the most appropriate remedy in the circumstances. The approach in Sprigg used to calculate the compensation the Applicant would receive amounted to $6,904.50. The original amount the Applicant was to receive was deducted by 25% for his own misconduct that contributed to the Respondent’s decision to dismiss the Applicant.
The Applicant was employed by the Respondent as a domestic violence support worker. Although the Applicant was employed on a casual basis, it was accepted by the Commission that she was a regular and systematic casual employee who was protected by the unfair dismissal laws. There was a restructure within the organisation that was moving to offer permanent positions to their staff. As the Applicant had limited shift availability, she was dismissed.
Deputy President Sams found that although the reason for dismissal was valid, the termination of the Applicant’s employment was procedurally unfair and therefore warranted a remedy. An order was made for five weeks’ pay to be paid to the Applicant, which amounted to $3,576.38.
The Applicant was employed by the Respondent in the position of Administrative Assistant from 21 August 2013, until her dismissal on 22 April 2020. The Respondent argued that the Applicant’s dismissal was a genuine redundancy, however, the Applicant denied this contention and argued it was an unfair dismissal.
The Commission found in favour of the Applicant that her dismissal was not a genuine redundancy, and on that basis, was harsh, unjust and unreasonable. Deputy President Saunders ordered compensation for the Applicant in the amount of $3,189.01 to put her in the economic position but for the dismissal of her employment by the Respondent.
It was found in the Applicant’s favour that her termination of employment by the Respondent amounted to an unfair dismissal. In this case, Deputy President Lee calculated the Applicant’s remedy of compensation by the Level 1 rate under the Award the Applicant should have been paid under, rather than her annual salary at the time of her dismissal.
The Commission calculated that the Applicant’s employment had no indication that it would end but for the unfair termination, and therefore determined that it would have continued for a further period of 10 weeks. Thus, the Respondent was ordered to compensate the Applicant by the amount of $7,911.60, plus 9.5% superannuation.
The Applicant was summarily dismissed by the Respondent, and he contended that this was a harsh, unjust and unreasonable dismissal. The alleged misconduct against the Applicant was not found by the Commissioner and therefore, the misconduct was not a valid reason for dismissal. It was determined that the Respondent did not afford procedural fairness to the Applicant in the termination of the employment.
Thus, as the Applicant did not seek reinstatement of his position, Commissioner Simpson ordered for compensation. The Applicant was 61 years old and the Commissioner ordered for compensation of 16 weeks’ pay. The current COVID-19 pandemic was taken into consideration and the compensation amount was reduced by 4 weeks appropriately. The compensation was $19,253.72.
The Applicant was employed by the Respondent, who is a registered training provider, in the position of a Trainer and Assessor. The Applicant commenced his employment on 3 June 2013 and was summarily dismissed. However, the reason of dismissal was not valid as the Applicant did not engage in the misconduct for which he was dismissed. As there was no valid reason for dismissal, the Respondent unfairly dismissed the Applicant.
The Applicant’s weekly remuneration was $1,961.00 and he was awarded 12 weeks which equalled to $23,532.00. The Applicant had had some income on 25 February 2020 in the amount of $2,158.00. Thus, the final amount awarded as compensation to the Applicant was $21,374.00.
The Applicant was employed by the Respondent in the position of ‘Sales Engineer – Materials Handling’ on 1 April 2019. The Respondent verbally informed the Applicant that his employment was being terminated on 16 December 2019.
Deputy President Boyce found that the Applicant’s dismissal was harsh, unjust and unreasonable and ordered for compensation as reinstatement was not appropriate in the circumstances. The Applicant’s yearly salary was $105,000.00, plus superannuation and other benefits. The Applicant’s anticipated period of employment was for 13 weeks, and this was reduced by one week because of the short period of employment. The final compensation order amounted to $16,381.91 gross and $2,457.29 in superannuation.
The Applicant had been employed for approximately 9 months by the Respondent from 5 March 2018 until his dismissal on 20 December 2018. The Applicant was employed as a chef and food safety trainer by the Respondent. During the employment, the Respondent extended the Applicant’s probationary period and put her on a performance improvement plan. On 19 December 2018, a Probation Review Committee meeting was held, after which the Applicant’s employment was terminated.
However, the Applicant was not given any prior warnings before her termination and therefore was deprived of an opportunity to respond. Thus, it was ordered that the Applicant be compensated 8 weeks’ pay minus one week for the payment in lieu of notice, amounting to $8,788.64.
The Applicant was employed in the part-time position of bookkeeper by the Respondent. The Respondent contended that the Applicant’s dismissal was a case of genuine redundancy. However, it was ruled that this was not a case of genuine redundancy, as there was no proper consultation with the Applicant and the Small Business Fair Dismissal Code was not complied with.
Deputy President Sams found that the Sprigg formula was not appropriate for every case and decided to make a compensation order for ten weeks’ pay plus superannuation to the Applicant. This amounted to $6,500.00 gross plus $247 in superannuation.
In this case, the question for the Commission was whether the Applicant’s dismissal was or was not a genuine redundancy. The Respondent contended that the Applicant’s position was no longer required following a change of operational requirements and that there were no other positions available for redeployment. However, Commissioner Simpson found that the failure to consult with the Applicant was unreasonable in the circumstances and the termination was deemed unfair.
Compensation was ordered; however, it was only equivalent to the appropriate period for consultation. This compensation order amounted to $1,918.26 gross plus 9.5% superannuation.
Deputy President Saunders found, on the balance of probabilities, that the Applicant had not resigned from her employment in December 2019 and that she would have remained employed until the new operator came into effect on 6 March 2020. The Applicant’s gross remuneration with the Respondent was $1,300 per week. However, this total amount was discounted by how much the Applicant received from her new employment following her dismissal with the Respondent.
The Applicant was awarded an order for compensation of $4,145.85.
The Applicant was dismissed for serious misconduct with an allegation of theft against him, by the Respondent. Although the Applicant did not actually deny the theft, Commissioner Simpson still found that the dismissal was harsh in the circumstances. The Applicant was employed for more than 9 years and lost his accrued long service leave as a result of being summarily dismissed.
The Respondent was ordered to pay $28,280.00 gross to the Applicant.
The Commission found that the Applicant’s dismissal was harsh, unjust and unreasonable in the circumstances. Thus, the Respondent was ordered to pay compensation to the Applicant in the amount of $34,590.00 in gross wages, with $2,052.00 additionally for superannuation.
The Respondent was a small business and the question for the Commission was whether the Small Business Fair Dismissal Code requirements had been met in the Applicant’s dismissal.
Commissioner Platt found that the Applicant’s dismissal was harsh, unjust and unreasonable and breached the Code. Thus, the Respondent was ordered to pay compensation in the amount of $988.20.
The Commission found that the Applicant was unfairly dismissed despite allegations of poor performance. The order for compensation amounted to $3,972.90 because it was ruled that the Applicant would have been employed for a further five weeks after her actual date of dismissal.
The Applicant contended that he was unfairly dismissed after being informed by the store manager that he did not fit in with the direction the store was progressing towards. The Applicant was not given any warning or consultation before his dismissal.
Deputy President Asbury found that the dismissal was harsh, unjust and unreasonable and ordered for compensation to the Applicant. The Commission found that the Applicant would have been likely to receive $10,364.84.00 in wages and $529.90 if he had not been unfairly dismissed, excluding any leave that was paid in lieu of notice.
The Commission found that the Applicant was unfairly dismissed by the Department of Parliamentary Services. Reinstatement was not appropriate in the circumstances, so compensation was ordered in the amount of $1,763.96. This was because the Commission found that the Applicant would have remained in employment and earned that amount had he not been unfairly dismissed.
After the Commission ruled that the Respondent unfairly dismissed the Applicant, the Applicant made an application for relief of unfair dismissal. The Applicant earned a gross amount of $1,400 from casual work. The Commission ruled that the Applicant would have been employed for an additional four weeks before he would have been reasonably dismissed by the Respondent.
Thus, the Respondent was ordered to pay $4,073.42, inclusive of superannuation.
The Commission found that the Applicant’s dismissal by the Respondent was harsh, unjust and unreasonable. The Respondent was consequently ordered to pay compensation to the Applicant for the economic loss suffered.
The Applicant’s significant length of service of 25 years was found to warrant a compensation on the higher end of the scale. Thus, the Respondent was ordered to pay $19,002.10.
The Applicant successfully made an application for an indemnity costs order against the Respondent after a successful application for an unfair dismissal remedy.
The Deputy President ordered for the Respondent to pay indemnity costs in the amount of $8,987.25, inclusive of GST.
The Applicant was terminated by the Respondent for misconduct. Despite this, the Commission found that the Applicant’s dismissal was still harsh, unjust and unreasonable. Thus, the application was upheld and compensation was ordered.
The Respondent was ordered to pay the Applicant $21,716.18 gross, which was less than half the annual wage of the Applicant and therefore less than the compensation cap.
The Applicant was found to have been unfairly dismissed by the Respondent, and was therefore ordered compensation to restore lost pay but for the dismissal.
The compensation order was reduced by the amount that was paid to the Applicant in November 2019, and the final compensation order amount was $17,758.00.
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