The Fair Work Commission adheres to the established methodology enunciated in Sprigg v Paul’s Licensed Festival Supermarket (1988) 88 IR 21, which serves as a general guide or rule of thumb. This approach is employed as a procedural framework by the Commission to determine relevant considerations and apply them in a consistent and impartial manner.
The applicant was employed by the Respondent as a Plastic Injection Moulding Diesetter/Toolmaker. The applicant was employed from 29 February 2016 and dismissed on 30 April 2020. In this case, Commissioner Bissett found that there was a valid reason for dismissal due to poor performance. Following the warning, however, the Applicant was terminated too soon without an adequate opportunity to improve his performance. This warranted 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 the best remedy. The length of an employee’s service to an employer is one of the factors used to determine this payment. In this case, the Applicant worked for the Respondent for 4 years and 2 months. The applicant earned $1,052.04 per week during his employment. The Applicant mitigated his loss by securing other employment after his termination. The Commissioner calculated the difference between the amount the applicant would have earned if he had not been terminated. He also calculated what he earned in his newly obtained employment. 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 as a skilled labourer from 1 August 2017 until made redundant on 13 May 2020. The question for Deputy President Colman was to determine whether the Applicant’s dismissal 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 circumstances as the applicant’s position no longer existed. The Commission considered what the applicant would likely have received if he continued employment with the respondent. It was ruled that he would not likely have been employed for much longer and he was fired a very short time later. The Deputy President found that any efforts to mitigate the loss of income in the first week were most prone 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 full-time, in the position of office coordinator from September 2018 until her dismissal on 20 April 2020. The applicant was terminated via text message for poor performance. The applicant argued that her dismissal had no valid reason and that it was unfair as she was not afforded an opportunity to respond to poor performance allegations.
The Deputy President was required to consider the remuneration the Applicant was likely to receive if she continued her employment with the Respondent. The Applicant submitted that she was not content in her position and would not continue her employment for longer than a 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 alleges she was bullied by the Respondent’s owner. Once the applicant lodged the unfair dismissal application to the Commission, the Respondent was largely uncooperative 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. This was when they took over the previous business for which she worked. She was employed full-time as Head Barista.
The applicant proved that her dismissal, on the balance of probabilities, was unfair pursuant to the Fair Work Act 2009 (Cth). Compensation was ordered to be the remedy as reinstatement was inappropriate in all 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 $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 in superannuation.
The applicant was employed by the Respondent casually from 26 March 2015 and terminated on 2 April 2020. Although the applicant was employed casually, he argued that he worked regularly and systematically, over 50 hours a week. He was promoted to Manager in 2018.
The Respondent failed to make submissions to the Commission in due time, and their evidence was excluded. The Commissioner found that the Applicant’s dismissal was unfair and ordered the Respondent to remedy the Applicant through compensation of $7,246.80.
The applicant was employed by the Respondent as a trade assistant and was dismissed for misconduct. The Commission found that dismissal without notice, and thus characterising the Applicant’s dismissal as 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-week notice period or payment in lieu should have been provided to the Applicant.
Misconduct on the part of the applicant reduced the compensation awarded for his application, and the Commission reduced his compensation by 20%. The Deputy President’s final order required the Respondent to pay $2,356.00 plus 9.5% superannuation.
The Applicant was employed in a senior management role with the respondent. He was employed between 6 August 2018 and 17 December 2019 until his dismissal later. The Respondent submitted that the Applicant’s dismissal was 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. He was promoted a number of times throughout his employment which began on April 18, 2012. The applicant’s employment was terminated on February 7, 2020. The Respondent argued that the Applicant did not have grounds to bring an unfair dismissal application as they were dismissed for 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, despite a valid reason for dismissal. The Commissioner calculated the Applicant’s economic loss to be approximately 12 weeks, taking into account all the circumstances. A further reduction of 20% was applied as the Applicant had not tried to mitigate the unfair dismissal. The Respondent was ordered to pay $10,492.63 gross.
The Applicant was employed by the Respondent on 5 February 2019, as a ‘Clerk’ in the Sea Freight division. He was dismissed on January 20, 2020. The Respondent did not file or rely upon any further material in the matter except the Employer’s Response to the F3 application.
Deputy President Boyce was satisfied that the dismissal was unfair and ordered that compensation was the best remedy in the circumstances. The approach Sprigg used to calculate the compensation the Applicant would receive was $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, the Commission determined that she was a regular and systematic casual employee who was protected by unfair dismissal laws. There was a restructuring within the organisation that offered permanent positions to their staff. As the applicant had limited shift availability, she was dismissed.
Deputy President Sams found that although the dismissal reason was valid, the termination of the applicant’s employment was procedurally unfair. Therefore, it warranted a remedy. An order was made for five weeks’ pay to be paid to the applicant, equal 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. On that basis, it was harsh, unjust, and unreasonable. Deputy President Saunders ordered compensation for the Applicant in the amount of $3,189.01 to put her in an economic position she was in before the Respondent’s dismissal.
It was found in the Applicant’s favour that her termination of employment by the Respondent amounted to unfair dismissal. In this case, Deputy President Lee calculated the Applicant’s remedy of compensation at the Level 1 rate. This was under the Award the Applicant should have been paid under. This was rather than her annual salary at her dismissal.
The Commission calculated that the Applicant’s employment had no indication of ending except for unfair termination. Therefore, it was determined that it would continue for 10 weeks. Thus, the Respondent was ordered to compensate the Applicant for $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, was not a valid reason for dismissal. It was determined that the Respondent did not treat the Applicant fairly in the employment termination.
Thus, as the applicant did not seek reinstatement of his position, Commissioner Simpson ordered compensation. The applicant was 61 years old and the Commissioner ordered compensation of 16 weeks The current COVID-19 pandemic was considered 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, as a trainer and assessor. The applicant commenced his employment on 3 June 2013 and was summarily dismissed. However, the dismissal reason 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 equaled $23,532.00. The Applicant had some income on 25 February 2020 of $2,158.00. Thus, the final amount awarded was $21,374.00.
The applicant was employed by the Respondent in the position of ‘Sales Engineer – Materials Handling’ as of April 1, 2019. The Respondent verbally informed the applicant that his employment was terminated on 16 December 2019.
Deputy President Boyce found that the applicant’s dismissal was harsh, unjust, and unreasonable. He ordered compensation as reinstatement was not appropriate in the circumstances. The applicant’s annual salary was $105,000.00, plus superannuation and other benefits. The applicant’s anticipated period of employment was 13 weeks, and this was reduced by one week because of the short period of employment. The final compensation order was $16,381.91 gross and $2,457.29 in superannuation.
The applicant was 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. In the course of 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, and the applicant’s employment was terminated.
However, the applicant was not given any prior warning before her termination and therefore was denied 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 as a part-time bookkeeper by the Respondent. The Respondent contended that the applicant’s dismissal was 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 in every case. He decided to order ten weeks’ pay plus superannuation for the applicant. This amounts 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 in operational requirements. It also contended 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 unfair.
Compensation was ordered; however, it was only equivalent to the appropriate consultation period. This compensation order amounts 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. She would have remained employed until the replacement operator came into effect on 6 March 2020. The applicant’s gross remuneration to the Respondent was $1,300 per week. However, this total amount was discounted by how much the Applicant received in her new employment following her dismissal from the Respondent.
The applicant was awarded $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 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 after 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 Commission asked 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 $988.20.
The Commission found that the applicant was unfairly dismissed despite poor performance allegations. The order for compensation amounted to $3,972.90 because it was ruled that the applicant would have been employed for five weeks after her actual dismissal date.
The applicant contended that he was unfairly dismissed after being informed by the store manager. He did not fit in with the direction the store was going. The applicant was not warned or consulted before his dismissal.
Deputy President Asbury found that the dismissal was harsh, unjust, and unreasonable and ordered compensation for the applicant. The Commission found that the applicant would have received $10,364.84.00 in wages and $529.90 if he had not been unfairly dismissed. This was excluding any leave 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 applied for relief from unfair dismissal. The applicant earned $1,400 in casual work. The Commission ruled that the applicant would have been employed for an additional four weeks before being reasonably dismissed by the Respond
Thus, the Respondent was ordered to pay $4,073.42, inclusive of superannuation.
The Commission found that the respondent’s dismissal of the applicant 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 service length of 25 years was found to warrant compensation on the higher end of the scale. Thus, the Respondent was ordered to pay $19,002.10.
The Applicant successfully applied for an indemnity costs order against the Respondent after a successful unfair dismissal remedy application.
The Deputy President ordered the Respondent to pay indemnity costs of $8,987.25, inclusive of GST.
The respondent terminated the applicant 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 Applicant’s annual wage and therefore less than the compensation cap.
The applicant was found to have been unfairly dismissed by the respondent and was therefore compensated to restore lost pay but for the dismissal.
The compensation order was reduced by the amount paid to the Applicant in November 2019, and the final compensation order amount was $17,758.00.
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