Edgard Elters v PM Operations NSW Pty Ltd
[2025] FWC 2326
•8 AUGUST 2025
| [2025] FWC 2326 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Edgard Elters
v
PM Operations NSW Pty Ltd
(U2025/3568)
| COMMISSIONER MATHESON | SYDNEY, 8 AUGUST 2025 |
Application for an unfair dismissal remedy
On 24 March 2025, Edgar Elters (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with PM Operations NSW Pty Ltd (Respondent). The Applicant seeks compensation.
When can the Commission order a remedy for unfair dismissal?
Section 390 of the FW Act provides that the Commission may order a remedy if:
(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and
(b) the Applicant has been unfairly dismissed.
Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed.
When is a person protected from unfair dismissal?
Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i)a modern award covers the person;
(ii)an enterprise agreement applies to the person in relation to the employment;
(iii)the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
When has a person been unfairly dismissed?
Section 385 of the FW Act provides that a person has been unfairly dismissed if the Commission is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Background
The Applicant was the General Manager of Parklea Markets for 25 years and became an employee of the Respondent in 2016 when it purchased the business. The Respondent objected to the application on the basis that the Applicant was not dismissed. As I have found in an earlier decision, the Applicant was dismissed on 14 March 2025.[1]
After determining that the Applicant was dismissed, directions were set down on 17 July 2025 to deal with the questions of whether the Respondent was a small business that had complied with the Small Business Fair Dismissal Code and the merits of the application. I considered it appropriate to hold a conference for the matter (s.399 of the FW Act) and on 17 July 2025 a notice of listing was sent to the parties in respect of a determinative conference to be held on 7 August 2025.
The directions required that the Applicant file his materials and evidence by 24 July 2025, and the Applicant did so on 24 July 2025. The directions required that the Respondent file its materials and evidence by 31 July 2025. The Respondent did not file its materials in accordance with the directions, did not ask for an extension and nor did it engage with the Commission about this.
On 4 August 2025 the Commission sent an email directing the Respondent to advise the Commission whether it intended to file its materials in accordance with the directions of 17 July 2025 and to provide its reason(s) for non-compliance with those directions. The email made clear that if the Commission did not hear from the Respondent about this, the matter may be determined based on the materials currently before the Commission. The Respondent did not respond to this email, did not file any material in accordance with the directions and did not otherwise engage with the Commission about the matter.
10. The Applicant filed submissions in the Commission on 24 July 2025 together with his witness statement and witness statements in respect of the following persons:
Justin Vella, a former colleague of the Applicant who worked as a Customer Service Representative at Parklea Markets;
Stan Koolbanis, a former colleague of the Applicant who worked at Parklea Markets.
11. The Applicant attended the determinative conference, however the Respondent did not. Chambers sent an email to the Respondent at 10:00am on 7 August 2025 seeking that the Respondent join the determinative conference using the Microsoft Teams details included in the email as soon as possible. Shortly thereafter, Chambers attempted to call the Respondent and left a voice message seeking that he join the determinative conference as soon as possible and alerting the Respondent to the email that was sent at 10:00am.
12. The Respondent did not respond to the email or phone call. The Respondent did not attempt to join the determinative conference. Chambers then sent an email to the Respondent at 10:11am on 7 August 2025 noting that the determinative conference would commence and seeking that the Respondent join the determinative conference using the Microsoft Teams details included in the email as soon as possible.
13. The determinative conference commenced shortly thereafter. The Respondent did not attempt to join the determinative conference at any stage during the proceedings.
14. The Commission has not received any communication from the Respondent regarding the above as at the time of writing this decision.
Has the Applicant been dismissed?
15. I have earlier found that the Applicant’s employment with the Respondent terminated at the initiative of the Respondent and that the Applicant has been dismissed within the meaning of s.385 of the FW Act.[2]
Initial matters
16. Under section 396 of the FW Act, the Commission is obliged to decide the following matters before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.
Was the application made within the period required?
17. Section 394(2) requires an application to be made within 21 days after the dismissal took effect.
18. The Applicant was dismissed from his employment on 14 March 2025 and made the application on 24 March 2025. I am therefore satisfied that the application was made within the period required in subsection 394(2).
Was the Applicant protected from unfair dismissal at the time of dismissal?
19. I have set out above when a person is protected from unfair dismissal.
Minimum employment period
20. The Applicant was a long serving employee who had worked for the Respondent since 2016 and I am satisfied that, at the time of dismissal, the Applicant was an employee who had completed a period of employment with the Respondent of at least the minimum employment period.
Applicant’s annual rate of earnings
21. I find that, at the time of dismissal, the sum of the Applicant’s annual rate of earnings (being $136,000) together with such other amounts worked out in accordance with regulation 3.05 of the Fair Work Regulations 2009, was less than the high income threshold, which, for a dismissal taking effect on or after 1 July 2024, is $175,000.
22. I am therefore satisfied that, at the time of dismissal, the Applicant was a person protected from unfair dismissal.
Was the dismissal consistent with the Small Business Fair Dismissal Code?
23. Section 388 of the FW Act provides that a person’s dismissal was consistent with the Small Business Fair Dismissal Code if:
(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and
(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.
24. In its response to the Application, the Respondent indicated it was a small business employing only six employees at the time of the Applicant’s dismissal. The Applicant did not contest that the Respondent was a small business employer within the meaning of s.23 of the FW Act at the relevant time, having fewer than 15 employees (including casual employees employed on a regular and systematic basis).
25. The Respondent attached a completed copy of the Small Business Fair Dismissal Code Checklist to its response to the application. The Respondent asserted in that checklist that following a disagreement between the Applicant and Mr Sam Fayad regarding a matter unrelated to the employee’s employment, the Applicant resigned voluntarily. I have earlier found that the Applicant did not resign voluntarily but was dismissed.[3]
26. The Small Business Fair Dismissal Code states:
“The Code
Summary Dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.
Other Dismissal
In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.
The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.
The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.
Procedural Matters
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.
A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”
27. Sam Fayad (S. Fayad) is the father of the Respondent’s director, Remon Fayad (R. Fayad). The Applicant gave evidence that that prior to his dismissal, Mr S. Fayad had been pressuring and bullying him about an issue unrelated to work. This issue related to Mr S. Fayad demanding shares in the Applicant’s company. The Applicant’s evidence was that on 14 March 2025:
· he received a phone call from Mr S. Fayad “verbally attacking” him;
· he enquired about Mr S. Fayad’s location and when he said he was in the office he went to see him;
· Mr S. Fayad told him to leave his work immediately, show Mr S. Fayad his back and never return;
· within 15 minutes of this occurring an email was sent to customers stating that the Applicant no longer worked for the Respondent.
28. The Applicant said he contacted the Respondent’s CFO to explain what had happened who asked him to send an email to himself, the director and the director’s brother, Fayad Fayad (F. Fayad). The Applicant said he did not receive any response until a couple of days later via SMS from Mr F. Fayad who said he did not condone what had happened and wanted to meet for coffee. When the Applicant met Mr F. Fayad for coffee, Mr F. Fayad communicated that he could not change his father’s decision and the Applicant’s entitlements would be paid.
29. It is apparent that the Applicant was dismissed without notice or warning. However, having considered the Applicant’s evidence and the Respondent’s response to the Application, there is no basis for a finding that the Respondent held any belief that the Applicant’s conduct was sufficiently serious to justify immediate dismissal or that the Applicant had engaged in serious misconduct, let alone a reasonable belief. In this respect I do not consider that the ‘Summary Dismissal’ aspect of the Code was relied on or complied with by the Respondent.
30. The Applicant’s evidence suggests the Applicant was dismissed because he would not agree to a demand from Mr S. Fayad to provide shares in his business. I accept the Applicant’s evidence in this regard and it is apparent that Mr S. Fayad did not want the Applicant to remain employed as a result of the Applicant not meeting his demand. This is not a valid reason based on the Applicant’s conduct or capacity to do the job, no warnings were provided to the Applicant, and I do not consider that the ‘Other Dismissal’ aspect of the Code was relied on or complied with by the Respondent.
31. I find that the Respondent has not complied with the Small Business Fair Dismissal Code in relation to the dismissal.
Was the dismissal a case of genuine redundancy?
32. Under s.389 of the FW Act, a person’s dismissal was a case of genuine redundancy if:
(a) the employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
33. It was not in dispute, and I find that the Applicant’s dismissal was not due to the Respondent no longer requiring the Applicant’s job to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise.
34. I am therefore satisfied that the dismissal was not a case of genuine redundancy.
35. Having considered each of the initial matters, I am required to consider the merits of the Applicant’s application.
Was the dismissal harsh, unjust or unreasonable?
36. Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
37. I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[4]
38. I set out my consideration of each below.
Section 387(a) - Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?
39. In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[5] and should not be “capricious, fanciful, spiteful or prejudiced.”[6] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[7]
40. The Applicant submitted he was dismissed because he would not agree to a demand from Mr S. Fayad provide to shares in his business. This is consistent with the Applicant’s evidence.
41. I find that the Applicant as dismissed because he would not agree to a demand from Mr S. Fayad to provide shares in his business and Mr S. Fayad did not want him to remain employed as a result. This is not a “sound, defensible or well founded”[8] reason.
42. I find that there was no valid reason related to the Applicant’s capacity or conduct.
Section 387(b) - Was the Applicant notified of the valid reason?
43. As I am not satisfied that there was a valid reason related to dismissal, this factor is not relevant to the present circumstances.[9]
Section 387(c) - Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?
44. As I have not found that there was a valid reason related to dismissal, this factor is not relevant to the present circumstances.[10]
Section 387(d) - Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?
45. I find that the Respondent did not unreasonably refuse to allow the Applicant to have a support person present at discussions relating to the dismissal. The circumstances are such that there was no real opportunity for the Applicant to request one given the way the Applicant’s dismissal took place.
Section 387(e) - Was the Applicant warned about unsatisfactory performance before the dismissal?
46. As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.
Sections 387 (f) and (g) - To what degree would the size of the Respondent’s enterprise and absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
47. While the FW Act recognises that “small business are genuinely different in nature both organisationally and operationally”,[11] it does not follow that such an employer’s procedures in effecting a dismissal can be entirely devoid of fairness.
48. The absence of dedicated human resource management specialists does not relieve an employer of extending an appropriate degree of courtesy to its employees “even when implementing something as difficult and unpleasant as the termination of a person’s employment.”[12]
49. The Respondent dismissed the Applicant summarily without a valid reason. While the Respondent may be a small business and there is no evidence of dedicated human resource management specialists, I do not consider that these factors impacted the procedures followed by the Respondent in dismissing the Applicant. Rather, it seems the procedures followed resulted from by Mr S. Fayad’s grievance with the Applicant when the Applicant did not agree to his demands.
50. I consider this factor to be a neutral consideration.
Section 387(h) - What other matters are relevant?
51. Section 387(h) requires the Commission to take into account any other matters that the
Commission considers relevant.
52. The Applicant was a long serving employee having been the General Manager of Parklea Markets for 25 years and having worked for the Respondent since 2016 when it acquired the business. The rude, aggressive and abrupt way the Applicant was dismissed from the Respondent would have been a confronting experience for the Applicant, particularly in circumstances where he had been a longstanding employee who had dedicated a considerable period of his life to his work at Parklea Markets. The Respondent’s conduct in giving effect to the dismissal was insensitive to this.
53. Further, the Applicant has indicated that his entitlements were not paid on termination. This left the Applicant in a position where he was dismissed from a role that he had been working in for a very long time, without being paid statutory entitlements, and without employment for reasons unrelated to his work performance or conduct. This would have been a very daunting situation for the Applicant who has needed to find alternative employment after a very long tenure in the same role and at the same workplace.
54. I consider that these matters are relevant to my consideration of whether the dismissal was harsh, unjust or unreasonable:
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?
55. I have made findings in relation to each matter specified in section 387 as relevant.
56. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[13]
57. Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of the Applicant was harsh, unjust and unreasonable because there was no valid reason related to the Applicant’s capacity or conduct and having regard to the way the dismissal was affected.
Conclusion
58. I am therefore satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the FW Act.
Remedy
59. Being satisfied that the Applicant:
made an application for an order granting a remedy under section 394;
was a person protected from unfair dismissal; and
was unfairly dismissed within the meaning of section 385 of the FW Act,
I may, subject to the FW Act, order the Applicant’s reinstatement, or the payment of compensation to the Applicant.
60. Under section 390(3) of the FW 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.
Is reinstatement of the Applicant inappropriate?
61. The Applicant did not seek reinstatement and did not wish to work for the same people who dismissed him. Given the poor way the Applicant was treated and dismissed after dedicating long period of service to the Respondent, this is understandable. The relationship is likely beyond repair, and I consider that reinstatement is inappropriate. I will now consider whether a payment for compensation is appropriate in all the circumstances.
Is an order for payment of compensation appropriate in all the circumstances of the case?
62. 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…”[14]
63. As I return to below, the Applicant was a long serving employee and indicated during the hearing that he had no reason to cease his employment but for his dismissal. I find that the Applicant’s employment would have been likely to continue for a further period of 6 months and the amount of remuneration that the Applicant would have received or would have been likely to receive during that period is $68,000, being half his annual salary. The Applicant experienced a period of unemployment post his dismissal and has not been able to secure employment earning as much income he did in his position prior to his dismissal. This has resulted in financial loss for the Applicant. Where an applicant has suffered financial loss as a result of the dismissal, this may be a relevant consideration in the exercise of this discretion.[15] There is no evidence before the Commission to enable a conclusion that the an order for the payment of compensation would affect the viability of the Respondent’s enterprise and as such, this does not militate against making an order. The Applicant has a lengthy period of service, and this supports the making of an order. The Applicant’s mitigation efforts also support the making of an order. There was no misconduct on the part of the Applicant that would militate against the making of an order and I have not identified contingencies or any other matters relevant to the circumstances of the case for the purposes of considering whether an order for compensation is appropriate. Having considered all the circumstances of the case I consider an order for payment of compensation is appropriate.
64. Section 392(2) of the FW 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.
65. The well-established approach to be taken in assessing compensation under s.392 is to apply the ‘Sprigg formula’, derived from the decision of the Full Bench of the Australian Industrial Relations Commission in Sprigg v Paul Licensed Festival Supermarket.[16] This approach was set out in the context of the FW Act by the Full Bench of the Commission in Bowden v Ottrey Homes Cobram and District Retirement Villages.[17]
66. I turn now to the determination of an amount of compensation having regard to the matters in s.392 of the FW Act.
Section 392(2)(c) - Remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed
67. As stated by a majority of the Full Court of the Federal Court, “[i]n determining the remuneration that the Applicant would have received, or would have been likely to receive… the Commission must address itself to the question of 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.”[18]
68. The Applicant was a long serving employee and indicated that he had no reason to cease his employment but for his dismissal. As noted above, I find that the Applicant’s employment would have been likely to continue for a further period of 6 months and the amount of remuneration that the Applicant would have received or would have been likely to receive during that period is $68,000, being half his annual salary.
Sections 392(2)(e) and (f) – Remuneration earned and income reasonably likely to be earned
69. The Applicant commenced alternative employment on 9 June 2025. The Applicant’s evidence is that he has been earning $1,211 per week in that role. As at the date of this decision this amounts to $10,899. I am satisfied that the amount of remuneration earned by the Applicant from employment or other work during the period since the dismissal is $10,899.
70. The period between the making of the order for compensation and the payment of compensation is three weeks. I am satisfied that the amount of income reasonably likely to be earned by the Applicant between the making of the order for compensation and the payment of compensation is $3,633.
71. As a result, from the $68,000 gross in six months that the Applicant would have received or would have been likely to receive, I will deduct the above amounts of $10,899 and $3,633, reducing the amount to $53,468.
Section 392(2)(b) - Length of the Applicant’s service
72. The Applicant’s length of service with the Respondent was at least 9 years. This is a lengthy period that supports a significant compensation order being made. The amount of compensation under consideration is a significant amount and I do not consider the Applicant’s length of service warrants any adjustment to it.
Section 392(2)(g)- Other relevant matters
73. I do not consider there are any other relevant matters that warrant an adjustment to the amount of compensation and do not consider there is a basis for making a deduction for contingencies in this case.
Section 392(2)(a) - Effect of the order on the viability of the Respondent’s enterprise
74. As the Commission observed in the context of earlier legislation, “where an employer seeks to rely on the circumstances referred to in s.170CH(7)(a) [which was in terms substantially the same as s.392(2)(a)], the employer must present evidence and/or argument as to the financial situation of the undertaking and the likely effect that an order for compensation would have on the viability of the undertaking...”[19]
75. I understand that the Respondent has been placed into receivership. The appointed receivers were invited to observe the proceedings. However, I have no further context about the nature of the receivership or the financial position of the Respondent. There is no evidence before the Commission to establish that that an order for compensation would have an effect on the viability of the employer’s enterprise. There will be no deduction from the compensation amount on this basis.
Section 392(2)(d) - Efforts of the Applicant to mitigate the loss suffered by the Applicant because of the dismissal
76. The Applicant indicated that he tried to apply for jobs however encountered some difficulty as he received some feedback that he was overqualified, having been the General Manager of Parklea Markets for 25 years. Notwithstanding this, the Applicant was able to secure alternative employment which commenced on 9 June 2025.
77. I am satisfied that the Applicant took reasonable steps to mitigate his loss. I do not consider any adjustment should be made to the amount of compensation on the basis of this consideration.
Section 392(3) – is the amount to be reduced on account of misconduct?
78. If I am satisfied that misconduct of the Applicant contributed to the employer’s decision to dismiss him, I am obliged by section 392(3) of the FW Act to reduce the amount I would otherwise order by an appropriate amount on account of the misconduct.
79. I am satisfied that misconduct of the Applicant did not contribute to the employer’s decision to dismiss him. Therefore, the amount of the order for compensation will not be reduced on account of misconduct.
Section 392(4) – no component for shock, distress, humiliation or analogous hurt
Compensation – how is the amount to be calculated?
80. I confirm that the compensation amount assessed contains no component for any shock, distress, humiliation, or other analogous hurt caused to the Applicant by the manner of his dismissal.
Section 392(5) – compensation cap
81. Section 392(5) of the FW Act provides that the amount of compensation ordered by the Commission must not exceed the lesser of:
(a)the amount worked out under section 392(6); and
(b)half the amount of the high income threshold immediately before the dismissal.
82. The amount worked out under section 392(6) is the total of the following amounts:
(a)the total amount of the remuneration:
(i) received by the Applicant; or
(ii) to which the Applicant was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b)if the Applicant was on leave without pay or without full pay while so employed during any part of that period – the amount of remuneration taken to have been received by the Applicant for the period of leave in accordance with the regulations.
83. The Applicant was not on leave without pay or without full pay during the 26 weeks immediately before the dismissal and I find that the total amount of the remuneration received by the Applicant during the 26 weeks immediately before the dismissal was $68,000.
84. There was no dispute and I find that the total amount of the remuneration to which the Applicant was entitled during the 26 weeks immediately before the dismissal was $68,000.
85. The high income threshold immediately before the dismissal was $175,000. Half of that amount is $87,500.
86. The amount of compensation ordered by the Commission must therefore not exceed $68,000.
Application of the approach in Sprigg
Step 1
87. I have estimated the remuneration the Applicant would have received, or would have been likely to have received, if the Respondent had not terminated the employment to be $68,000 on the basis of my finding that the Applicant would likely have remained in employment for a further period of 6 months. This estimate of how long the Applicant would have remained in employment is the “anticipated period of employment”.[20]
Step 2
88. I have found that the amount of remuneration earned by the Applicant from the date of dismissal was $10,899. and that the amount of income reasonably likely to be earned by the Applicant between the making of the order for compensation and the payment of compensation is $3,633.
89. Only monies earned since termination for the anticipated period of employment are to be deducted.[21] I therefore deduct the sum of $14,532 (being the sum of $10,899 and $3,633) from $68,000 which reduces the amount to $53,468.
Step 3
90. 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.[22] I have not identified any contingencies that would warrant a deduction.
Step 4
91. I have considered the impact of taxation but have elected to settle a gross amount of $53,468 and leave taxation for determination.
92. 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.”[23] 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 FW Act.
93. The gross amount of $53,468 is below the compensation cap.
Section 393 - Instalments
94. There was no submission that any amount of compensation should be subject to payment by instalments and I am not satisfied that in this case payment by instalments is warranted.
Conclusion
95. In light of the above, I will make an order that the Respondent pay $53,468 gross less taxation as required by law to the Applicant in lieu of reinstatement within 21 days of the date of this decision.
96. I note that the Applicant has raised a concern that he was not paid his statutory entitlements on termination, including accrued but untaken leave. The Applicant may wish to raise any concerns regarding underpayment to the Fair Work Ombudsman, being the regulator dealing with such matters.
COMMISSIONER
Appearances:
Mr E. Elters on his own behalf.
Hearing details:
2025.
Sydney, by video using Microsoft Teams.
7 August.
[1] [2025] FWC 2058.
[2] [2025] FWC 2058.
[3] [2025] FWC 2058.
[4] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
[5] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[6] Ibid.
[7] Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.
[8] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[9] Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), [41]; Read v Cordon Square Child Care Centre [2013] FWCFB 762, [46]-[49].
[10] Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), [41]; Read v Cordon Square Child Care Centre [2013] FWCFB 762, [46]-[49].
[11] Williams v Top Image Hair Design[2012] FWA 9517, [40].
[12] Sykes v Heatly Pty Ltd t/a Heatly Sports PR914149 (AIRC, Grainger C, 6 February 2002), [21].
[13] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].
[14] Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter[2014] FWCFB 7198, [9].
[15] Vennix v Mayfield Childcare Ltd [2020] FWCFB 550, [20]; Jeffrey v IBM Australia Ltd [2015] FWCFB 4171, [5]-[7].
[16] Print R025, (1998) 88 IR 21.
[17] [2013] FWCFB 431.
[18] He v Lewin [2004] FCAFC 161, [58].
[19] Moore v Highpace Pty Ltd Print Q0871 (AIRCFB, Boulton J, Watson SDP, Whelan C, 18 May 1998).
[20] Ellawala v Australian Postal Corporation Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000), [34].
[21] Ibid.
[22] Enhance Systems Pty Ltd v Cox PR910779 (AIRCFB, Williams SDP, Acton SDP, Gay C, 31 October 2001), [39].
[23] Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries[2016] FWCFB 7206, [17].
Printed by authority of the Commonwealth Government Printer
<PR790531>
0
12
0