Jorge Borlandelli v Sydney Luxury Smash Repairs Pty Ltd
[2025] FWC 1428
•26 MAY 2025
| [2025] FWC 1428 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jorge Borlandelli
v
Sydney Luxury Smash Repairs Pty Ltd
(U2024/13607)
| COMMISSIONER CRAWFORD | SYDNEY, 26 MAY 2025 |
Application for relief from unfair dismissal – no valid reason – worker dismissed due to temporary absence due to injury – lack of procedural fairness – dismissal unfair – compensation ordered.
Background
Jorge Borlandelli and Jackson Pierce were previously good friends. Mr Pierce is an owner and director of Sydney Luxury Smash Repairs Pty Ltd (SLSR). Mr Borlandelli was employed by SLSR as a panel beater from around 16 October 2023 until 24 October 2024. Mr Pierce dismissed Mr Borlandelli via a text message on 24 October 2024. The relationship between Mr Borlandelli and Mr Pierce deteriorated dramatically after Mr Borlandelli’s dismissal. Mr Borlandelli subsequently filed workers’ compensation claims, filed an unfair dismissal application on 14 November 2024, and has commenced an underpayment case against SLSR in the Federal Circuit and Family Court of Australia. Although liability has been accepted by SLSR’s insurer for Mr Borlandelli’s workers’ compensation claims, Mr Pierce and his legal team appear convinced Mr Borlandelli falsely claimed to have injured his back at work and that Mr Borlandelli injured his back doing jujitsu at a gym. Mr Borlandelli’s workers’ compensation claims unjustifiably consumed a lot of SLSR’s attention during the unfair dismissal proceedings, given Mr Borlandelli’s conduct in making the claims occurred after his employment had ended. This decision concerns the confined issue of whether Mr Borlandelli was unfairly dismissed by SLSR on 24 October 2024 and, if he was, what remedy should be ordered.
A schedule identifying the evidence and submissions relied upon by the parties is attached at the end of this decision. Both parties were granted permission to be represented by lawyers on the basis that representation would enable the matter to be dealt with more efficiently. All witnesses were cross-examined on their evidence during hearings in Sydney on 28 April 2025 and 15 May 2025. I have considered all the evidence and submissions.
Consideration - initial matters
Under s.396 of the Fair Work Act 2009 (FW Act), the Commission is obliged to decide the following matters before considering the merits of an unfair dismissal 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 (SBFDC);
(d) whether the dismissal was a case of genuine redundancy.
Filing period
Mr Borlandelli was dismissed on 24 October 2024. Mr Borlandelli’s unfair dismissal application was filed on 14 November 2024, which was the last day of the 21-day filing period.
Was Mr Borlandelli 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.
Mr Borlandelli commenced employment in around October 2023. SLSR indicated on its Form F3 response that it had 18 employees when Mr Borlandelli was dismissed. That means Mr Borlandelli had completed the minimum employment period of six months for a non-small business employer.
Mr Borlandelli’s annual salary with SLSR prior to his dismissal was $141,482.59 plus superannuation, which is less than the high-income threshold. It is also highly likely that Mr Borlandelli’s employment with SLSR was covered by the Vehicle Repair, Service and Retail Award 2020.
I find Mr Borlandelli was a person protected from unfair dismissal.
Other initial matters
SLSR is not a small business within the meaning of the FW Act, which means I do not need to consider whether Mr Borlandelli’s dismissal was consistent with the SBFDC.
SLSR did not argue Mr Borlandelli’s dismissal was a case of genuine redundancy, and it clearly was not.
Consideration – unfair dismissal
Given my findings above in relation to the initial matters, I am required to consider the merits of Mr Borlandelli’s unfair dismissal application.
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.
I am required to consider each of these factors, to the extent they are relevant to the factual circumstances before me.[1]
Was there a valid reason for dismissal related to Mr Borlandelli’s capacity or conduct?
In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[2] and should not be “capricious, fanciful, spiteful or prejudiced.”[3] 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.[4]
Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.[5] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.[6]
The end of Mr Borlandelli’s employment with SLSR is captured in a series of text messages between Mr Borlandelli and Mr Pierce on 22 and 24 October 2024. The relevant messages are:
i.Mr Borlandelli sent Mr Pierce the following message at 4:51am on 22 October 2024:
“Morning Jacko I woke up with a lower back pain I can’t move, I won’t be at work today. I’m sorry”
ii.Mr Pierce sent Mr Borlandelli the following message at 4:53am on 22 October 2024:
“Fuck sakes.
You have so much fucking time off
Just finished [sic] up end of the year.”iii.Mr Borlandelli sent Mr Pierce the following message at 5:00am on 22 October 2024:
“If you want me to go like this, I go but I can’t move.”
iv.Mr Pierce sent Mr Borlandelli the following message at 5:07am on 22 October 2024:
“Na don’t worry.
Have the day off and get better but you just have too much time off.”
v.Mr Pierce sent Mr Borlandelli another message at 5:08am on 22 October 2024 which stated:
“We’ll speak tomorrow or Thursday.”
vi.Mr Borlandelli replied “Thanks!” to Mr Pierce at 5:08am on 22 October 2024.
vii.Mr Borlandelli sent Mr Pierce a medical certificate via text message on 23 October 2024. The medical certificate from Dr Maarefjou stated that Mr Borlandelli was not fit for work from 22 to 24 October 2024 inclusive.
viii.Mr Borlandelli sent Mr Pierce a medical certificate via text message at 2:09pm on 24 October 2024. The medical certificate from Dr Lorens stated that Mr Borlandelli was not fit for work from 24 to 26 October 2024 inclusive.
ix.Mr Pierce sent Mr Borlandelli the following message at 2:37pm on 24 October 2024:
“Don’t bother coming back. Just come pick up your tools on Saturday.”
x.Mr Borlandelli sent a message stating “Understood” to Mr Pierce at 2:54pm on 24 October 2024.
xi.Mr Pierce sent the following message to Mr Borlandelli at 4:11pm on 24 October 2024:
“Thanks.
Sorry it’s come to this.”
xii.Mr Borlandelli sent a message stating “All good, no worries” to Mr Pierce at 4:15pm on 24 October 2024.
The case advanced by SLSR during the hearing was that the reason for Mr Borlandelli’s dismissal was a series of unauthorised absences from work and ongoing poor performance from Mr Borlandelli.
Mr Pierce’s witness statement identified a series of dates where Mr Borlandelli allegedly took annual leave and sick leave.[7] Mr Pierce explained during cross-examination that his wife, Bianca, prepared the list and that he did not review SLSR’s business records to verify that Mr Borlandelli was absent on the relevant dates. Bianca Pierce was not called to give evidence by SLSR. Mr Borlandelli provided Google Maps extracts which purport to show that he travelled to and from work on several of the dates where Mr Pierce claims he was absent.
I am not satisfied on the balance of probabilities that Mr Borlandelli took unauthorised absences during his employment with SLSR. It is not clear from the evidence that Mr Borlandelli was absent from work on the dates identified by Mr Pierce. Mr Pierce admitted during cross-examination that several of the dates were not correct. The evidence also does not establish that any of Mr Borlandelli’s absences were not authorised. SLSR clearly operates in a relatively informal manner and that makes it very difficult to retrospectively assess whether any absence was authorised or not. That is particularly the case when Mrs Pierce is the person responsible for maintaining leave records and she was not called to give evidence.
The vague hearsay evidence led by Mr Pierce is not sufficient to establish that Mr Borlandelli took unauthorised absences during his employment with SLSR. The taking of unauthorised absences did not provide a valid reason for Mr Borlandelli’s dismissal.
SLSR led evidence from Mr Pierce, Mr Peckett, Mr Macklin-Shaw, and Mr Shalhoub to establish that Mr Borlandelli’s work performance was poor. The witnesses referred to Mr Borlandelli watching his phone when he was meant to be working. The witnesses identified several examples of poor panel beating work from Mr Borlandelli which had cost SLSR time and money. Mr Borlandelli denied the allegations of poor work performance.
I consider the evidence concerning Mr Borlandelli’s work performance is difficult to assess. SLSR’s witnesses did provide persuasive and consistent evidence of various issues with Mr Borlandelli’s work. However, the four witnesses remain employed or connected with SLSR which means they have an interest in supporting SLSR’s case regarding why Mr Borlandelli was dismissed. SLSR did not provide contemporaneous documentary evidence regarding any of the alleged instances of poor performance from Mr Borlandelli.
I accept based on the consistent evidence from SLSR’s witnesses that there were issues with Mr Borlandelli’s performance during his employment with SLSR. However, it is also clear from Mr Macklin-Shaw’s evidence during cross-examination that it is reasonably common for issues to arise with the work being performed by employees at SLSR and that people get yelled at for making mistakes.[8]
I am not satisfied that Mr Borlandelli’s poor performance provided a valid reason for his dismissal. There is a distinct lack of documentary evidence regarding the alleged issues. There is also no reference to Mr Borlandelli’s performance in the messages sent by Mr Pierce on 22 and 24 October 2024. If Mr Borlandelli’s performance was as bad as SLSR’s witnesses suggested, I consider it is implausible that Mr Pierce would not have referred to Mr Borlandelli’s performance when he communicated that Mr Borlandelli was being dismissed.
I consider SLSR has attempted to recast the reason for Mr Borlandelli’s dismissal after the event to assist it in defending his unfair dismissal application. It is clear from the messages sent by Mr Pierce to Mr Borlandelli that the main trigger for Mr Borlandelli’s dismissal was his absence from work due to an injury from 22 to 24 October 2024, and that he would not be fit to return to work until at least 26 October 2024. Regardless of how Mr Borlandelli’s injury was caused, Mr Borlandelli’s absence from work due to an injury did not provide a valid reason for his dismissal. Mr Borlandelli was protected from being dismissed due to a temporary absence caused by illness or injury.[9] I accept Mr Garan’s submission that SLSR is fortunate Mr Borlandelli has elected to pursue an unfair dismissal application as opposed to other actions that may have been available to him under the FW Act.
I find there was not a valid reason for Mr Borlandelli’s dismissal related to his capacity or conduct. This factor weighs in favour of finding that Mr Borlandelli’s dismissal was unjust and unreasonable.
For completeness, I do not consider Mr Borlandelli’s circumstances are comparable to that of a worker who could not attend work due to being hungover.[10] Mr Borlandelli had medical certificates covering his absences and there is no evidence he set out to deliberately hurt his back, regardless of where the injury occurred.
I also reject the repudiation arguments raised by SLSR. I consider Mr Borlandelli was summarily dismissed at the initiative of SLSR.
Was Mr Borlandelli notified of the reason for dismissal?
Proper consideration of s.387(b) requires a finding to be made as to whether Mr Borlandelli “was notified of that reason”. Contextually, the reference to “that reason” is the valid reason found to exist under s.387(a).[11]
Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,[12] and in explicit[13] and plain and clear terms.[14]
Mr Borlandelli was not notified of the reason for his dismissal before it was communicated to him by Mr Pierce, initially with notice on 22 October 2024, and then as a summary dismissal on 24 October 2024.
The conversations that allegedly occurred during Mr Borlandelli’s employment about his performance and absences do not constitute being notified of the reason for dismissal. At their highest, they are discussions about performance or conduct during the regular course of employment. In any event, Mr Pierce did not refer to these issues when he communicated Mr Borlandelli’s dismissal. Mr Pierce focused solely on Mr Borlandelli’s absences.
This factor weighs in favour of finding the dismissal was unjust and unreasonable.
Was Mr Borlandelli given an opportunity to respond to the valid reason?
An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.[15]
The opportunity to respond does not require formality and this factor is to be applied in a common-sense way to ensure the employee is treated fairly.[16] Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.[17]
Mr Borlandelli was not provided with an opportunity to respond to the reason for his dismissal before it was communicated to him by Mr Pierce, initially with notice on 22 October 2024, and then as a summary dismissal on 24 October 2024. Mr Borlandelli communicated he was unfit for work due to a back injury. Mr Pierce responded by dismissing Mr Borlandelli. Mr Borlandelli was not given any opportunity to respond to any concerns about his absences or performance.
This factor weighs in favour of finding that Mr Borlandelli’s dismissal was unjust and unreasonable.
Did SLSR unreasonably refuse to allow Mr Borlandelli to have a support person present to assist at discussions relating to the dismissal?
This is a neutral factor given there were no discussions relating to the dismissal.
Was Mr Borlandelli warned about unsatisfactory performance before the dismissal?
Mr Borlandelli was not issued with any written warnings about unsatisfactory performance. However, SLSR’s witnesses did consistently state that Mr Borlandelli had been verbally warned about unsatisfactory performance on several occasions. Given the lack of documentary evidence, I consider this to be a neutral factor.
To what degree would the size of SLSR’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
I accept SLSR is a reasonably small business and that this substantially impacted on the procedures that were followed in effecting Mr Borlandelli’s dismissal. However, I consider Mr Pierce made no serious attempt to implement a proper process in relation to Mr Borlandelli’s dismissal. Mr Pierce’s view appears to be that because he views all his workers like his family he can act as he likes as a manager, including yelling at staff and making spontaneous emotional decisions to dismiss an employee. Given Mr Pierce’s attitude towards managing his business, I do not consider the small size of SLSR’s enterprise should reduce the weight given to the procedural deficiencies concerning Mr Borlandelli’s dismissal.
To what degree would the absence of dedicated human resource management specialists or expertise in SLSR’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
I accept the absence of dedicated human resource specialists had a substantial impact on the procedures that were followed by SLSR in effecting Mr Borlandelli’s dismissal. However, given Mr Pierce’s attitude towards managing his business, I do not consider the absence of human resource specialists should reduce the weight given to the procedural deficiencies concerning Mr Borlandelli’s dismissal.
What other matters are relevant?
Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.
Mr Borlandelli referred to his back injury, his family commitments, and his financial circumstances as a relevant factor. I do not consider Mr Borlandelli’s circumstances are particularly unique or unusual. I also note Mr Borlandelli has been receiving workers’ compensation payments on account of his injury and illness. I do not consider Mr Borlandelli’s personal circumstances weigh in favour of finding that he was unfairly dismissed.
Conclusion
I have made findings in relation to each matter specified in s.387 of the FW Act. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[18]
Having considered each of the matters specified in s.387 of the FW Act, I am satisfied that the dismissal of Mr Borlandelli was unjust and unreasonable. There was not a valid reason for Mr Borlandelli’s dismissal, and he was denied procedural fairness. I do not consider any of the matters in s.387 weigh against finding that Mr Borlandelli was unfairly dismissed.
I find Mr Borlandelli was unfairly dismissed.
Remedy
Is reinstatement of Mr Borlandelli inappropriate?
Mr Borlandelli does not seek reinstatement. I find reinstatement is inappropriate.
Is an order for payment of compensation appropriate in all the circumstances of the case?
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…”[19]
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.[20]
Compensation – what must be taken into account in determining an amount?
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 Mr Borlandelli in lieu of reinstatement including:
(a) the effect of the order on the viability of SLSR’s enterprise;
(b) the length of Mr Borlandelli’s service;(c)the remuneration that Mr Borlandelli would have received, or would have been likely to receive, if Mr Borlandelli had not been dismissed;
(d)the efforts of Mr Borlandelli (if any) to mitigate the loss suffered by Mr Borlandelli because of the dismissal;
(e)the amount of any remuneration earned by Mr Borlandelli 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 Mr Borlandelli 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.
I consider all the circumstances of the case below.
Effect of the order on the viability of SLSR’s enterprise
I have no evidence about the viability of SLSR. I do not consider Mr Pierce’s reference to having “money” during cross-examination can be relied upon as evidence of SLSR’s viability. Mr Pierce could potentially have personal wealth acquired separately from SLSR. I consider this is a neutral factor in assessing compensation.
Length of Mr Borlandelli’s service
Mr Borlandelli was employed for slightly over one year. This is a reasonably short period of service. I consider Mr Borlandelli’s short length of service weighs in favour of a lower compensation order.
Remuneration that Mr Borlandelli would have received, or would have been likely to receive, if Mr Borlandelli had not been dismissed
As stated by a majority of the Full Court of the Federal Court, “[i]n determining the remuneration that the employee 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.”[21]
Assessing how long Mr Borlandelli would have remained employed by SLSR is complicated because of his back injury and acute stress reaction. Mr Borlandelli has been unfit for work since 21 October 2024 and he remains unfit for work in May 2025. It is likely that Mr Borlandelli’s stress condition would not have arisen if he was not unfairly dismissed by SLSR. However, Mr Borlandelli’s ongoing back injury means that he would not have been fit to resume his panel beating duties with SLSR for a lengthy period. Taking all the evidence into account, I find Mr Borlandelli would likely have remained employed with SLSR for a further six months, if he had not been unfairly dismissed. This is the “anticipated period of employment.”[22] It is an offence under s.248 of the Workers Compensation Act 1987 (NSW) for an employer to dismiss an employee within six months of the worker becoming an “injured worker” who is eligible for workers’ compensation. I consider SLSR would have proceeded to terminate Mr Borlandelli’s employment when the six-month period of protection had expired.
Ordinarily, the remuneration Mr Borlandelli would have earned during the anticipated period of employment would be half his annual salary of $141,482.59 plus superannuation. However, Mr Borlandelli has remained unfit for work and in receipt of workers’ compensation payments since his dismissal on 24 October 2024. If Mr Borlandelli had not been dismissed on 24 October 2024, he would have remained unfit to return to work and would have continued receiving workers’ compensation payments. That means the remuneration Mr Borlandelli would have earned during the anticipated period of employment must be determined by his workers’ compensation payments.[23]
At the end of the hearing on 15 May 2025, I requested that the parties provide an agreed document setting out the workers’ compensation payments Mr Borlandelli received following his dismissal. An agreed document was not provided. However, SLSR provided several letters issued by iCare to Mr Borlandelli which outline his weekly compensation entitlements. I consider it is appropriate to rely on the figures in these documents.
It appears from the workers’ compensation payment information provided by SLSR that Mr Borlandelli was paid at the following rates since his injury on 21 October 2024:
· First 13 weeks = 95% of PIAWE[24] = $2,317.04 gross
· After 13 weeks = 80% of PIAWE = $1,951.19 gross, this increased to $1,960.00 gross from 1 April 2025
It appears that Mr Borlandelli received the following amounts during the anticipated period of employment:
· 13 weeks x $2,317.04 gross = $30,121.52 gross
· 10 weeks x $1,951.19 gross = $19,511.90 gross
· 3 weeks x $1,960.00 gross = $5,880.00 gross
TOTAL = $55,513.42 gross
Mr Borlandelli provided documentation regarding his workers’ compensation payments on 26 May 2025. It is unclear why these figures were not provided earlier. The figures differ to a minor extent to the figures I have relied upon. In any event, my assessment of remuneration lost is not impacted by the accuracy of the relevant compensation figure. Whatever the correct figure for remuneration expected to be lost is, it will be cancelled out in full by the workers’ compensation payments Mr Borlandelli has received, leaving an amount of zero.
Efforts of Mr Borlandelli to mitigate the loss suffered by Mr Borlandelli because of the dismissal
Mr Borlandelli must provide evidence that he has taken reasonable steps to minimise the impact of the dismissal.[25] What is reasonable depends on the circumstances of the case.[26]
Mr Borlandelli has not been fit to work since he was dismissed on 24 October 2024. Mr Borlandelli’s loss has been mitigated significantly by his workers’ compensation payments. I find no deduction should be made for a failure to mitigate loss.
Amount of remuneration earned by Mr Borlandelli from employment or other work during the period between the dismissal and the making of the order for compensation
I have determined that Mr Borlandelli’s anticipated period of employment ended on 24 April 2025, which is prior to the making of any order for compensation. That means I only need to calculate Mr Borlandelli’s earnings during the anticipated period of employment.
Based on my calculations above, the amount of remuneration earned by Mr Borlandelli during the anticipated period of employment is a total of $55,513.42 in workers' compensation payments.
Amount of income reasonably likely to be so earned by Mr Borlandelli during the period between the making of the order for compensation and the actual compensation
Given the anticipated period of employment has finished, I do not need to take this into account.
Other relevant matters
Given I have found that Mr Borlandelli’s dismissal was unfair, it follows that it was also unfair for Mr Borlandelli to be dismissed without notice. I consider Mr Borlandelli should be compensated for the loss he has suffered from being summarily dismissed. Mr Borlandelli would have been entitled to be paid for two weeks in lieu of notice in accordance with s.117(3) of the FW Act. Two weeks’ pay for Mr Borlandelli equates to $5,441.64 gross plus superannuation of $625.79.
Compensation – how is the amount to be calculated?
As noted by the Full Bench, “[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).[27] This approach was articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages.[28]
The approach in Sprigg is as follows:
Step 1: Estimate the remuneration the employee 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. Workers’ compensation payments are deducted but not social security payments. The failure to mitigate loss may lead to a reduction in the amount of compensation ordered.
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.
Step 1
I have estimated that Mr Borlandelli would have remained employed by SLSR for six months until 24 April 2025.
Mr Borlandelli remained unfit for work and received remuneration of $55,513.42 gross in workers’ compensation payments during the anticipated period of employment.
Step 2
Only monies earned since termination for the anticipated period of employment are to be deducted.[29]
Mr Borlandelli has received $55,513.42 gross in workers’ compensation payments during the anticipated period of employment.
Mr Borlandelli’s remuneration was not impacted by his dismissal on 24 October 2024. Mr Borlandelli was unfit for work and receiving workers’ compensation after his dismissal on 24 October 2024. If Mr Borlandelli had not been dismissed, he would have remained unfit for work and would have received the same workers’ compensation payments. That would normally leave zero compensation.
However, for the reasons identified above, I consider Mr Borlandelli should be compensated for two weeks of wages which he should have received in lieu of notice, which equates to $5,441.64 gross plus superannuation of $625.79.
Step 3
I now need to consider the impact of contingencies on the amounts likely to be earned by Mr Borlandelli for the remainder of the anticipated period of employment.[30]
Mr Borlandelli’s anticipated period of employment ended on 24 April 2025. I therefore do not need to make a deduction for contingencies.
Step 4
I have considered the impact of taxation but have elected to settle a gross amount of $5,441.64 plus superannuation of $625.79 and leave taxation for determination.
Compensation – is the amount to be reduced on account of misconduct?
If I am satisfied that misconduct of Mr Borlandelli contributed to the employer’s decision to dismiss, I am obliged by s.392(3) of the FW Act to reduce the amount I would otherwise order by an appropriate amount on account of the misconduct.
I am not satisfied that Mr Borlandelli engaged in misconduct. No deduction is required to be made for misconduct.
Compensation – how does the compensation cap apply?
Given Mr Borlandelli’s rate of earnings a compensation cap of $70,741.30 plus superannuation applies in accordance with s.392(6) of the FW Act.
Is the level of compensation appropriate?
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.”[31]
The application of the Sprigg formula has resulted in an outcome where Mr Borlandelli would be awarded $5,441.64 gross plus superannuation of $625.79.
I consider Mr Borlandelli’s dismissal was extremely unfair and that the conduct of Mr Pierce was inappropriate and regrettable. Compensation in the amount of $5,441.64 gross plus superannuation does not appear appropriate given those circumstances. However, compensation orders are not designed to be a form of punitive measure to punish perceived poor employment or business practices of an employer.[32] The reason that the Sprigg compensation calculation has produced such a low outcome is because Mr Borlandelli has been receiving workers’ compensation payments since he was dismissed.
Given the workers’ compensation payments Mr Borlandelli has continued to receive since his dismissal, I am satisfied on balance that the level of compensation is appropriate.
Compensation order
Given my findings above, I will make an order[33] that SLSR must pay Mr Borlandelli $5,441.64 less taxation, plus superannuation of $625.79 to be paid into Mr Borlandelli’s nominated fund, with both payments to be made within seven (7) days of the date of this decision.
COMMISSIONER
Appearances:
Mr Daniel Garan from Berrigan Doube Lawyers representing Mr Borlandelli.
Mr Dominic Green from Green & Associates representing SLSR.
Hearing:
2025.
Sydney.
28 April.
15 May.
SCHEDULE
Evidence
Mr Borlandelli
A1 Jorge Borlandelli witness statement dated 31 January 2025 and annexures.
A2 Jorge Borlandelli reply witness statement dated 20 March 2025 and annexures.
SLSR
R1 Tarquinn Shalhoub (Manager) witness statement dated 13 March 2025.
R2 Kyle Macklin-Shaw (Panel Beater) witness statement dated 13 March 2025 and annexure.
R3 Michael Peckett (Spray Painter) witness statement dated 13 March 2025 and annexure.
R4 Jackson Pierce (Owner and Director) witness statement dated 13 March 2025 and annexures.
Submissions
Mr Borlandelli
Outline of submissions dated 31 January 2025.
Mr Garan provided oral submissions during the hearing on 15 May 2025.
SLSR
Outline of submissions dated 12 March 2025.
Mr Green provided oral submissions during the hearing on 15 May 2025.
[1] 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].
[2] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[3] See ibid.
[4] Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.
[5] Edwards v Justice Giudice [1999] FCA 1836, [7].
[6] King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].
[7] Mr Pierce’s statement, Exhibit R4 at [28].
[8] Transcript at PN1141 to PN1146.
[9] Fair Work Act 2009 (Cth) s 352.
[10] Mr Green referred to the decision in Chapman v Tassal Group Limited (T/A Tassal Operations Pty Ltd)[2017] FWC 4630.
[11] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].
[12] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
[13] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
[14] See ibid.
[15] Crozier v Palazzo Corporation Pty Ltd Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].
[16] RMIT v Asher (2010) 194 IR 1, 14-15.
[17] Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
[18] 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].
[19] Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter[2014] FWCFB 7198, [9].
[20] Vennix v Mayfield Childcare Ltd [2020] FWCFB 550, [20]; Jeffrey v IBM Australia Ltd [2015] FWCFB 4171, [5]-[7].
[21] He v Lewin [2004] FCAFC 161, [58].
[22] Ellawala v Australian Postal Corporation Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000), [34].
[23] Double N Equipment Hire Pty Ltd t/a A1 Distributions v Alan Humphries [2016] FWCFB 7206 at [32].
[24] Pre-injury average weekly earnings.
[25] Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34] citing Lockwood Security Products Pty Ltd v Sulocki and Ors PR908053 (AIRCFB, Giudice J, Lacy SDP, Blair C, 23 August 2001), [45].
[26] Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34] citing Payzu Ltd v Saunders [1919] 2 KB 581.
[27] (1998) 88 IR 21.
[28] [2013] FWCFB 431.
[29] See ibid.
[30] Enhance Systems Pty Ltd v Cox PR910779 (AIRCFB, Williams SDP, Acton SDP, Gay C, 31 October 2001), [39].
[31] Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries[2016] FWCFB 7206, [17].
[32] Kable v Bozelle, Michael Keith[2015] FWCFB 3512 at [17].
[33] PR787614.
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