Mr Patrick Siriphone v Royal Institution of Charted Surveyors / RICS Australasia Pty Ltd - [2025] FWC 2305

[2025] FWC 2305

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Patrick Siriphone
v

Royal Institution of Charted Surveyors / RICS Australasia Pty Ltd

(U2025/4275)

COMMISSIONER WALKADEN

SYDNEY, 7 AUGUST 2025

Application for unfair dismissal remedy – dismissal was not a genuine redundancy – dismissal found to be harsh, unjust or unreasonable - compensation ordered

This decision determines an application commenced by Mr Patrick Siriphone (the Applicant) under section 394 of the Fair Work Act 2009 (FW Act) against his former employer, Royal Institution of Charted Surveyors / RICS Australasia Pty Ltd (RICS / the Respondent). Mr Siriphone contends that he was a person protected from unfair dismissal at the time of being dismissed, that he was unfairly dismissed and seeks that the Fair Work Commission (Commission) order a remedy for the unfair dismissal. The remedy sought by Mr Siriphone is compensation.

RICS opposed the application on the two grounds. The first ground was that Mr Siriphone’s dismissal was a genuine redundancy within the meaning of section 389 of the FW Act. A finding in favour of RICS on that ground would produce the result that Mr Siriphone cannot have been unfairly dismissed (section 385(d) of the FW Act) and consequently, the Commission has no power to order remedy (section 390(1)(b) of the FW Act). The second ground was that Mr Siriphone’s dismissal was not harsh, unjust or unreasonable. A finding in favour of RICS on that ground would produce the result that Mr Siriphone cannot have been unfairly dismissed (section 385(b) of the FW Act) and consequently, the Commission has no power to order remedy (section 390(1)(b) of the FW Act).

The two grounds upon which the application was contested are the central issues determined by this decision.

On 26 June 2025, the application was the subject of a hearing before me. The hearing concerned the genuine redundancy objection taken by RICS, merits and remedy. Mr Siriphone appeared for himself. Ms Emma Blaney, Head of HR Operations, appeared for RICS. At the hearing, Mr Siriphone gave evidence and was cross-examined. Ms Blaney gave evidence and was cross-examined. There were no other witnesses called by either party. All the evidence and submissions made by the parties has been considered.

For the reasons explained below, I have dismissed RICS’s genuine redundancy objection. I have taken into account the matters set out at section 387 of the FW Act and concluded that Mr Siriphone’s dismissal was harsh, unjust or unreasonable. I have made an order for the payment of compensation. The amount of compensation is a gross amount $9,443.80 plus superannuation.

Preliminary matters

The effect of section 390 of the FW Act is that the Commission may order a remedy for unfair dismissal if the Commission is satisfied of the two matters set out below:

(a) the person was protected from unfair dismissal at the time of being dismissed; and
(b) the person has been unfairly dismissed.

Section 382 of the FW Act explains when a person is protected from unfair dismissal. To be a person protected from unfair dismissal, the person must have completed a period of employment with his or her employer of at least the minimum employment period (section 382(a)); and one or more of the following apply:

(a) a modern award covers the person;
(b) an enterprise agreement applies to the person in relation;
(c) 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.

It was uncontested, and I find, that Mr Siriphone was a person protected from unfair dismissal within the meaning of section 382 of the FW Act. At the time of Mr Siriphone’s dismissal, RICS was not a small business employer within the meaning of section 23 of the FW Act. Mr Siriphone was employed by RICS from 22 July 2024 until 31 March 2025. This is a period of employment that is of at least the six month minimum employment period (section 383(a) of the FW Act). It follows that the requirement in section 382(a) of the FW Act is satisfied. Mr Siriphone contended that he was covered by the Miscellaneous Award 2020, which is a modern award. As explained in greater detail below, I do not accept that Mr Siriphone was covered by the Miscellaneous Award 2020 (or any other modern award). There was no enterprise agreement that applied to Mr Siriphone’s employment. The sum of Mr Siriphone’s annual rate of earnings was $96,000.[1] This is less than the high income threshold. It follows that the requirement in section 382(b) of the FW Act is satisfied.

Section 385 of the FW Act explains when a person has been unfairly dismissed. It was uncontested, and I find, that Mr Siriphone was dismissed, which means that section 385(a) is satisfied. Section 385(c), which concerns the Small Business Fair Dismissal Code, does not arise for consideration because RICS was not a small business employer (section 388(2)(a) of the FW Act). The two central issues determined by this decision are the requirements of section 385(b) & (d) of the FW Act.

Relevant facts and findings on contested facts

The Royal Institution of Charted Surveyors is a not-for-profit member organisation that is headquartered in the United Kingdom.[2] It has approximately 686 employees across 19 countries.[3] At the time of Mr Siriphone’s dismissal, RICS had 15 employees working from its office in Sydney, Australia.

Liz Gemmell is employed by RICS as an Event Manager in the Sydney Office.[4] Three Event Specialists reported to Ms Gemmell. They were based in Hong Kong, Singapore and China respectively.[5] At the start of 2024, Ms Gemmell informed RICS that she was pregnant and would take a period of parental leave.[6] RICS decided that Ms Gemmell’s absence would be covered by appointing the Hong Kong based Event Specialist, Ruby Lee, to act up as the Event Manager and appoint an Event Specialist for a fixed term period of 12 months working from the Sydney Office.[7] That Event Specialist was essentially to perform Ms Lee’s substantive role (albeit it from a different location) while she acted up as the Event Manager.[8]

In about May 2024, Mr Siriphone saw the Event Specialist role advertised on LinkedIn.[9] The role was advertised as a 12 month fixed term contract.[10] Mr Siriphone had a telephone conversation with Ms Gemmell about the role. Mr Siriphone gave evidence and was cross-examined about this telephone conversation. RICS did not call Ms Gemmell as a witness. That is despite Ms Gemmell being currently employed by RICS and likely working from the Sydney office on the day of the hearing. Ms Blaney gave hearsay evidence about the telephone conversation between Mr Siriphone and Ms Gemmell. To the extent that there is any difference between Mr Siriphone‘s evidence about this telephone conversation and Ms Blaney’s hearsay evidence about this telephone conversation, I prefer Mr Siriphone’s evidence. In that telephone conversation, Ms Gemmell told Mr Siriphone that the advertised role was because of her pregnancy and that she was due to return to work from maternity leave in March 2025.[11]

After applying and being interviewed, Mr Siriphone commenced employment with RICS in the role of Event Specialist on 22 July 2024. Mr Siriphone’s contract of employment[12] (Contract) had a commencement date of 22 July 2024 and an end date of 22 July 2025.[13] Clause 26.1 of the Contract provided Mr Siriphone and RICS with the right to terminate employment by giving a written notice period of six weeks.[14] Mr Siriphone worked from the Sydney office. In very summary terms, Mr Siriphone was responsible for coordinating and organising events for RICS. RICS accept that Mr Siriphone performed well in the role.[15]

On approximately 4 March 2025, Ms Gemmell returned to work from parental leave. Ms Gemmell returned to her role as the Event Manager. Consequently, Ms Lee ceased to act as the Event Manager and returned to her substantive role as an Event Specialist.

On 20 March 2025, Mr Siriphone was sent an electronic invite to a meeting scheduled for 21 March 2025.[16] The invitation was entitled "Invite to consultation meeting”.[17]

On 21 March 2025, Mr Siriphone attended a meeting with Sarah Littlejohn and Emily Cottenham. Ms Littlejohn is a senior manager employed by RICS. Ms Cottenham is employed as a Human Resources Business Partner. At the meeting, Mr Siriphone was informed by Ms Littlejohn and Ms Cottenham that his employment would be terminated due to redundancy. It was explained that the termination was due to Ms Gemmell returning to work from parental leave. In answer to some questions that I asked at the hearing, Ms Blaney accepted that RICS had made the decision to dismiss Mr Siriphone prior to this meeting. I accept Mr Siriphone’s evidence that there was no discussion at this meeting about other available positions either in Australia or elsewhere, and / or any other options to redeploy Mr Siriphone. I also accept Mr Siriphone's evidence that he was not invited to bring a support person to this meeting. I do not accept that Mr Siriphone said during this meeting that he was not surprised by the decision. Mr Siriphone gave evidence at the hearing about this meeting and was cross-examined. RICS did not call either Ms Littlejohn or Ms Cottenham as a witness. Rather, reliance was placed on hearsay evidence of this meeting given by Ms Blaney.[18] The effect of Mr Siriphone‘s evidence was that he did not say that he was not surprised by the decision at this meeting. I prefer Mr Siriphone‘s evidence concerning what was said at this meeting over Ms Blaney’s hearsay evidence. I also do not accept that around the time of Mr Siriphone's dismissal that he said to Ms Gemmell that he expected to be dismissed on her return from parental leave. Ms Blaney put this to Mr Siriphone in cross-examination. Mr Siriphone denied that he said words to that effect. I accept Mr Siriphone’s evidence. My findings that Mr Siriphone did not make either of those statements is consistent with the totality of Mr Siriphone's evidence. The totality of Mr Siriphone’s evidence establishes that he had expectation that his employment would continue up until the expiry of the fixed term on 22 July 2025, notwithstanding his knowledge that Ms Gemmell would return to work in March 2025. In particular, Mr Siriphone gave evidence at the hearing that prior to applying for the role that he was not told by Ms Gemmell or anyone else at RICS that his employment would not continue after March 2025. This is also consistent with the advertisement for the role[19] and the Contract[20], which both clearly state that the role was for a period of 12 months.

On 24 March 2025, Mr Siriphone sent an email to a RICS generic HR email address.[21] In the email, Mr Siriphone said that he had been told at the meeting held on 21 March 2025 that his employment would be terminated by reason of redundancy because ”the employee I was covering in the region has returned from maternity leave, subsequently cutting my fixed term contract short, though the role still exists”. Mr Siriphone said that he had yet to receive a termination letter or payment schedule, and that his last day at work was scheduled for Friday 28 March 2025. Finally, Mr Siriphone stated that he believed that RICS were contractually obligated to pay the remainder of his fixed term period.

On 24 March 2025, Ms Blaney sent a reply email to Mr Siriphone, which was copied to Ms Cottenham.[22] The relevant part of that email is reproduced below:

Emily has kept us fully up to date with your situation, and the formal letter confirming your termination will be sent shortly.
As the person whose maternity created the fixed term role you are in has returned, the business no longer has a need to cover the maternity absence. This is what has triggered the redundancy conversation.
In clause 17 of your contract, it states that your notice period is 6 weeks, and in clause 26 it confirms that the company may terminate your contract at any time by proving (sic) the period of notice in writing. This notice may be paid in lieu rather than requiring you to work.

There is no requirement for us to pay until the end of the contract, as there is a clear business rational to why the contract is being terminated early.

On approximately 25 March 2025, Mr Siriphone received a letter entitled "Termination of your employment by reason of redundancy”.[23] The second paragraph of the letter is reproduced below:

The individual whose maternity leave resulted in the requirement of your fixed term position returning to work means that your role is no longer needed. Regrettably this means your employment will terminate. This decision is not a reflection on your performance. Your employment will end on the 31^st March 2025, and your contract confirms that your notice period is 6 weeks.

Mr Siriphone performed work for RICS up until 31 March 2025. Mr Siriphone’s dismissal took effect on 31 March 2025. That was approximately 16 weeks before the expiry of his fixed term contract.[24] Mr Siriphone was paid six weeks payment in lieu of notice, which was a gross amount of $11,076.92.[25]

Genuine redundancy objection

The meaning of genuine redundancy is defined at section 389 of the FW Act. Section 389 of the FW Act is reproduced below:

Meaning of genuine redundancy

(1) A person's dismissal was a case of genuine redundancy if:
(a) the person's 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.

(2) A person's dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:
(a)the employer's enterprise; or

(b)the enterprise of an associated entity of the employer.

Section 389 of the FW Act is clear.[26] In order for Mr Siriphone’s dismissal to be a genuine redundancy, each of the three requirements of section 389 must be satisfied. The three requirements of section 389 are considered below.

Whether RICS no longer required Mr Siriphone’s job to be performed by anyone because of changes in the operational requirements of RICS’s enterprise: Section 389(1)(a)

The first requirement of section 389 is section 389(1)(a). There are two parts to section 389(1)(a). The first part is whether the person’s employer no longer required the person’s job to be performed by anyone. The second part only arises for consideration if the first part is satisfied. The second part is that job is no longer required to be performed by anyone because of changes in the operational requirements of the employer’s enterprise. That is, the second part is concerned with the reason/s for the job being no longer required. Both parts of section 389(1)(a) must be satisfied.

The first part of the section 389(1)(a) was considered by a Full Bench of the Commission in Ulan Coal Mine Limited v Henry Jon Howarth and others[2010] FWAFB 3488 (Ulan). The Full Bench in Ulan observed that section 389(1)(a) refers to a person’s “job”.[27] The Full Bench went on to distinguish the person’s job from the duties performed by the person.[28] A job involves a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employees’ organisation, to a particular employee.[29] The effect of the decision of the Full Bench in UIan is that the first part of section 389(1)(a) must be approached by answering whether RICS no longer required Mr Siriphone’s job - as so defined - to be performed by anyone. It is worth observing that the Full Bench in UIan did not consider the second part of section 389(1)(a). It is evident that the Full Bench was concerned only with the first part of section 389(1)(a) and proceeded on the basis that the jobs were no longer required because of changes in the operational requirements of the employer’s enterprise.[30]

Mr Siriphone contended that the requirement of section 389(1)(a) was not satisfied. In summary terms, Mr Siriphone contended that his “role” continued to be performed by Ms Lee and that it had not been eliminated.[31] Mr Siriphone contended that his “role“ had been reassigned to Ms Lee. RICS contended that the requirement of section 389(1)(a) was satisfied. In summary terms, RICS contended that Ms Gemmell‘s return to work from parental leave into her position as Event Manager resulted in Ms Lee returning to her substantive position as Event Specialist.[32] At the hearing, Ms Blaney explained that RICS required a team of four comprised of three Event Specialists and one Event Manager across four locations, namely, Australia, Hong Kong, Singapore and China. Ms Blaney explained that RICS required one such role in each of those locations. Ms Gemmell’s return to work meant that there were five employees in that team performing those roles, and two of the five (Ms Gemmell and Mr Siriphone) were located in Australia.

On application of Ulan, the enquiry posed by the first part of section 389(1)(a) is to be determined by reference to Mr Siriphone’s “job”. As such, it is irrelevant whether the duties that Mr Siriphone performed in coordinating and organising events continued to be performed by Ms Lee or Ms Gemmell or anyone else. On the material before me, I am satisfied that Ms Gemmell’s return to work from parental leave resulted in a situation where there were four Event Specialists in the team in circumstances where RICS had a need for three Event Specialists in the team. I am further satisfied that RICS had a need for only one Event Manager or Event Specialist in Australia. The job performed by Mr Siriphone was Event Specialist. Moreover, Mr Siriphone was one of the two employees (along with Ms Gemmell) in Australia. Clearly, there was one more Event Specialist in the team than was required and one more Australian based member of the team than was required. For those reasons, I am satisfied that RICS no longer required Mr Siriphone’s job to be performed by anyone.

The second part of section 389(1)(a) requires that Mr Siriphone’s job was no longer required because of changes in the operational requirements of RICS. The FW Act does not define the term “operational requirements”. Operational requirements has been held to be a broad term that permits consideration of many matters including, but not limited to, past and present performance of the business, the state of the market in which the business operates, steps that may be taken to improve the efficiency of the business by installing new processes, equipment or skills, or by arranging labour to be used more productively, and the application of good management to the business.[33] The Explanatory Memorandum to the FW Act[34] gave some possible examples of a change in the operational requirements of an enterprise. The examples found in the Explanatory Memorandum are:

· a machine is now available to do the job performed by the employee;

· the employer‘s business is experiencing a downturn and therefore the employer only needs three people to do a particular task or duty instead of five;

· or the employer is restructuring their business to improve efficiency and the tasks done by a particular employee are distributed between several other employees and therefore the person‘s job no longer exists.

RICS contended that Mr Siriphone’s job was no longer required because Ms Gemmell’s return to work from parental leave created one more employee in the team than RICS determined was necessary.[35] I am satisfied that is the reason for Mr Siriphone’s job being no longer required. However, I am not satisfied that reason can be characterised as being “because of changes in the operational requirements of RICS”. It is not the case that Mr Siriphone’s job was no longer required because of the past and present performance of RICS, the state of the market in which RICS operates, steps taken by RICS to improve its efficiency of the business by installing new processes, equipment or skills, or by arranging labour to be used more productively, or for any of the examples referred to in the Explanatory Memorandum. That observation should not be misunderstood as suggesting that those reasons are the only reasons that can characterised as being because of changes in operational requirements. Those reasons are non-exhaustive examples of reasons that can be characterised as being because of changes in operational requirements.

Furthermore, I do not consider that the reason can be properly characterised as the application of good management. To the contrary, as discussed below, Mr Siriphone’s job was no longer required because of deficient management practices associated with Ms Gemmell’s leave and subsequent return to work.

Importantly, the structure of the team remained unchanged by Ms Gemmell’s parental leave. That is, prior to Ms Gemmell’s period of parental leave, there were four team members comprised of three Event Specialists supervised by an Event Manager. There was one team member based in Australia, Hong Kong, Singapore and China respectively. That structure was unchanged during Ms Gemmell’s period of parental leave. That structure was unchanged following Mr Siriphone’s dismissal. Two points arise from those facts. The first point is that there was no change in the operational requirements of RICS. The required number of team members, the location where such team members were to work and the management structure of the team were unchanged before Ms Gemmell’s period of leave, during her period of leave and after Mr Siriphone’s dismissal. The fact alone leads me to find that the reason for Mr Siriphone’s job being no longer required cannot be characterised as being because of changes in the operational requirements of RICS. The second point is that an excess of one job in the team was inevitable unless Ms Gemmell returned to work at around the same time that the person employed to cover her absence (Mr Siriphone) ceased employment with RICS.

In the Form F3 – Employer Response to Mr Siriphone’s unfair dismissal application, RICS stated that Ms Gemmell returned to work earlier than she had previously planned.[36] In giving evidence at the hearing, Ms Blaney said Ms Gemmell had not completed a leave form or the like, which indicated when her return date from leave would be. However, the effect of Ms Blaney’s witness statement and oral evidence at the hearing was that Ms Gemmell had estimated to RICS that she would return to work in around March 2025.[37] The comments in the Form F3 to the effect that Ms Gemmell returned to work earlier than previously planned is inconsistent with Ms Blaney’s evidence. I reject any suggestion that Ms Gemmell returned to work earlier than previously planned. I also accept Mr Siriphone’s evidence that immediately before applying for the job that Ms Gemmell told him that she was scheduled to return to work in March 2025.[38] Notwithstanding that Mr Siriphone and Ms Gemmell had previously worked together (at RICS)[39], I find it difficult to accept that Ms Gemmell would tell Mr Siriphone in June 2024 that she was scheduled to return to work in March 2025, but not have told her employer, RICS. Based primarily on Ms Blaney’s evidence, I find that RICS well understood that Ms Gemmell was returning to work from parental leave in March 2025.

As recorded above, Ms Gemmell returned to work from parental leave on approximately 4 March 2025.

There was a clear misalignment between Ms Gemmell return to work in March 2025 and the end date specified in Mr Siriphone’s Contract (22 July 2025). It was this misalignment, and not any changes in the operational requirements, that resulted in the excess of one job in the team. In her witness statement, Ms Blaney stated:

I enquired with Ms Gemmell to why she believed the advert had been for a 12 month contract and she confirmed that the role should have gone live earlier, however there had been a delay with the approval from Finance.[40]

Mr Siriphone cross-examined Ms Blaney about this delay at the hearing. Ms Blaney repeated her understanding based upon a conversation that she had with Ms Gemmell that Finance took longer than had been hoped to sign off on approving the Event Specialist role that was filled by Mr Siriphone. Ms Blaney further explained that RICS have a very arduous sign off process for approving any jobs.

I accept Ms Blaney’s evidence that there was a delay caused by the Finance Department in approving the Event Specialist role that was filled by Mr Siriphone. It was this delay that created an inevitable excess job in the team in circumstances where RICS understood that Ms Gemmell was returning to work in March 2025, which was some three to four months before the end date specified in Mr Siriphone’s Contract. Without the delay it appears that Mr Siriphone would have ceased employment at or around the same time that Ms Gemmell returned to work from parental leave. Without the delay, an excess job in the team was unlikely.

The second part of the requirement in section 389(1)(a) requires a finding to be made as to the reason for the person’s job being no longer required, and then an exercise in characterisation as to whether that reason is because of changes in operational requirements. I find that the reason for Mr Siriphone’s job being no longer required was the delay in approving the Event Specialist role filled by Mr Siriphone. Mr Siriphone’s job was no longer required in circumstances where I have found there was no change in the operational requirements of RICS. I do not characterise the reason, which occurred in those circumstances, as being because of changes in operational requirements.

For those reasons, I am not satisfied that the requirement of section 389(1)(a) of the FW Act has been met. Accordingly, I find that Mr Siriphone’s dismissal was not a genuine redundancy within the meaning of section 389 of the FW Act.

Whether RICS has complied with any obligation in a modern award or enterprise agreement that applied to consult about the redundancy: Section 389(1)(b)

Neither party submitted that an enterprise agreement applied.

Mr Siriphone submitted that the Miscellaneous Award 2020 applied to his employment with RICS.[41] RICS submitted that a modern award, including the Miscellaneous Award 2020, did not apply.

On application of the settled principles used to interpret an award,[42] I am not satisfied that Mr Siriphone was covered by the Miscellaneous Award 2020. The coverage term of the Miscellaneous Award 2020 is found at clause 4. To be covered, an employee must be within one of the classifications listed in clause 15 of the Miscellaneous Award 2020 (clause 4.1). There are four classification levels – Level 1, Level 2, Level 3 and Level 4. Clause 12 of the Miscellaneous Award 2020 provides a description of each classification level. It is evident from clause 12 that a “professional employee” is not covered by one of the classifications in the award. That is because the Level 4 classification (which is the highest classification) refers to an employee having advanced trade qualifications or is a sub-professional. The Miscellaneous Award 2020 does not contain a definition of a sub-professional. The Miscellaneous Award 2020 does not contain an exhaustive definition of professional employee. However, clause 4.2 of the Miscellaneous Award 2020 expressly states that managerial employees and professional employees are not covered by the award. Clause 4.2 gives some non-exhaustive examples of managerial employees and professional employees. The examples set out in clause 4.2 are:

accountants and finance, marketing, legal, human resources, public relations and information technology specialists.

Mr Siriphone was not employed by RICS in any of those roles. In answer to a question from me at the hearing, Mr Siriphone agreed that he was an events professional and gave some detail about the duties that he performed for RICS. Based on the material before me, I am satisfied that Mr Siriphone was a professional employee. Accordingly, I find that Mr Siriphone was not covered by the Miscellaneous Award 2020, and that award did not apply to his employment with RICS.

I am also satisfied that no other modern award applied to Mr Siriphone’s employment with RICS.

The effect of my findings that no modern award or enterprise agreement applied to the employment is that RICS was under no obligation to consult that is derived from a modern award or enterprise agreement. On that basis, I am satisfied that the requirement of section 389(1)(b) of the FW Act has been met.

Whether it would have been reasonable in all the circumstances for Mr Siriphone to be redeployed within RICS’s enterprise or the enterprise of an associated entity of RICS: Section 389(2)

A Full Bench of the Commission in Pykett explained that “for the purposes of s.389(2) the Commission must find, on the balance of probabilities, that there was a job or a position or other work within the employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employee. There must also be an appropriate evidentiary basis for such a finding.”[43] A Full Court of the Federal Court of Australia in Helensburgh Coal[44] was concerned with whether redeployment would have been reasonable in all the circumstances and held:

[66] It is for the FWC, as a specialist statutory tribunal, to determine whether redeployment would have been reasonable in any given case. Within the wide bounds of what is legally reasonable, that assessment is to be made having regard to such matters as the FWC thinks are apt to assist it. If, in a given case, there is reason to think that an employer could have taken steps that would have enabled redeployment in preference to dismissal, that possibility may fairly be brought to bear upon the FWC’s assessment of what “would have been reasonable in all [of] the circumstances”.

The High Court of Australia dismissed an appeal from the decision of the Full Court of the Federal Court of Australia in Helensburgh Coal.[45]

An earlier Full Bench of the Commission in Honeysett[46] provided some guidance of a number of matters that may be relevant in determining whether redeployment within the employer’s enterprise or the enterprise of an associated entity would have been reasonable at the time of dismissal. Those matters are non-exhaustive, but include the nature of any available position, the qualifications required to perform the job, the employee’s skills, qualifications and experience, the location of the job in relation to the employee’s residence and the remuneration which is offered.

In his written material filed and served in advance of the hearing (in accordance with my directions), Mr Siriphone did not contest the genuine redundancy objection by making an argument under section 389(2) of the FW Act. In his written material, Mr Siriphone said no more than “redeployment was not explored” and not “offered”.[47] In its written material filed and served in advance of the hearing (in accordance with my directions), RICS stated that at the time of Mr Siriphone‘s dismissal all 14 of the Australian based roles were occupied and that there were no vacancies and that was not envisaged to change.[48] In giving evidence at the hearing, Ms Blaney confirmed that there were no vacant positions based in Australia at the time of Mr Siriphone’s dismissal. There was no challenge to those matters from Mr Siriphone at the hearing. I accept Ms Blaney's evidence and am unable to identify a job or position or other work within RICS’s enterprise (or that of an associated entity) that is based in Australia to which it would have been reasonable in all the circumstances to redeploy Mr Siriphone.

Mr Siriphone’s cross-examination of Ms Blaney at the hearing revealed that at the time of Mr Siriphone’s dismissal there was a vacant Event Specialist role. That role was based in Dubai. Mr Siriphone’s closing arguments at the hearing were focused on the fact that the Event Specialist role in Dubai was not discussed with him prior to his dismissal. That may be relevant when considering the merits of the dismissal. It is irrelevant for determining the enquiry posed by section 389(2). As explained above, that requires an assessment of the reasonableness in all circumstances for Mr Siriphone of being redeployed to the Event Specialist role in Dubai. Mr Siriphone suggested that the Event Specialist role in Dubai could be done remotely (presumably from Sydney). The basis for this suggestion appeared to be that in his role, Mr Siriphone coordinated and organised events for RICS in New Zealand (presumably remotely from Sydney) as well as Australia. Ms Blaney gave clear and compelling evidence that explained why the Event Specialist role in Dubai could not be done remotely. In very summary terms, Ms Blaney explained that the expectation of the membership of RICS was that face to face events were expected, and that requires the Event Specialist to be based in Dubai. Ms Blaney explained that the demand of events in New Zealand did not justify an Event Specialist based in New Zealand, and that the New Zealand based events could be coordinated and organised remotely from the Australian based member of the team. I accept Ms Blaney’s evidence on this point and find that the Event Specialist role in Dubai that was vacant at the time of Mr Siriphone’s dismissal required the Event Specialist to live and work in Dubai. It could not be done remotely from Sydney. At the hearing, I asked Mr Siriphone whether he would have been prepared to relocate to Dubai to take the vacant Event Specialist role. Mr Siriphone said that he would not.

Consistent with the authorities discussed above, I have identified that there was a job or position or other work within RICS’s enterprise (or an associated entity) that it may have been reasonable in all the circumstances to redeploy Mr Siriphone. That being, the Event Specialist role in Dubai, which was vacant at the time of Mr Siriphone's dismissal. I have found that role would have required Mr Siriphone to relocate to Dubai. In circumstances where Mr Siriphone was not prepared to relocate to Dubai, I am not satisfied that it would have been reasonable in all the circumstances to redeploy him to that role.

For those reasons, I am satisfied that it would not have been reasonable in all the circumstances for Mr Siriphone to be redeployed within RICS’s enterprise or an associated entity.

Conclusion on genuine redundancy objection

Mr Siriphone’s dismissal was not a genuine redundancy within the meaning of 389 of the FW Act. That is because the requirement of section 389(1)(a) of the FW Act was not satisfied. As such, I dismiss the genuine redundancy objection raised by RICS. In accordance with section 396(d) of the FW Act, I will now consider the merits of the application.

Merits

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.
In an Appeal by B, C and D,[49] a Full Bench of the Commission discussed the phrase "harsh, unjust or unreasonable”. The Full Bench held at [53]:

A determination as to whether a dismissal was harsh, unjust or unreasonable involves the application of a broad discretionary standard. The discretion is nevertheless one that must be exercised judicially, that is, in accordance with applicable legal principles...The classic statement of principle comes from the judgement of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 465:

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

The Full Bench continued at [57]:

In Byrne v Australian Airlines (1995) 185 CLR 410 at 467 McHugh and Gummow JJ endorsed the observations of Sheppard and Heerey JJ in Bostik (Aust) Pty Ltd v Gorgevski (No 1) [1992] FCA 209; (1992) 36 FCR 20 at 28 in relation to the phrase “harsh, unjust or unreasonable”:

“These are ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated. We do not think any redefinition or paraphrase of the expression is desirable. We agree with the learned trial judge’s view that a court must decide whether the decision of the employer to dismiss was, viewed objectively, harsh, unjust or unreasonable. Relevant to this are the circumstances which led to the decision to dismiss and also the effect of that decision on the employer. Any harsh effect on the individual employee is clearly relevant but of course not conclusive. Other matters have to be considered such as the gravity of the employee’s misconduct.”

Each of the matters in section 387 of the FW Act must be considered and treated as a matter of significance in the decision making process.[50] However, the Commission is only required to consider those matters insofar as they are relevant to the factual circumstances of the particular case.[51] The weight given to each such relevant matter is a matter for the Commission in coming to an overall conclusion as to whether the dismissal was harsh, unjust or unreasonable.[52]

The matters set out in section 387 of the FW Act are considered below.

Whether there was a valid reason for the dismissal related to Mr Siriphone’s capacity or conduct (including its effect on the safety and welfare of other employees): Section 387(a)

Mr Siriphone’s dismissal was not related to his capacity[53] or conduct. This matter is not relevant to the circumstances of this application.

Whether Mr Siriphone was notified of that reason: Section 387(b)

Proper consideration of section 387(b) requires a finding to be made as to whether Mr Siriphone has been notified of “that reason” – that is, the reason for dismissal relating to the capacity or conduct of the applicant found to be valid under section 387(a) – prior to the decision to dismiss being made.[54] Mr Siriphone’s dismissal was not related to his capacity or conduct. I have not made a finding that there was a valid reason for Mr Siriphone's dismissal related to his capacity or conduct. Consequently, this matter is not relevant to the circumstances of this application.

Whether Mr Siriphone was given an opportunity to respond to any reason related to his capacity or conduct: Section 387(c)

Mr Siriphone’s dismissal was not related to his capacity or conduct. Consequently, this matter is not relevant to the circumstances of this application.

Any unreasonable refusal by RICS to allow Mr Siriphone to have a support person to assist at any discussions relating to the dismissal: Section 387(d)

This matter concerns any unreasonable refusal by the employer to allow the dismissed employee to engage the assistance of a support person. It does not impose a positive obligation on the employer to suggest that the employee may wish to engage the assistance of a support person.

I have found that Mr Siriphone was not invited to bring a support person along to the meeting held on 21 March 2025, which was when he was advised of his dismissal. However, that does not establish an unreasonable refusal by RICS to allow Mr Siriphone to engage the assistance of a support person.

There was no unreasonable refusal by RICS to allow Mr Siriphone to have a support person to assist at any discussions relating to the dismissal. This matter weighs against a conclusion that Mr Siriphone’s dismissal was harsh, unjust or unreasonable. However, as explained below, it is a matter that I give very little weight to.

If the dismissal related to unsatisfactory performance by Mr Siriphone – whether Mr Siriphone had been warned about that unsatisfactory performance before the dismissal: Section 387(e)

Mr Siriphone’s dismissal did not relate to unsatisfactory performance. This matter is not relevant to the circumstances of this application.

The degree to which the size of RICS’s enterprise would be likely to impact on the procedures followed in effecting the dismissal: Section 387(f)

RICS is not a small enterprise. It operates in 19 countries and has approximately 686 employees. The procedures to be followed in effecting dismissal should include very basic principles of procedural fairness.

As explained below, I find that RICS failed to afford basic procedural fairness in effecting Mr Siriphone’s dismissal. The size of RICS’s enterprise is a matter that I have taken into account in considering the procedures followed in effecting Mr Siriphone's dismissal and my ultimate conclusion as to whether Mr Siriphone’s dismissal was harsh, unjust or unreasonable.

The degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would likely to impact on the procedures followed in effecting Mr Siriphone’s dismissal: Section 387(g)

In responding to Mr Siriphone’s application, RICS said that it does not have a human resources specialist or expert in Australia, however, the United Kingdom based human resources team liaised with local lawyers about Mr Siriphone's dismissal.[55] I accept that to be the case.

I consider that RICS had dedicated human resource management specialists or expertise. The dedicated human resource specialists were the UK based team (other than one that was based in India) who had the benefit of advice from Australian based lawyers. This is a matter that I have considered in considering the procedures followed in effecting Mr Siriphone's dismissal and my conclusion as to whether Mr Siriphone’s dismissal was harsh, unjust or unreasonable.

Any other relevant matters that the FWC considers relevant: Section 387(h)

There are several matters that require consideration pursuant to section 387(h).

One, RICS rely upon clause 26.1 of the Contract, which provided RICS (and Mr Siriphone) with the right to terminate employment by giving a written notice period of six weeks.[56] Moreover, RICS submitted that it paid six weeks notice to Mr Siriphone on his dismissal rather than make him work the notice period to allow him to look for another job in that period. It appears that RICS relies upon either and / or both of those points in opposing Mr Siriphone’s application.[57]

The existence of a valid reason to dismiss is not assessed by reference to a legal right to terminate a contract of employment.[58] That principle is equally applicable in considering the right that RICS had under the Contract to terminate Mr Siriphone’s employment under section 387(h). The contractual right that RICS had to terminate Mr Siriphone's employment on giving six weeks (whether he was paid the notice or was required to work the notice period) adds little in coming to an overall conclusion whether the dismissal was harsh, unjust or unreasonable. I reject the argument that the right that RICS had under the Contract to terminate Mr Siriphone’s employment on giving six weeks notice is a matter that supports an ultimate conclusion that Mr Siriphone’s dismissal was not harsh, unjust or unreasonable.

Two, I have found that Mr Siriphone had an expectation that his employment would continue up until the expiry of his fixed term on 22 July 2025. Based upon the advertisement for the role and the Contract, which both clearly state that the role was for a period of 12 months, and that Mr Siriphone was not told by Ms Gemmell or anyone else at RICS that his employment would not continue after March 2025, I find that Mr Siriphone’s expectation was reasonably held. I have also found that Mr Siriphone’s employment ended 16 weeks earlier than he expected because there was a delay caused by the Finance Department in approving the Event Specialist role that was filled by Mr Siriphone. That is, Mr Siriphone’s lost his job much earlier than he had expected and suffered financial loss through no fault of his own. The fault rests with RICS. This is matter that I have considered under section 387(h) of the FW Act. It is a matter that strongly weighs in favour of a conclusion that Mr Siriphone’s dismissal was harsh, unjust or unreasonable.

Three, RICS denied Mr Siriphone basic procedural fairness in effecting the dismissal. RICS should have notified Mr Siriphone that it was considering dismissing him. That notification should have occurred before the decision was made to dismiss him. RICS should have provided Mr Siriphone with a genuine opportunity to respond before the decision to dismiss was made. That did not occur. Rather, as explained above, Mr Siriphone attended the meeting with Ms Littlejohn and Ms Cottenham on 21 March 2025 where he was told that his employment would be terminated due to redundancy. Ms Blaney accepted that RICS had made the decision to dismiss Mr Siriphone prior to this meeting. Prior to this meeting held on 21 March 2025, Mr Siriphone had not been notified that RICS was considering dismissing him and he was not given any opportunity to respond to that decision.

The denial of procedural fairness occurred in circumstances where Mr Siriphone was dismissed by reason of redundancy. Redeployment may be a topic of discussion raised by an employee that is notified by their employer that it is considering making them redundant and terminating their employment. The denial of procedural fairness by RICS deprived Mr Siriphone of an opportunity to raise redeployment as an alternative to his dismissal. It is unnecessary to demonstrate that the outcome may have been different to treat the denial of procedural fairness as a significant matter.[59] The point is that RICS should have afforded Mr Siriphone procedural fairness in effecting the dismissal. I regard this as a significant matter, especially because it deprived Mr Siriphone of an opportunity to explore with RICS the option of redeployment as an alternative to dismissal. For the reasons explained above, I have considered the issue of procedural fairness under section 387(h), and not section 387(b) & (c). It is a matter that weighs in favour of a conclusion that Mr Siriphone’s dismissal was harsh, unjust or unreasonable. In reaching this conclusion. I have taken into account the matters specified at section 387(f) & (g) of the FW Act.

Four, and related to the above, is that RICS did not make a genuine attempt to redeploy before deciding to dismiss Mr Siriphone. There was no discussion at the meeting held on 21 March 2025 about other available positions either in Australia or elsewhere, and / or any other options to redeploy Mr Siriphone. It would appear from Ms Blaney’s submissions at the hearing that all RICS did was send out some general all staff communications about any vacancies across the organisation at the time of Mr Siriphone’s dismissal. The sending of such all staff emails does not amount to a genuine attempt to redeploy. As a general proposition, it would appear difficult for an employer to succeed on a merits argument that a dismissal is not harsh, unjust or unreasonable unless it has genuinely attempted to redeploy before deciding to dismiss an employee/s by reason of redundancy. I have considered the absence of any such genuine attempt to redeploy under section 387(h) of the FW Act. It is a matter that weighs in favour of a conclusion that Mr Siriphone’s dismissal was harsh, unjust or unreasonable.

Overall conclusion whether Mr Siriphone’s dismissal was harsh, unjust or unreasonable

I have taken into account and made findings with respect to each of the matters in section 387 that are relevant to the circumstances of this application.

I have found that there is one such matter that weighs against a conclusion that Mr Siriphone’s dismissal was harsh, unjust or unreasonable. That being, there was no unreasonable refusal by RICS to allow Mr Siriphone to have a support person to assist at any discussions relating to the dismissal. I give that little weight because the denial of procedural fairness significantly outweighs the fact that there was no such unreasonable refusal.

I have found that there are three such matters, which I have considered under section 387(h), that weigh in favour of a conclusion that Mr Siriphone’s dismissal was harsh, unjust or unreasonable. Those matters are: (1) That Mr Siriphone’s lost his job much earlier than he had expected and suffered financial loss through no fault of his own. The fault rests with RICS, (2) denial of procedural fairness, and (3) RICS did not make a genuine attempt to redeploy before dismissing Mr Siriphone. I have given the first such matter significant weight because that plainly demonstrates that dismissal was harsh. I have given some, but not significant, weight to the second and third such matter. Those matter point to serious deficiencies with the procedures followed to effect Mr Siriphone’s dismissal.

Having considered and weighed each of the relevant matters in section 387 of the FW Act both individually and collectively, I am satisfied that Mr Siriphone’s dismissal was harsh, unjust or unreasonable. Consequently, and consistent with my findings made above with respect to section 385(a), (c) & (d) of the FW Act, I find that Mr Siriphone was unfairly dismissed. My consideration as to remedy is set out below.

Remedy

The question whether to order a remedy in a case where a dismissal has been found to unfair is a discretionary one.[60]

Mr Siriphone does not seek reinstatement. I am satisfied that reinstatement is inappropriate (section 390(3)(a)).

The effect of section 390(3)(b) of the FW Act is that the Commission must not order the payment of compensation unless satisfied that an order for the payment of compensation is appropriate in all the circumstances of the case. A Full Bench of the Commission has found that given the statutory purpose of the compensation power, the issue of financial loss is a centrally relevant matter that the Commission should consider in determining whether an order for the payment of compensation is appropriate in all the circumstances of the case.[61] Mr Siriphone has suffered financial loss arising from his unfair dismissal. In all the circumstances, I consider that an order for the payment of compensation is appropriate.

Section 392(2) of the FW Act provides that in determining an amount of compensation, the Commission must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer's enterprise; and

(b) the length of the person's service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

A Full Bench of the Commission in Double N Equipment Hire Pty t/a A1 Distributions v Alan Humphries[62] (Double N Equipment v Humphries) explained how an amount of compensation ordered under section 392 of the FW Act is to be determined. The Full Bench held (citations omitted):

[16] The well-established approach to the assessment of compensation under s.392 of the FW Act, taking into account the matters specified in s.392(2), is to apply the “Sprigg formula” derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul Licensed Festival Supermarket. This approach was articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages. Under that approach, the first step to be taken in assessing compensation is to consider s.392(2)(c) - that is, to determine what the applicant would have received, or would have been likely to receive, if the person had not been dismissed...
[17] The identification of this starting point amount “necessarily involves assessments as to future events that will often be problematic”. Once this first step has been undertaken, various adjustments are made in accordance with s.392 and the formula for matters including monies earned since dismissal, contingencies, any reduction on account of the employee’s misconduct and the application of the cap of six months’ pay. This approach is however subject to the overarching requirement to ensure that the level of compensation is in an amount that is considered appropriate having regard to all the circumstances of the case.

The matters set out in section 392(2) of the FW Act are considered below.

The effect of the order on the viability of RICS’s enterprise: Section 392(a)

RICS did not present any evidence about the effect of any order on the viability of the organisation. Ms Blaney did not make a submission that there would be any effect on the viability of RICS if an order of compensation was to be made.

I am satisfied that that an order of compensation would have no effect on the viability of RICS. This is a matter that weighs in favour of there being no deduction in the amount of compensation.

The length of Mr Siriphone’s service with RICS: Section 392(b)

Mr Siriphone was employed by RICS for a period of approximately eight months. That is a short period of employment. In the circumstances of this application, I consider this to be a neutral matter in determining the amount of compensation.

The remuneration that Mr Siriphone would have received, or would have been likely to receive, if Mr Siriphone had not been dismissed: Section 392(c)

A Full Court of the Federal Court of Australia held: “In determining the remuneration that the employee would have received, or would have been likely to receive, the Commission is required to give its attention to an actual state of facts...In each case, it is necessary for the Commission to 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”.[63]

I find that if Mr Siriphone had not been unfairly dismissed, his employment with RICS would have likely continued up until 22 July 2025. That is at the expiry of his fixed term. I do not see there being any likelihood of employment continuing past 22 July 2025 because RICS only need one Event Specialist or Event Manager located in Australia and Mr Siriphone was engaged to cover the 12 month vacancy created by Ms Gemmell’s period of parental leave. I accept that there are no other Australian based roles that Mr Siriphone could have been redeployed into.

Mr Siriphone was paid a gross weekly amount of $1,846.15 plus superannuation. The remuneration that Mr Siriphone would have received, or would have been likely to receive, if employment had continued until 22 July 2025 is a gross amount of $29,538.40 plus superannuation. That amount is calculated by reference to an approximate period of 16 weeks between the date of Mr Siriphone’s dismissal and 22 July 2025.

The efforts of Mr Siriphone (if any) to mitigate the loss suffered because of his dismissal: Section 392(d)

Mr Siriphone explained the efforts that he has taken to mitigate his loss. That includes applying for approximately 175 jobs. Mr Siriphone has secured some work in the period, however he has still suffered financial loss.

I am satisfied that Mr Siriphone has made a genuine attempt to mitigate the loss. This is a matter that weighs in favour of there being no deduction in the amount of compensation.

The amount of any remuneration earned by Mr Siriphone from employment or other work during the period between the dismissal and the making of the order for compensation: Section 392(e)

Mr Siriphone obtained employment as a Conference Manager with another organisation in the period from 19 May 2025 until 13 June 2025. In that role, the gross remuneration received by Mr Siriphone was an amount of $9,018.40. Given the statutory purpose of an order for the payment of compensation is to compensate for loss, I am satisfied that it is appropriate to deduct a gross amount of $9,018.40 from the amount of compensation.

Throughout his period of employment with RICS, Mr Siriphone had another job. That was in the hospitality industry. Mr Siriphone took that second job out of financial necessity. Mr Siriphone has continued to work in that job since his dismissal. Given the statutory purpose of an order for the payment of compensation and the fact that Mr Siriphone worked in this second job throughout his period of employment with RICS, I am not satisfied that it is appropriate to deduct any earnings that Mr Siriphone received from this second job from the amount of compensation.

The amount of any income reasonably likely to be so earned by Mr Siriphone during the period between the making of the order for compensation and the actual compensation: Section 392(2)(f)

Mr Siriphone has ceased to perform work in the Conference Manager role discussed above. As such, there is no amount of income to be considered pursuant to section 392(f). In the circumstances of this application, I consider this to be a neutral matter in determining the amount of compensation.

Any other matters that the FWC considers relevant: Section 392(2)(g)

The parties did not identify any other such matters. I am unable to identify any other such matters.

Determination of the amount of compensation

In determining the amount of compensation, I apply the principles endorsed by the Full Bench of the Commission in Double N Equipment v Humphries. The Full Bench confirmed that the amount of compensation is to be determined by applying the “Sprigg formula”. The Full Bench confirmed that the “Sprigg formula” was not the only matter to be considered, but also the matters in section 392 needed to be considered along with the overarching requirement that the amount of compensation is appropriate having regard to all the circumstances of the case. The “Sprigg formula”[64] has four steps, which are:

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 of an applicant to mitigate his or her 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.

I have estimated that the remuneration Mr Siriphone would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost) was an amount of $29,538.40 plus superannuation. This is the first step in the “Sprigg formula”.

The amount of monies that Mr Siriphone has earned since his termination is an amount of $9,018.40. On termination of employment, Mr Siriphone was paid an amount of $11,076.92, which was six weeks payment in lieu of notice. I am satisfied that both amounts should be deducted from the amount of compensation to be ordered. Taking into account my findings made with respect to section 392(d) of the FW Act, I do not consider there should be any further deduction in the amount of compensation on account of the efforts of Mr Siriphone to mitigate his loss. The total amount of both amounts to be deducted is $20,095.32. The deduction of $20,095.32 from $29,538.40 (plus superannuation) leaves an amount of $9,443.08 plus superannuation. This is the second step in the “Sprigg formula”.

Contingencies only apply to the anticipated period of employment. The anticipated period of employment was known. It was a period of 16 weeks. I am not satisfied that a deduction should be made to the amount of compensation on account of contingencies. This is the third step in the “Sprigg formula”.

On application of steps 1 – 3 of the “Sprigg formula”, I determine that the amount of compensation is an amount of $9,443.08 plus superannuation. In terms of step 4 of the “Sprigg formula”, I have considered the impact of taxation and have elected to determine the amount as a gross amount plus superannuation and leave taxation for determination.

In determining that the amount of compensation is an amount of $9,443.08 plus superannuation by reference to the “Sprigg formula”, I have taken into account the matters specified at section 392(2)(c), (d) & (e). In taking into account the other matters specified at section 392(2), I have found that there should be no deduction under section 392(2)(a), that the matters specified at section 392(2)(b) & (f) are neutral, and that there are no matters to be considered under section 392(2)(g). Taking into account all of the matters specified at section 392(2), I am satisfied that a gross amount of compensation of $9,443.08 plus superannuation is appropriate in all the circumstances of this case.

I am not satisfied that any misconduct on Mr Siriphone’s part contributed to his dismissal. It follows that there is no need for a reduction to the amount of compensation under section 392(3) of the FW Act. Consistent with section 392(4) of the FW Act, the amount of compensation cannot and does not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt.

Given Mr Siriphone’s total amount of remuneration, the compensation cap within the meaning of section 392(5) of the FW Act is an amount of $48,000. The amount of compensation to be ordered is a gross amount of $9,443.08 plus superannuation. That amount does not exceed the compensation cap.

Having taken into account all of the matters in section 392(2), and the requirements of section 392(3) - (5) of the FW Act and after applying the “Sprigg formula”, I have determined that the amount of compensation to be ordered is a gross amount of $9,443.08 plus superannuation. I am satisfied that amount is appropriate having regard to all the circumstances of this case. I determine that the amount of compensation to be ordered is a gross amount of $9,443.08 plus superannuation.

Conclusion

I find that Mr Siriphone’s dismissal was not a genuine redundancy. I find that Mr Siriphone’s dismissal was harsh, unjust or unreasonable. Consequently, I find that Mr Siriphone was unfairly dismissed. I am satisfied that an order for the payment of compensation is appropriate in all the circumstances of this case. The amount of compensation to be ordered is a gross amount of $9,443.08 plus superannuation. An order will be issued separately to this decision.

COMMISSIONER

Appearances:

P. Siriphone, as the Applicant

E. Blaney, for the Respondent

Hearing details:

Sydney by Video using Microsoft Teams
2025
26 June

[1] Exhibit R2, Digital Hearing Book (DHB) page 114.

[2] Paragraph 4 of Exhibit R2, DHB, page 109.

[3] Paragraph 3, Exhibit R2, DHB page 109.

[4] Paragraph 7, Exhibit R2, DHB, page 109.

[5] Paragraph 7, Exhibit R2, page 109.

[6] Paragraph 6, Exhibit R2, DHB, page 109.

[7] Paragraph 8, Exhibit R2, DHB, page 109.

[8] Paragraph 8, Exhibit R2, DHB, page 109.

[9] Paragraph 2, Exhibit A1, DHB, page 14.

[10] Exhibit A1, DHB, pages 26 – 27.

[11] Paragraph 3, Exhibit

[12] Exhibit R2, DHB, pages 113 – 133.

[13] Clause 4 & Items 1 & 2 of the Contract, DHB page 113, 119.

[14] DHB, pages 114 & 127.

[15] Paragraph 17, Exhibit R2, DHB page 110.

[16] Paragraph 10 of Exhibit A1, DHB, page 15.

[17] DHB, page 58.

[18] Paragraph 30, Exhibit R1, DHB, page 111.

[19] DHB, pages 25 – 27.

[20] DHB, pages 113 – 133.

[21] Exhibit A1, DHB, pages 60 – 61.

[22] Exhibit A1, DHB, page 59.

[23] Exhibit A1, DHB, pages 51 – 52.

[24] Exhibit R2, DHB, page 113.

[25] Exhibit A1, DHB, page 53.

[26] Helensburgh Coal Pty Ltd v Mr Neil Bartley and Mr Jake Bennett and Others[2022] FWCFB 166 at [32] - [33].

[27] Ulan at [17].

[28] Ulan at [17] - [19].

[29] Ulan at [17].

[30] Ulan at [14] - [15], [19] - [20].

[31] Paragraphs 8 - 11 of the Applicant’s Outline of Submissions, DHB, page 18, paragraph 8 of the Applicant’s Outline of Submissions in Response, DHB, page 66.

[32] DHB, page 99, paragraph 19 of Exhibit R2, DHB, page 110.

[33] Amy Veronica Greene v Floreat Hotel – CEH Group t/a Floreat Hotel [2021] FWC 2198 at [99], Amy Veronica Greene v Floreat Hotel – CEH Group t/a Floreat Hotel [2021] FWCFB 4103 at [22], Nettleford v Kym Smoker Pty Ltd [1996] IRCA 495, (1996) 69 IR 370, 373.

[34] Explanatory Memorandum to Fair Work Bill 2008, paragraph 1548.

[35] DHB pages 11, 100.

[36] DHB, pages 82 & 83.

[37] Paragraphs 35 – 36 of Exhibit R2, DHB, page 112.

[38] Paragraph 3 of Exhibit A1, DHB, page 14.

[39] Paragraphs 1 & 3 of Exhibit A1, DHB, page 14.

[40] Paragraph 37 of Exhibit R2, DHB, page 112.

[41] Paragraph 8 of Exhibit A1, DHB, page 15.

[42] Kestrel Coal Pty Limited v Odette Lennox[2025] FWCFB 114 at [8] - [13].

[43] Technical and Further Education Commission t/a TAFE NSW v L. Pykett[2014] FWCFB 714 at [36].

[44] Helensburgh Coal Pty Ltd v Bartley [2024] FCAFC 45.

[45] Helensburgh Coal Pty Ltd v Neil Bartley and Others [2025] HCA 29.

[46] Ulan Coal Mines Limited v Honeysett and others[2010] FWAFB 7578 at [28].

[47] Paragraph 24 of the Applicant’s Outline of Submissions in Reply, DHB, pages 71 & 72.

[48] DHB, pages 96, 102, 111.

[49] [2013] FWCFB 6191.

[50] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [50].

[51] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [50].

[52] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51], Glenn Reseigh v Stegbar Pty Ltd[2020] FWCFB 533 at [54].

[53] Capacity was explained by a Full Bench of the Commission in Glenn Reseigh v Stegbar Pty Ltd[2020] FWCFB 533 at [42].

[54] Mark Bartlett v Ingleburn Bus Services Pty Ltd[2020] FWCFB 6429 at [19], Glenn Reseigh v Stegbar Pty Ltd[2020] FWCFB 533 at [55] - [56].

[55] DHB, page 94.

[56] DHB, pages 114 & 127.

[57] DHB pages 59, 82, 111 – 112.

[58] Sydney Trains v Gary Hilder [2020] FWCFB 1373 at [26].

[59] Mark Bartlett v Ingleburn Bus Services Pty Ltd[2020] FWCFB 6429 at [25].

[60] Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter[2014] FWCFB 7198 at [9].

[61] Vennix v Mayfield Childcare Ltd[2020] FWCFB 550 at [20].

[62] [2016] FWCFB 7206.

[63] He v Lewin [2004] FCAFC 161 at [58].

[64] Sprigg v Paul’s Licensed Festival Supermarket (1988) 88 IR 21.

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