Sarah Wilson v Brisbane Crane Trucks Pty Ltd
[2025] FWC 1301
•23 MAY 2025
| [2025] FWC 1301 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Sarah Wilson
v
Brisbane Crane Trucks Pty Ltd
(U2024/13918)
| DEPUTY PRESIDENT LAKE | BRISBANE, 23 MAY 2025 |
Application for an unfair dismissal remedy – genuine redundancy – consultation requirements not complied with – dismissal unfair – compensation ordered
The background to this matter is set out in my decision of 17 February 2025,[1] in which I granted Ms Sarah Wilson (the Applicant) an extension of time to make her unfair dismissal application.
In addition to the out of time objection, which has been dealt with, Brisbane Crane Trucks Pty Ltd (the Respondent) objected to the application on the basis of genuine redundancy.
A conciliation was held on 3 March 2025 and the matter was not resolved. The matter was listed for a hearing on 1 April 2025. The Applicant and Respondent appeared self-represented.
Is there a genuine redundancy under s.389(1) of the Act?
In Helensburgh Coal Pty Ltd v Bartley [2024] FCAFC 45, the Full Court of the Federal Court made it clear that if the factors of genuine redundancy are established, there is no unfair dismissal even if the redundancy has aspects of being harsh, unjust and unreasonable.
There can be little doubt that s 389 of the FW Act—and, more broadly, the significance of “genuine redundancy” to s 385(d)—was intended to narrow the circumstances in which an employee might be said to have been “unfairly dismissed”; and, thereby, to afford employers a defence in circumstances involving dismissals for operational reasons (as opposed to reasons of conduct or capacity). A dismissal that is a “case of genuine redundancy” is immune from relief under Pt 3‑2. That is so even if it might unambiguously qualify as “harsh, unjust or unreasonable”[2]
Therefore, I consider whether the requirements of genuine redundancy are met regardless of whether it may be qualified as harsh, unjust or unreasonable. The requirements of genuine redundancy prescribed under s.389 of the Act are:
1.The role was no longer required to be performed by anyone because of operational requirements of the employer’s enterprise.[3]
2.Consultation if prescribed under Enterprise Agreement or applicable Award.[4]
3.Offer of redeployment if it was reasonable in all the circumstances.[5]
1. Did the Applicant’s employer no longer require the Applicant’s job to be performed by anyone because of operational requirements of the employer’s enterprise?
The Commission is not required to undertake an inquiry into the reasonableness of the changes in operational requirements. It just needs to be established.
A case of genuine redundancy may arise if a dismissal is the consequence of changes in the operational requirements of an employer’s enterprise. The FW Act does not contemplate any inquiry into the reasonableness of such changes, neither “in all [of] the circumstances” or at all. Subject to s 389(1)(b) and 389(2), any change in operational requirements will suffice.[6]
“Operational requirements” is a broad term which encompasses a broad range of factors which include factors such as the current performance of the business, the state of the market in which the business operates, steps to improve efficiency with new processes/equipment/skills, arranging labour to be used more productively or the application of good management to the business.
In Ulan Coal Mines Limited v Howarth and others [2010] FWAFB 3488 at [17], the Full Bench considered redundancy where the job as a collection of “functions, duties and responsibilities” becomes no longer required.
“It is noted that the reference in the statutory expression is to a person’s “job” no longer being required to be performed. As Ryan J observed in Jones v Department of Energy and Minerals (1995) 60 IR 304 a job involves “a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employees’ organisation, to a particular employee” (at p. 308). His Honour in that case considered a set of circumstances where an employer might rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly-created positions. In these circumstances, it was said that:
‘What is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the re-organisation, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position becomes redundant…’ (at p.308)”
This does not mean that if any aspect of the employee’s duties is still to be performed by somebody, he or she cannot be redundant (see Dibb v Commissioner of Taxation (2004) FCR 388 at 404-405). The examples given in the Explanatory Memorandum illustrate circumstances where tasks and duties of a particular employee continue to be performed by other employees but nevertheless the “job” of that employee no longer exists.
If there is no longer any function or duty to be performed by an employee, his or her position becomes redundant even where aspects of that employee’s duties are still being performed by other employees.[7] The consideration is whether the previous job has survived the restructure or downsizing, rather than a question as to whether the duties have survived in some form.[8]
The Applicant was employed in the position of Customer Service Officer. On 15 October 2024, she was informed that her role had been made redundant. Her coworker, who was the other Customer Service Officer, was made redundant on the same day.
The Applicant’s other colleague, Mr Mitchell Maldet, who had been in the role of Fleet Supervisor, took up both the customer service and administrative duties of the business. Mr Maldet resigned on 26 November 2024 and the Respondent gave evidence that since his departure, the owners of the Respondent have taken over the customer service role, as well as using temporary agencies. The Respondent’s evidence is that the Seek advertisement on 18 November 2024 was to cover Mr Maldet’s position, as he had recently indicated an intention to resign, not to cover the Applicant’s role. According to the Respondent, the advertised position was never filled.
The Applicant argued that her role was still required to be performed. She states in her submissions:
Referencing the Fair Work Act 2009 - Section 389, I believe the redundancy was non-genuine as the tasks I performed in the role of Customer Service Officer were not distributed to other team members and the title of Customer Service Officer consequentially retired, instead it was reallocated in its entirety to a colleague demoted from his previous position of Fleet Supervisor, and in November 2024 a second person for the role was sought out via Seek and Vision’s Facebook page. This would indicate that my role was (and is!) still very much active and needs to be done by someone.
The assessment of whether a role is still required to be performed is considered based on the circumstances at the time of the dismissal. However, this assessment will always be somewhat artificial, because the Commission is assessing whether the role was required months later, with the benefit of hindsight. Therefore, I would be circumspect to rely on the advertisement one month after the redundancy, after another employee resigned, as conclusive evidence that the Applicant’s job was still required at the time of her redundancy.
The enquiry is whether the job, as a collection of duties and functions, is still required to be performed. The Respondent’s evidence is that Mr Maldet was not only performing customer service duties, but was also performing the duties associated with his Fleet Supervisor position. The Applicant contests this and argues that Mr Maldet was effectively demoted to customer service duties following the redundancy. The fact that the Respondent still has some need for customer service work is not evidence that the Applicant’s job was still required to be performed. Section 389 of the Act does not prevent a business from downsizing. For example, the Explanatory Memorandum for the Fair Work Bill 2008 provides the following examples:
1548. The following are possible examples of a change in the operational
requirements of an enterprise:
· 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
The Respondent gave evidence of financial difficulty in the months leading up to the redundancies. In early 2024, the Respondent lost a major client. In June 2024, the Respondent lost another key client. These losses had flow on effects in the following months. The Respondent provided profit and loss data from July 2023 to June 2025. Mr Mark Frankling, Director of the Respondent, gave evidence that the Respondent’s external financial consultant, Mr Glenn Munro, gave monthly financial reports to the Directors. Mr Munro frequently advised the Directors to make changes. Mr Munro reportedly advised that if the business did not make serious changes then by February 2025, they would be insolvent, as there is usually slow trading in January followed by bills for BAS, superannuation and payroll all falling due in February.
The Respondent’s evidence is that the Directors did not take these warnings seriously until they had a meeting with their accountant on 23 August 2024. The Respondent’s accountant advised that the business was losing $20,000 a week and needed to make changes in order to be cash flow positive.
The testimony of Mr Frankling and Mr Munro is reflected in the profit and loss data, which shows losses in the first quarter of the 2024/2025 financial year and a high wages bill proportionate to the business’s other expenses.
Mr Frankling gave evidence that following this advice of his consultant and his accountant, he took steps to improve the business’s cash flow through renegotiating its rental agreement in Brisbane, renegotiating terms with suppliers and reducing staff, particularly the two Customer Support Officers. There was also a reduction of the head count of employees in Townsville and the reduction in the number of subcontractors.
The Applicant rejected the Respondent’s contention that there were operational requirements for the redundancy. The Applicant stated that she had informally asked two accountants to “look over” the profit and loss data to assess it. The Applicant should not have done this, as it is confidential evidence, but in any event, the second-hand feedback from the accountants is not particularly persuasive. For example, one of the accountants reportedly stated that the profit and loss information did not include a full itemisation of costs. It is true it does not contain a full itemisation of costs. This is because it is a summary prepared by Mr Munro based on extracted data, rather than a profit and loss statement prepared by an accountant. It does not purport to be anything else. One of the accountants also reportedly stated “how they could be possibly working to get rent and wage costs down when they are consistently opening new depots and adding new staff.” Again, this is not persuasive as there is no evidence that the Respondent was in fact “consistently” opening new depots and adding new staff. Further, it is not the role of the Commission, or the Applicant, to decide how the Respondent’s business should be run.
The Applicant also objected on the basis that she had received a letter in July 2024 in which Mr Frankling states that the business is recovering from the loss of one of its clients and was opening a new Cairns depot. There was also a purchase of new vehicles. The Applicant also notes that the Respondent had signed a new lease in Townsville and questions why the Respondent would make a such a big financial commitment if they were experiencing financial difficulties.
Although the Applicant raises some cogent questions about the Respondent’s decisions, she and her witness were not privy to the financial concerns of the Respondent to the same degree as the Respondent’s Directors. Further, the Respondent provided explanations for both the opening of the Cairns depot and the signing of the Townsville lease during the hearing. As to the depot, the Respondent explained that opening the new depot reduced costs by streamlining the headcount in Townsville and allowing them to base a truck in Cairns which reduced fuel costs. As to the Townsville lease, the Respondent gave evidence that the Respondent had already committed to a 10 year lease “over 16 months” ago and the Respondent disputed the Applicant’s evidence as to the cost of that lease.
In assessing whether there were operation requirements at the time of the redundancy, I have placed greater weight on the Respondent’s evidence they have provided testimony and documentary evidence of financial difficulty. Further, as a general proposition, evidence of spending is not necessarily inconsistent with a company facing cash flow issues because capital investment, such as the Cairns facility, can ultimately reduce monthly costs. Finally, the role of the Commission is not to step in the shoes of the Respondent and decide which financial decisions the Respondent should have made to reduce costs.
Therefore, I accept that due to changes in operational requirements, the Applicant’s role was no longer required to be performed by anyone. Specifically, the business engaged in downsizing following external financial advice that they had significant cash flow issues. Consequently, the two Customer Service Officer roles were no longer required. The customer service duties were subsequently integrated with the Fleet Supervisor role.
Did the Respondent comply with any obligations in a modern award or enterprise agreement that applied to the employment to consult about redundancy?
The obligation on an employer to consult about redundancy only arises when a modern award or enterprise agreement applies to an employee and that modern award or enterprise agreement contains requirements to consult about redundancy. There is no legislative requirement to consult about the redundancy before a decision is made to make an employee redundant.
The Applicant’s employment contract notes that she is covered by the Clerks – Private Sector Award 2002 (the Award). Clause 38 of that Award requires the employer to consult about major changes to its organisation or structure that are likely to have significant effects on employees, including redundancies.
It is not contested that the Applicant was first informed of the redundancy on the day she was terminated. She was given a termination letter after the meeting, without an opportunity to give input into the decision.
At the very least, the Respondent should have had a discussion with the Applicant and her colleague in customer service, prior to actually making them redundant. Further, clause 38.2 of the Award requires the employer to give notice of the change to the affected employees in writing.
The Respondent conceded in the hearing that the employer would normally give the employee notice that the business was restructuring and that a redundancy was possible. The Respondent said they would have “preferred” to have had a conversation with the affected employees prior to making them redundant. The Respondent’s explanations for not doing so were because there were “rumours” within the business and because they were also concerned that sensitive information regarding the company’s financial position could become known to suppliers and competitors should they have told the customer service officers prior to their termination. The Applicant raised the argument that she was obliged not to divulge confidential information under her contract.
I find that the Respondent did not comply with its consultation obligations under the Award. Therefore, in accordance with s.389, the Applicant’s redundancy was not a genuine redundancy. Having found that the Applicant was not made genuinely redundant, it is not strictly necessary for me to consider whether it would have been reasonable for the Applicant to be redeployed within the employer’s enterprise. However, for completeness, I will consider it below.
Was it 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?
In Helensburgh Coal Pty Ltd v Bartley [2024] FCAFC 45 at 66, the Full Court of the Federal Court of Australia notes:
“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”.
In Helensburgh Coal Pty Ltd v Bartley[2021] FWCFB 2871 at [8], the Full Bench reaffirmed the rules of redeployment set out by Vice President Hatcher in Pettet and Ors v Mt Arthur Coal Pty Ltd[2015] FWC 2851 at [6] in relation to s.389(2) of the FW Act as follows:
“The principles concerning the interpretation and application of s.389(2) have been stated in two Full Bench decisions, Ulan Coal Mines Ltd v Honeysett and Technical and Further Education Commission t/a TAFE NSW v Pykett. Those principles were summarised in Huang v Forgacs Engineering Pty Limited as follows:
(1) The exclusion in s.389(2) poses a hypothetical question which must be answered by reference to all of the relevant circumstances.
(2) The question is concerned with circumstances which pertained at the time of the dismissal.
(3) In order to conclude that it would have been reasonable to redeploy the dismissed person, 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.
(4) A number of matters are capable of being relevant in answering the question, including 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 and the remuneration which it offered.”
The Full Bench stated that the work to which an employee might be redeployed must, ultimately, be work over which the employer has control.[9]
The Respondent submitted in the hearing that it was not possible for the Applicant to be redeployed to another existing role in administration within the business, due to there being a small team of people who perform those tasks. There was no suggestion by the Applicant that she could have been redeployed a role other than one in administration or customer service. It is not necessary to consider whether the Applicant should have been offered the position advertised in November 2024, although I note that she says she would have been grateful for such an offer.
I am satisfied that, based on the circumstances existing at the time of the dismissal, it would not have been reasonable for the Applicant to be redeployed within the employer’s enterprise.
As I have found that the Applicant’s dismissal was not a case of genuine redundancy, it is therefore necessary for me to consider the merits of the application and determine whether the dismissal was harsh, unjust or unreasonable.
Was the dismissal harsh, unjust or unreasonable?
Section 387 of the Act provides the criteria and considerations the Commission must take into account when deciding if the dismissal was harsh, unjust or unreasonable. As required by the Act, I consider the following:
(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);
A valid reason for dismissal should be “sound, defensible or well founded” and should not be “capricious, fanciful, spiteful or prejudiced.”[10] As summarised by Deputy President Asbury in Smith v Bank of Queensland Ltd a “dismissal must be a justifiable response to the relevant conduct or issue of capacity”.[11] The Commission must consider the entire factual matrix in determining whether an employee’s termination was for a valid reason.[12]
The Applicant submits that she was dismissed because she was pregnant and because she had made a complaint against another employee. The Applicant’s evidence is that she had not yet announced her pregnancy to the team at the time of her dismissal however she believes there were rumours that she was pregnant, having been spread by the employee she complained about.[13] She relies on the evidence of Mr Brett Lomacchio, a former employee of the Respondent. Mr Lomacchio testifies that he overheard Mr Frankling say that he did not want to hire anyone who could get pregnant or could get sick. He states in his witness statement:
Another reason I believe Sarah was made redundant due to her pregnancy was on approximately 1/10/24, I had walked into Rob's office when Mark (Director) and Rob were having a meeting regarding employing a sales manager and I heard Mark saying, "we need to make sure we don't employ anyone that could get pregnant and or have any health issues".
Mr Frankling has consistently denied making that statement, including while under oath. This places the Commission in the difficult position of having received diametrically opposed testimony. The statement, if it was actually made, is flagrantly discriminatory. I approach this evidence with caution. Mr Lomacchio walked into an office and overheard a conversation, but there are no details of what else was said immediately before and after the statement, other than that it was about hiring a sales manager. Further, it is not clear even on the Applicant’s evidence that the statement about pregnancy, if it was made, was made about her. She had not informed the directors of the Respondent about her pregnancy at the time of the dismissal, though she states there were some rumours around. I am not prepared to accept, on the evidence before me, that the Applicant’s pregnancy was the “true reason” for her dismissal as there is insufficient evidence to prove that the Respondent was aware of the pregnancy at the time of the redundancy.
There is no evidence that the Applicant was dismissed for having made a complaint against another employee. The Applicant’s evidence in this regard is a litany of complaints about that employee’s behaviour, without explaining how that led the Respondent to decide to dismiss her.
I find that the reason for the Applicant’s dismissal was because the Respondent no longer required the Applicant’s role to be performed by anyone. I find this to be a neutral factor, as the reason for dismissal did not relate to any issue of conduct or capacity.
(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
There was no reason for the dismissal which related to the Applicant’s capacity or conduct and therefore the Applicant was not notified of any such reason. Accordingly, I find this to be a neutral factor. I have considered the lack of consultation about the redundancy as a relevant factor under s.387(h).
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to the dismissal; and
There was no unreasonable refusal by the employer to allow the Applicant to have a support person.
This factor is a neutral consideration.
(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
The Applicant was not terminated for unsatisfactory performance.
This weighs neutrally.
(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
The parties did not submit that the size of the Respondent’s enterprise was likely to impact on the procedures followed in effecting the dismissal and I find that the size of the Respondent’s enterprise did not have an impact. The Respondent is not a small business. This is a neutral factor.
(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
The Respondent does not have dedicated human resources staff. However, it engages Mr Munro as a consultant on human resources matters. The Respondent did not submit that the absence of dedicated human resources staff had an impact on the procedures followed. This is a neutral factor.
(h) any other matters that the FWC considers relevant.
The Applicant was pregnant at the time of the dismissal, has recently had her baby and has not secured alternative employment. She is also the primary earner within her household. The Applicant’s personal circumstances weigh marginally in favour of finding that the dismissal was unfair.
Further, while a failure to consult in accordance with the relevant Award does not automatically lead to a finding that the dismissal was unfair, it is a factor which may weigh in favour of a finding of unfairness.[14] The sudden nature of the dismissal, with the Applicant having no notice of the meeting or the fact that she may be dismissed that day, weigh in favour of a finding of unfairness. In these circumstances, had the consultation requirements been complied with, including a notice of the change and a consultation to discuss options other than redundancy, I am satisfied that the Applicant would have remained employed with the Respondent for another two weeks.
Conclusion on merits
I find that the dismissal was harsh and unreasonable. Although there were legitimate changes in operational requirements which required the Respondent to downsize its operations, the Applicant was not afforded an opportunity to engage in discussions with management about options other than redundancy. The Applicant was dismissed shortly after being informed of the changes to the business, with no suggestion that she could continue to work for the Respondent. In light of the Applicant’s personal circumstances, failure to discuss other options with the Applicant was harsh.
Remedy
Given that I have found that the Applicant’s dismissal was unfair, it is necessary to consider the question of remedy.
The Applicant has requested that compensation be granted. Reinstatement would not be appropriate, due to the Applicant’s concerns with another employee and due to the serious nature of the allegations raised by the Applicant and her witness.
Pursuant to section 390 of the Act, this Commission may order:
“390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.”
Section 392 sets out the considerations for awarding compensation:
“Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC 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.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled; (whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”
The established approach to assessing compensation in unfair dismissal cases was set out in Sprigg v Paul Licensed Festival Supermarket,[15] and has been applied and developed by Full Benches of the Commission.[16]
The assessment of compensation involves a four-step process. however, this is not a substitute for the words in the Act:
“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). I am also required to consider the length of service with the employer[17] and the ability to find a new role as a relevant factor in calculating compensation per s392(2).
Step 2: Deduct monies earned since termination.[18]
Step 3: Discount the remaining amount for contingencies.[19]
Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount they would have received if they had continued in their employment.”
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).
The Applicant was employed with the Respondent for six months, having just passed her probation at the time of her dismissal.
The Applicant has argued that she should be paid 26 weeks wages, due to the fact that she does not have a job to return to after the birth of her baby.[20]
However, as I have found above, had the consultation requirements been complied with, the Applicant would have remained employed with the Respondent for another two weeks.
The Applicant’s last payslip shows that her weekly pay at the time of dismissal was $1,153.85 gross plus superannuation. I find that the Applicant would have earned $2,307.70 gross plus superannuation had she remained employed with the Respondent for another two weeks.
Step 2: Deduct monies earned since termination.
I am satisfied that the Applicant had taken steps to attempt to mitigate her losses prior to giving birth and I make no deductions for failure to mitigate her losses.
The Applicant states that she has not found alternative employment and did not indicate that she had earned any other income during the period following termination. I will not make any deductions under this step.
Step 3: Discount the remaining amount for contingencies.
The Applicant was not dismissed as a result of any conduct she engaged in and I make no deduction 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.”
In Bowden v Ottrey Homes Cobram and District Retirement Villages,[21] the Full Bench noted that in relation to the fourth step, the usual practice is to settle a gross amount and leave taxation for determination. I will leave the issue of taxation for determination by the Respondent.
Viability
No issues of viability were raised by the Respondent.
The Respondent is ordered to pay the sum of $2,307.70 gross plus superannuation within 21 days upon issuing this Order to the Applicant’s nominated bank account that was on payroll.
I Order accordingly.
DEPUTY PRESIDENT
Appearances:
S Wilson for herself as the Applicant
M Frankling for the Respondent
Hearing details:
1 April
2025
Via Microsoft Teams
[1] [2025] FWC 387
[2] Helensburgh Coal Pty Ltd v Bartley and Anor [2024] FCAFC 45 at 55 (“Helensburgh Coal Pty Ltd”).
[3] Fair Work Act 2009 (Cth) s 389(1)(a).
[4] Ibid s389(1)(b)
[5] Ibid s389(2)(a)-(b).
[6] Helensburgh Coal Pty Ltd at [58].
[7] Jones v Department of Energy and Minerals [1995] IRCA 292 (16 June 1995), [(1995) 60 IR 304 at p. 308 (Ryan J)]; cited with approval in Ulan Coal Mines Limited v Howarth and others [2010] FWAFB 3488 (Boulton J, Drake SDP, McKenna C, 10 May 2010) at para. 17, [(2010) 196 IR 32] (“Ulan Coal Mines Limited”).
[8] Kekeris v A. Hartrodt Australia Pty Ltd T/A a.hartrodt[2010] FWA 674
[9] Helensburgh Coal Pty Ltd v Bartley and Anor [2021] FWCFB 2871 at [54].
[10] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[11] [2021] FWC 4 at 118.
[12] Commonwealth of Australia (Australian Taxation Office) t/a Australian Taxation Office v Shamir[2016] FWCFB 4185, [46], citing Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410, 413.
[13] Applicant Submissions dated 24 February 2025
[14] English v Tee Ink Pty Ltd [2023] FWC 2805 at [72], citing Gomes v OE & DR Pope Pty Ltd T/A Pope Packaging at [58].
[15] (1998) 88 IR 21.
[16] Bank of Sydney Ltd T/A Bank of Sydney v Repici [2015] FWCFB 7939.
[17] Fair Work Act 2009 (Cth) s392(2)(b) -(c) and s392(2)(g).
[18] Ibid s392(2)(e).
[19] Ibid s392(2)(a), (d) and (f).
[20] Applicant Submissions dated 24 February 2025.
[21] [2013] FWCFB 431
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