s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - valid reason - whether dismissal harsh, unjust or unreasonable - valid reason found - procedural fairness considered - termination considered harsh and unjust - reinstatement considered not appropriate - compensation order.

• [1] On 25 September 2024, Mr Andrew Murphy (the Applicant) made an application under s.394 of the Fair Work Act 2009 (the Act) alleging that he was unfairly dismissed from his employment and that his dismissal on 4 September 2024 was harsh, unjust or unreasonable.

• [2] Mr Murphy's employer, Xavier College Limited (the College or the Respondent), denies these allegations. Their position is that there were valid reasons Mr Murphy was dismissed and that he was provided procedural fairness prior to this decision being confirmed.

• [3] The matter was allocated to my Chambers on 30 October 2024.

• [4] On 20 November 2024, I issued directions for the merits of Mr Murphy's application to be determined at a Hearing on 10 February 2025.

• [5] Having considered all the submissions and evidence submitted by the parties, I have found that the circumstances of this case are such that Mr Murphy was unfairly dismissed within the meaning of the FW Act. Whilst I have been satisfied that there was a valid reason for his dismissal, I have found the termination of his employment was harsh and unjust. The reasons for these findings are set out below and the consequences for both the Applicant and the Respondent are found at the conclusion of this decision.

When can the Commission Order a Remedy for unfair dismissal?

• [6] Section 390 of the Act provides that the Commission may order remedy if:

(a) the FWC is satisfied that the Applicant was protected from unfair dismissal at the of being dismissed; and

• [7] Both limbs must be satisfied. Therefore, I am required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am so satisfied, next consider whether the Applicant has been unfairly dismissed.

When is a person protected from unfair dismissal?

• [8] Section 382 of the Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less that the high-income threshold.

• [9] Section 385 of the Act provides that a person has been unfairly dismissed if the FWC is satisfied that:

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy."

• [10] The factual background to this matter is as follows:

• The Respondent operates a Catholic college for boys in Melbourne.

• Mr Murphy commenced working at Xavier College on 8 October 2003 as a teacher. Apart from some casual relief teaching prior, this was his only employer up until his termination on 4 September 2024.

• Mr Murphy's teaching duties included teaching VCE Latin, Religious Education, Italian and classical Greek.

• In addition to his teaching duties, Mr Murphy also performed the roles of Independent Education Union (IEU) representative and Health and Safety (HSR) representative at the College.

• In October 2016, Mr Murphy received a formal warning for failing to comply with all reasonable directions following an independent investigation into interactions of concern with another colleague and a failure to participate in required coaching and mentoring.

• On 5 December 2022, Mr Murphy received a second and final warning following an investigation into further concerns with his performance, including inappropriate communications in his role as HSR.

• Part of this final warning included a direction that Mr Murphy participate in a 12 month "performance improvement plan" and mentoring program with the Respondent's Director of Faith and Service, Mr Cumbo.

• Mr Murphy participated in mentoring meetings and programs with Mr Cumbo throughout 2023. Both Mr Murphy and Mr Cumbo concluded that the program should be extended into 2024 as it had failed to be adequately completed through 2023.

• During 2023, Mr Murphy underwent surgery for a hand injury, that has impacted his capacity to type and write proficiently and required him to take medical leave, which in addition to illness, interrupted his participation in the mentoring program.

• On 24 November 2023, Mr Doherty (Principal) requested Mr Murphy provide him his reflections on the performance improvement plan process as part of a review and invited Mr Murphy to a meeting for this purpose between 7 and 12 December 2023.

• Mr Murphy sent his reflection to Mr Doherty on 7 December 2023. A meeting with Mr Doherty was scheduled for the following day. Mr Murphy was unable to attend work on 8 December 2023. The school year ending, illness and unavailability resulted in the proposed meeting to discuss the plan not going ahead.

• On 1 December 2023, Mr Murphy was involved in identifying a series of health and safety concerns at the College, including issuing a performance improvement notice ('PIN') to Mr Doherty, in his capacity as a HSR representative.

• On medical advice, Mr Murphy was able to return to work from 29 January 2024 and advised Mr Doherty.

• On 23 February 2024, Mr Doherty emailed Mr Murphy indicating that he wanted to discuss his conduct improvement plan. A meeting to do so was scheduled for 6 March 2024.

• On 5 March 2024, Mr Doherty advised Mr Murphy the proposed discussion of his conduct improvement plan the next day would not go ahead. He indicated there would be a follow up later. Mr Doherty made this decision to avoid any perception there was a connection between the management of Mr Murphy's performance and his role actioning safety concerns.

• In March 2024, Mr Murphy was advised he had been selected for jury duty and may be required to participate. He did not advise the College he may be required for jury service.

• In early March 2024, Mr Murphy received a request from Ms Monique Dalli that he tidy up his desk and work area. On 30 May 2024, Ms Dalli requested he complete this task by 14 June 2024. On 20 June 2024, Ms Dalli reiterated this request.

• On 23 May 2024, Mr Murphy attended a school excursion to an Opera Australia event with a colleague in an assisting capacity and was absent from the College.

• Changes to the student exam timetable necessitated by student learnings, timetabling and Mr Murphy's availability led to some of his Semester 1 student assessments (SACs) being rescheduled and conducted in the last week of term 2.

• Mr Murphy advised relevant students they would receive their completed marks, feedback and results in the first few weeks of term 3 and did not provide them complete results in their Semester 1 reports.

• Mr Murphy received medical advice not to perform work during the Semester break. On return from overseas at the end of the break, he found out he had been selected for jury duty. He was required for jury service on 17 July 2024, and 5 days thereafter.

• Towards the middle of the 2024 school year, Ms Dalli received an increased number of complaints about Mr Murphy's failure to provide timely feedback to students and work constructively with colleagues, including maintaining a clean desk and work area.

• On 2 August 2024, Mr Murphy was provided with a second formal notice of concerns letter inviting him to provide a formal response and participate in a meeting in accordance with clauses 27.1 - Performance Management and 27.5 - Conduct Management of the Xavier College Enterprise Agreement.

• This letter set out specific concerns of the Respondent with Mr Murphy's conduct and performance, including:

1. Concern 1: Repeated failure to meet the accountability requirements inherent in your role as a professional member of the College's teaching staff;

1. Concern 2: Repeated breaches of your obligations as a member of staff under clause 3.1 of the Australian Jesuits Code of Conduct (Code of Conduct) to act with collaboration, trust and mutual respect in your dealings with colleagues in your faculty and the College more broadly; and

1. Concern 3: Repeated failures to follow proper and fair College process.
   • On 20 August 2024, Mr Murphy attended a meeting with Mr Doherty and Ms Bignell (Legal Counsel) to provide a response to these concerns. Mr Murphy was joined by Mr Cooney from the IEU at this meeting and provided his response to the concerns raised.

• On 26 August 2024, Mr Doherty wrote to Mr Murphy and advised him that he had formed a view on the concerns under investigation and advised him of further marking concerns regarding Year 12 students. This correspondence requested a further meeting with Mr Murphy the next day.

• On 27 August 2024, Mr Murphy and Mr Cooney met with Mr Doherty and provided an initial response to the additional Marking Concerns, including a potential requirement for the College to report marking issues to the Victorian Curriculum Assessment Authority (VCAA).

• At the 27 August 2024 meeting, Mr Doherty provided Mr Murphy with a show cause letter outlining his preliminary view that, subject to any response, termination of Mr Murphy's employment was an appropriate course of action.

• On 28 August 2024, Mr Murphy provided Mr Doherty with a written response to the underlying concerns.

• On 30 August 2024, Mr Doherty wrote to Mr Murphy indicating he was satisfied the marking concerns were substantiated and warranted a further ground of negligence in the discharge of his duties as misconduct justifying the termination of Mr Murphy's employment.

• This letter also provided Mr Murphy with a further final opportunity to respond to the marking concerns, and the proposed termination of his employment.

• On 2 September 2024, Mr Murphy provided a written response to this letter.

• On 4 September 2024, Mr Doherty provided Mr Murphy with a final written response confirming the decision to terminate his employment effective immediately with payment in lieu of notice.

• On 25 September 2024, Mr Murphy filed his F2 application form with the Commission seeking an order for reinstatement and an order for compensation pursuant to Part 3-2 of the FW Act alleging his termination was harsh, unjust or unreasonable.

• The Respondent denies this to be the case. On 18 October 2024, the College filed its F3 employer response, maintaining Mr Murphy's employment was terminated with cause and that he was provided with procedural fairness.

• [11] With there being contested facts involved, the Commission is obliged by s.397 of the Act to conduct a conference or hold a hearing. Considering the views of the parties and the circumstances of this case, I determined a hearing was the most effective and efficient way to resolve the matters of contention.

• [12] A hearing was conducted on 10 February 2025. Mr Murphy was represented by Mr Justin Cooney of the Independent Education Union (IEU) and the Respondent was represented by Ms V. Jones.

• [13] Mr Murphy filed a series of written submissions along with supporting documents, in addition to his F2 application. Mr Murphy also gave sworn evidence during proceedings.

• [14] The Respondent filed written submissions and provided a series of documents in support of its position in addition to its F3 employer response. The Respondent's submissions were supported by the sworn evidence of Mr Cumbo, Ms Dalli, and Mr Doherty.

• [15] Both the Applicant and the Respondent made closing submissions at the conclusion of the hearing, with final submissions being received by the Commission on 24 February 2024.

• [16] A Court book, containing all materials filed by the parties was compiled and distributed to the parties prior to the Hearing. I received the entirety of the Court book into evidence, subject to appropriate weight being given to the evidence that was tainted by opinion, irrelevance or hearsay.

• [17] Section 396 of the Act sets out the following:

"The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) Whether the application was made within the period required in subsection 394(2);

(b) Whether the person was protected from unfair dismissal;

(c) Whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy."

• [18] As set out above in s.396 of the Act, consideration as to whether the dismissal was unfair cannot occur unless the Commission is first satisfied that the provisions of s.396 have been met. In the present case, it is not contested, and I am satisfied that Mr Murphy's application was filed on 25 September 2025 and is made within the required timeframe. It is not contested, and I am satisfied that Mr Murphy was earning below the high-income threshold and is a person protected from unfair dismissal. It is also not contested, and I am satisfied, that the Respondent is not a small business. Nor is it asserted, and I am satisfied this is not a case of genuine redundancy.

• [19] As I have been satisfied that the requirements of s.396 are met, I am required to consider the merits of whether Mr Murphy's dismissal was harsh, unjust or unreasonable.

• [20] Mr Murphy's position is that for the Commission to be satisfied of a valid reason for the dismissal arising from his conduct, it must be satisfied, on the material before it, that misconduct occurred. And that on an objective and rational assessment of what has transpired in all the circumstances of this case,[1] does not support the Respondent's conclusion of a valid reason for dismissal.[2]

• [21] Further, that Mr Murphy has been denied a "fair go all round" [3]. That the Respondent's reasoning for the dismissal falls well short of being "sound, defensible or well founded". That they have not identified any breach of College policy, misconduct, or serious misconduct by Mr Murphy even if the conduct alleged in fact occurred. Ultimately, Mr Murphy submits he has not engaged in "wrongful, improper or unlawful conduct motivated by premediated or intentional purpose or by obstinate indifference to the consequences of one's acts."[4]

• [22] In addition, Mr Murphy submits he was denied procedural fairness because evidence of the supervisors was not provided, and he was denied a proper opportunity to respond or sufficiently warned his employment was at risk. That he participated openly and honestly in the investigation process, that he is an employee of good standing and extensive service with the Respondent, and that termination is a disproportionate response to the conduct alleged and in the circumstances of his case, harsh, unjust or unreasonable."[5]

• [23] In relation to the allegations against him, Mr Murphy accepts he had some difficulty submitting reports and marking results on time during 2024. Variously, he accounts for these delays by reference to difficulty he had with a new Canvas system; his delayed recovery from arm surgery that impacted his typing and writing proficiency; medical advice not to work during the Semester 1 break and his requirement to attend Jury service.

• [24] He also submits it was not uncommon for intermittent deadlines to be missed, that he reported the issues he was having meeting deadlines and sought assistance. Further, that he had approval to re-organise his students' SAC schedule to be sat the last day of term 2 and returned those results to students by the end of term 3, week 3. He denies failing to attend meetings, maintain a clean desk and not seeking authorisation to attend an external excursion to Tosca. Also denying that he has failed to act with "trust, collaboration and mutual respect" in his dealings with colleagues, the wider college and his supervisors.[6]

• [25] In relation to allegations that he failed to participate in a conduct improvement plan and consistently failed to follow proper College "processes", displaying a lack of respect for the College workplace, these are denied. Mr Murphy maintains he actively and genuinely engaged in the conduct improvement plan process with Mr Cumbo. That he supported its extension into 2024 and was not advised why he was not provided this opportunity by Mr Doherty.[7] Similarly, Mr Murphy denies any anomaly or reportable conduct in relation to his marking practices.[8]

• [26] On this basis, Mr Murphy submits the Commission should find there was no valid reason for his dismissal, and his termination was unjust. That it was unfair, as he had not been sufficiently warned of unsatisfactory performance prior to being dismissed. And that it was harsh in its consequences because of the circumstances of this case, and disproportionate to the gravity of the conduct alleged. He seeks to be reinstated to his position and maintains further that he was shocked and distressed by this termination and has been unable to secure comparable employment since termination.

• [27] Xavier College's position is that its decision to terminate Mr Murphy's employment was neither harsh, unjust or unreasonable. That the termination decision was the result of a just and considered process in which Mr Murphy and his representatives were afforded every opportunity to explain and reflect on his conduct. That he has had a history of performance concerns, including receiving two previous official warnings, and ultimately was unable to demonstrate his suitability or competency for the role.

• [28] Supporting this position, they maintain there was a valid reason evidenced by repeated instances of Mr Murphy demonstrating he was unable to satisfactorily complete allocated tasks, including the late provision of VCE Latin School Assessed Coursework (SAC) feedback and Semester 1 school reports. Repeated instances of Mr Murphy demonstrating an unprofessional attitude in his interaction with colleagues and management, including failing to communicate about uncompleted tasks, jury service commitments and directions to keep his work desk presentable. The failure of Mr Murphy to improve his performance despite opportunities to do so, including allocation of a buddy teacher and direction to participate in a conduct improvement plan through 2023.

• [29] In terms of the dismissal being unjust or unreasonable, the College's position is this cannot be the case given Mr Murphy was afforded significant time and opportunity to reflect on his conduct and correct his professional behaviour, commencing with a written warning in October 2016 and a second and final warning in December 2022. That Mr Murphy was provided with detailed written notice of his employer's concerns, he was provided the opportunity to be represented and was. That he was provided very opportunity to provide oral and written responses to the concerns raised which were thoroughly investigated by the Respondent.

• [30] In the context of this case, the College also submits there are several other matters that must be considered supporting its decision. These include the impact of Mr Murphy's conduct on VCE Latin Students, including a vulnerable student, being provided delayed SAC results and incomplete Semester 1 reports. Along with the requirement on the College to conduct a VCE panel investigation into Mr Murphy's marking practices in Latin.

• [31] In the context where Mr Murphy was a teacher providing valued and significant service to students, their families and the wider community, any negative impact on students is a matter not to be taken lightly.[9]

• [32] On this basis, the Respondent maintains Mr Murphy's application should be dismissed. In the alternative, they strongly oppose reinstatement indicating the Respondent has no trust or confidence in Mr Murphy as a proficient employee. That post termination, the Applicant's circumstances being reported in the media caused damage to students and the Respondent. In terms of any order for compensation being considered, the Respondent's position is that it should be minimal in circumstances where the Applicant engaged in misconduct, has good prospects of re-employment, and does not appear to have taken steps to mitigate his losses.[10]

Was the dismissal harsh, unjust or unreasonable?

• [33] I must consider all the circumstances of the case along with the relevant authorities.[11] A dismissal may be unfair, when examining if it is 'harsh, unjust or unreasonable' by having regard to the following reasoning of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd:[12]

"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."

• [34] Section 387 of the Act provides for the criteria for consideration whether a dismissal was harsh, unjust or unreasonable as follows:

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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."

• [35] I am required to consider each of these factors, to the extent they are relevant to the factual circumstances before me.[13]

• [36] I have set out my consideration of each below.

s.387(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)

• [37] In order to be a valid reason, the reason for the dismissal should be "sound, defensible, or well founded"[14] and should not be "capricious, fanciful, spiteful or prejudiced."[15] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[16]

• [38] Where a dismissal relates to an employee's conduct, the Commission must be satisfied that the conduct occurred and justified termination.[17] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.[18]

• [39] Deputy President Asbury (as she was then) summarised the relevant principles in relation to an employer's onus of establishing that there was a valid reason for a dismissal on the balance of probabilities as follows in Mellios v Qantas Airways Limited, which was confirmed on appeal by the Full Bench:[19]

"[17] In considering whether there is a valid reason for the Applicant's dismissal, I am required to be satisfied on the balance of probabilities that he engaged in the alleged misconduct or in misconduct to which dismissal was a valid, sound and defensible response. I must be conscious of the gravity of the allegations and the ramifications for the Applicant if they are made out. However, the standard of proof does not change and the issues in dispute must be determined on the balance of probabilities. Put another way, if must be more probable than not that the Applicant engaged in the relevant misconduct."

• [40] I have applied these principles to the matter before me.

• [41] The Respondent's substantiated findings of misconduct against Mr Murphy include:

• A failure to submit end of Semester 1 report data in accordance with the required deadline and a lack of accountability in failing to alert managers, seek assistance when he knew there would be delays, or communicate reasons for failing to deliver a core requirement of his role.

• A failure to provide his Year 12 students with their results and feedback about Semester 1 SACs in a timely or supportive manner and to advise management of anticipated delays.

• A failure to not follow the Respondent's proper processes, including not seeking authorisation to attend an excursion in another learning area; failing to attend a meeting in his learning area; failing to discuss matters in relation to the excursion with a manager.

• A failure to maintain his desk and work area to a safe and acceptable standard, to respond to reasonable requests and offers of support, to meet reasonable deadlines, and follow direct instructions.

• Repeated failure to meet accountability requirements inherent in his role as a professional member of staff.

• Failure to escalate delays with Year 12 SAC Reporting and Feedback to his manager, the Head of Learning Area.

• Failure to respond or follow directions given by the Director of Learning and Growth to attend to his desk.

• A lack of respect for his colleagues in relation to this attendance at meetings impacted by his participation in an out of learning area excursion and a failure to communicate with the Head of Learning Area.

• Unsatisfactorily completing the conduct improvement plan that was put in place in 2023.

• Using incorrect marking practices in breach of the Respondent's reporting practices as well as VCAA rules and policy.

• Failing to follow appropriate processes of the Respondent and VCAA for providing access to results and feedback, including entering results in the VASS system prior to a vulnerable student having the opportunity for feedback or review.

• [42] Under examination, the contested evidence that Mr Murphy engaged in each instance of the conduct alleged with either malicious intent, carelessness or negligence was not overwhelming.

• [43] Mr Murphy's evidence is that he made Ms Marie-Peirre Deleplanque (Learning Area Leader - Languages) aware of concerns and difficulties he was having meeting deadlines and reporting requirements. That he did likewise in relation to access to the Canvas system and changes to the SAC's schedule. That he sought assistance from both Ms Deleplanque and others, including Mr Nick Chester with the recording and filing of results and reports. That he requested the changes to the SAC schedule from Mr Miller, who authorised these changes. He maintains he sought approval for attendance at the excursions to Tosca consistent with his previous practice and the Respondent's requirements. He denies failing to action instructions to clean his work desk and maintains on each occasion he was asked to clean his space, he acted on items he was responsible for.

• [44] In terms of the marking concerns, he submits there have been no independent findings of teacher error by the VCAA against him and that the practices he has applied have been longstanding and have not previously been a cause of concerns in a 21-year history at the College. Furthermore, that he provided extensive feedback to students within class time on the SACs but had difficulty communicating with one vulnerable student because of the student's prolonged absence from class. Also, that he was not aware this student was considering their ongoing study of Latin until after he was dismissed.

• [45] Mr Murphy accepts that there were some delays in his meeting of deadlines for the filing of reports and providing SAC results to students. He submits that he has provided reasonable explanations for these delays. That he made every effort possible to make his students aware of the circumstances and provided them their results as soon as practically possible. His explanations include, health issues impacting his attendance at school and capacity to complete duties out of term; his period of unscheduled Jury service and difficulty completing reports because of the injury to his finger.

• [46] Finally, that he genuinely engaged in the conduct improvement program in 2023 and was supportive of it is continuing. Furthermore, that he was not provided any explanation why this would not be the case, or any formal response to his interim reflection.

• [47] Mr Murphy was not able to provide any additional witnesses to support his position in proceedings. He relies on his sworn statement and supporting material.

• [48] I accept the Applicant's evidence in relation to the allegations of not cleaning his desk area; failing to seek permission to go to Tosca or attend a meeting because of this; disadvantaging students or, a vulnerable student, because of a failure to teach or assess a significant part of an VCE study unit.

• [49] My assessment of this evidence does not lead me to a conclusion he was acting maliciously or negligently. The Respondent did not present direct evidence from Mr Miller, Ms Deleplanque or Mr Chester to refute Mr Murphy's version of events.

• [50] Ms Dalli gave direct evidence that Mr Murphy did not bring his issues, requests or failure to meet expectations to her attention. Further, that she wasn't made aware of any of these things by Ms Deleplanque, Mr Murphy's direct immediate report.

• [51] While I accept Ms Dalli's evidence, it does not follow that I accept Mr Murphy is not being truthful. In terms of credibility, I found his evidence to the Commission genuinely made.

• [52] Mr Murphy presses the case that there was not a valid reason for this termination because the conduct alleged was not of such a gravity as to justify his dismissal. Particularly, considering his period of long service and engagement in improving his performance.

• [53] Ultimately, I do not accept this to be the case.

• [54] Mr Muphy's own evidence is that he failed to complete and provide students with their completed Semester 2 results until well into term 3. That he provided his VCE Latin students with their SAC results around the same time, significantly late and well outside the 2-week time frame expected by the College. Further, he accepts there was one VCE Latin student who he did not provide his SAC results to at all.[20]

• [55] When pressed in cross-examination on what he understood the final warning he was provided with at the end of 2022 to mean, he accepted he understood he could be dismissed if his performance failed to improve.[21] It is evident that Mr Murphy was clearly put on notice and warned about his unsatisfactory performance and the consequences of this continuing in the future.

• [56] Despite this being the case, Mr Murphy's evidence of his level of engagement in the mentoring program with Mr Cumbo through 2023 is not convincing. Part of Mr Murphy's evidence of why this was the case, is because he was seeking legal advice from his Union about it. While Mr Murphy has this right, it does not diminish his obligation to genuinely participate in the mentoring and performance improvement plan during 2023. There is little evidence this was the case.

• [57] Mr Cumbo's evidence, which I accept, is that Mr Murphy showed little engagement with the plan or genuine effort to take the opportunity to reflect and improve from it. By Mr Murphy's own admission, he accepts it was not until December 2023 that he completed an interim reflection requested at the start of the program and due in July.

• [58] In this regard, I accept both Mr Doherty's and Mr Cumbo's evidence that from the College's perspective this was a genuine opportunity, constructed with intent to provide Mr Murphy the best possible opportunity to demonstrate improved performance.

• [59] I accept there are some anomalies in how the improvement plan came to an end, if and how this was communicated to Mr Murphy, and why he was not provided with the opportunity to continue with the plan through 2024. I also accept there were anomalies with the College's use of the words "performance plan" and "conduct improvement plan" that may have led to some confusion on Mr Murphy's part as to the status of his opportunity to improve and whether there was some prospect he could be provided another chance.

• [60] I have no doubt that at the start of 2024, Mr Murphy was on notice about his overall performance, communication style and conduct at the College. Also, that when he was given a final warning at the end of 2022 he understood, as he accepted in evidence, that he could be dismissed. As to the prospect of there being another chance, I do not accept there was any lack of clarity in Mr Doherty's multiple communications commencing from 2 August that the concerns identified by the Respondent were serious and, if substantiated, may lead to the termination of his employment.

• [61] I am not convinced Mr Murphy took this seriously. Certainly, the evidence does not suggest this to be the case. Rather, it appears he took a minimalist approach, absent any formal attempt to communicate directly with his superiors and head of learning areas - Ms Dalli and Ms Deleplanque. This included not responding to written directions.

• [62] As an experienced teacher with over 20 years' experience and an IEU representative, Mr Murphy ought to have known this would not be good enough. Further, he ought to have known it was certainly not demonstrative of someone with a commitment to improving their performance and having a long-term future at the college.

• [63] Mr Murphy accepts he was first made aware of the potential he may be selected for jury service in March 2024, yet did nothing to advise the Principal or Head of Languages until required for service at the start of term 3. He accepts he did not formally acknowledge or reply to Ms Dalli's written requests he clean up his desk space. Further, that he did not formally advise Mr Dalli or Ms Deleplanque of his decision to record a 'W' on the Semester 2 VCE Latin Student reports. And that he did not formally advise them of his delay returning the Semester 2 Latin SAC results.

• [64] I have accepted that Mr Murphy "may have" "in passing" advised Ms Deleplanque of his issues and delay. However, the consistent evidence of the Respondent is that it was not until Term 3 had started that the Respondent had any awareness of the delays impacting students in Mr Murphy's Latin class.

• [65] Faced with this reality, I accept the Respondent forming a view that what "may have" been done is not good enough. And further, that as an experienced teacher Mr Murphy ought to have known this to be the case. Based on this finding, I am satisfied that the failure of Mr Murphy to update to his managers why his VCE students where receiving significantly late results amounts to misconduct, providing a valid reason for the termination of his employment.

• [66] Overall, I have found Mr Murphy's level of engagement with the responsibilities of his role to his employer, the gravity of his position and the need for his performance to improve unconvincing. His inability to recall that he was provided dedicated support in the form of Ms McLardy as a buddy to help him meet marking deadlines is implausible. Similarly, it is implausible that he did not understand that Ms Dalli expected him to not only intermittently tidy his desk and work area when directed, but to consistently keep it tidy.

• [67] Moreover, the fact that Mr Murphy was unable to provide any convincing evidence that he had regard to the Respondent's obligations to mark within VCAA guidelines and could not identify a marking rubric within which he applied his marking duties counts against him.

• [68] Importantly, I accept that the VCAA's review did not find teacher error or make any negative findings against him. In this light, I am not convinced the marking concerns amount to a further valid reason for his dismissal.

• [69] However, the approach his evidence indicates he applied to marking VCE Latin remains a legitimate concern. His oral evidence that both Ms McLardy and Ms Deleplanque had prior visibility of his marking practices and did not raise any issues is also concerning. Such that confirming the consistent application of marking practices across the College against a transparent rubric would seem warranted.

• [70] My conclusion that the marking concerns do not provide a valid reason adds to the issues identified above regarding some confusion between "performance management" and "conduct improvement", along with my conclusion that all the allegations of misconduct against Mr Murphy cannot be sustained.

• [71] Despite this however, I have been satisfied Mr Murphy was on a final warning, and that he understood his conduct needed to improve or he could be dismissed. I have found he failed to follow or reply to lawful instructions to tidy his work area. Also, that he failed to make his direct relevant supervisors aware of delays in meeting reporting deadlines and returning SAC results to students within the expectations of the College as required.

• [72] Having made these findings, I am satisfied the employer was justified in reaching a conclusion there was a valid reason for terminating his employment.

• [73] In reaching this conclusion, I am guided by the authorities that it is not the place for the Commission to step into the shoes of the employer. Rather, the Commission's role is to make a finding on the balance of probabilities where the conduct alleged in fact occurred.

• [74] In the circumstances of this case, I am satisfied that significant proportions of the conduct alleged occurred, and amount to misconduct providing a valid reason for the College to bring the employment relationship to an end.

• [75] Whilst I am satisfied this is the case, it does not mean Mr Murphy's dismissal was still not harsh, and unreasonable. It is well established a dismissal can be reasonable but still be harsh or unjust.

• [76] Mr Murphy's alternative position is the Commission should draw this distinction in his case. The principal basis of this submission is twofold. Firstly, the substantiated level of misconduct against him is not significant enough to warrant termination given his length of service. Secondly, that the consequence of termination for him as a Latin Teacher with limited prospects of gaining suitable alternative employment count against a decision to terminate him not being harsh or unreasonable.

• [77] As to the suggestion that a long serving teacher found to have failed to adequately report SAC results to VCE students within the expected timeframe or even make the relevant supervisor aware of this failing, I do not accept these arguments have any weight. Rather, I consider the fact Mr Murphy was a teacher of significant experience counts against him in on this factor. He should, as he accepted in proceedings, have known better.

• [78] Furthermore, I have considered the evidence of Ms Murphy's engagement with his requirement to file his Semester 1 reports days before the deadline, after being prompted by Ms Dalli. This included reaching out to Mr Chester and seeking assistance at 12.03am. This evidence does little to portray him as a teacher who understood he was on a final warning and was diligently engaged in what was required of him.

• [79] In terms of the consequences of termination for Mr Murphy, I accept there is an element of harshness to the employer's decision. I do not accept this extends to his employment prospects in a State with a critical shortage of experienced teachers. However, the fact Mr Murphy's only employer to date has been the College, that he has a specialised skill set in teaching Latin and that the anomalies in his performance or conduct management may have led him to think he could still have another chance weigh in his favour.

• [80] This is not to suggest the employer did not wrestle with these considerations in reaching its conclusions. However, I am satisfied to the extent that there were anomalies in the employer's process and the impact of its decision, considering Mr Murphy's circumstances, that his termination was harsh and unjust. A conclusion to which I will return.

• [81] Despite this, I have been satisfied the College has identified substantiated grounds of misconduct on Mr Murphy's part. Further, I am satisfied that significant proportions of this conduct did occur. It follows that I am satisfied the College has provided a valid reason to bring Mr Murphy's employment to an end.

• [82] As I have found a valid reason for Mr Murphy's termination exists, this finding weighs against a finding he was unfairly dismissed.

s.387(b) Whether the person was notified of that reason

• [83] Proper consideration of s.387(b) requires a finding to be made as to whether the Applicant "was notified of that reason". Contextually, the reference to "that reason" is the valid reason found to exist under s.387(a).[22]

• [84] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,[23] in explicit,[24] plain and clear terms.[25]

• [85] As identified by the Full Bench in Crozier v Palazzo Corporation Pty Ltd:

"As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before a decision taken to terminate their employment in order to provided them an opportunity to respond to the reason identified."

• [86] I have set out above my satisfaction that Mr Murphy was made aware of the reasons for this dismissal. Variously, these were provided in the First and Second Notice of Concerns letters, the final warning he received at the end of 2022 along with Show Cause Letter of 27 August.

• [87] I accept Mr Murphy's submission that he was not formally made aware of the circumstances in relation to the vulnerable student or provided a proper opportunity to respond to these concerns. As I have not made a finding that allegations in relation to the marking concerns provide a further valid reason for this termination, I do not consider it necessary to take this into account.

• [88] I have been satisfied the allegations of Mr Murphy's misconduct and poor performance that provide a valid reason for his termination were clearly set out to him in the correspondence he received on 2 August and 27 August. I consider this fact clearly satisfies the requirement of this provisions. I consider this factor weighs in favour of the Respondent.

s.387(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

• [89] In this case, notwithstanding the marking concerns in relation to a vulnerable student, the evidence that Mr Murphy was provided multiple opportunities to respond to the reasons for his termination are clear.

• [90] On closer examination, however, two things appear unusual. First, at no time does Mr Murphy appear to acknowledge the seriousness of the allegations against him or reconcile with the reality his ongoing employment was at risk. Nor does he make any appeal on the grounds of his personal circumstances, length of service, or any other ground, not to be dismissed.

• [91] In the circumstances of this case, this evidence suggests he was either resigned to termination, or did not consider it to be a serious option. I do not consider the clarity of Mr Doherty's correspondence could lead Mr Murphy to any other conclusion but that he could be dismissed.

• [92] This reality draws me to the second anomaly. Following Mr Murphy's verbal response at the meeting on 20 August, it took Mr Doherty 7 days to form a view the allegations against him were substantiated to the extent they justified the termination of his employment. There was no follow-up meeting, no request to provide further information, or address anything arising from Mr Doherty's enquiries.

• [93] Rather, on 27 August, Mr Doherty provided Mr Murphy with a Show Cause letter seeking him to provide further information as to why his employment should not be terminated. At this stage, the decision to terminate had been made and it would only change if Mr Murphy provided Mr Doherty with a compelling case against termination.

• [94] When Mr Murphy sought to provide further information to support his position, it was reinforced to him that the allegations against him had already been substantiated. The only thing left to consider was should he be terminated, or not.

• [95] Faced with this reinforcement, I consider it plausible Mr Murphy concluded he was not going to get a fair hearing from Mr Doherty. That there was no point begging to be given another chance.

• [96] As a 21-year employee with a sense of personal pride and dignity that he conveyed in the witness box, I accept Mr Murphy was entitled to take this position. Furthermore, I consider as an employee of such tenure he was entitled to a more vigorous investigation into events that ultimately led to the termination of his employment. I note in correspondence that the IEU requested an independent investigation that was refused and that independent investigations had previously been conducted.

• [97] While this is not a necessary step, in this case Mr Doherty acknowledged the decision not to continue with Mr Murphy's performance improvement plan in 2024 was because of a perceived conflict with Mr Murphy's role as HSR. This being the case, it may have been prudent to appoint someone other than Mr Doherty as the investigator and decision maker with respect to Mr Murphy's employment.

• [98] I also accept the Respondent's use of the terms "performance management" and "conduct management" seemingly interchangeably may have somewhat confused Mr Murphy as to what needed to significantly improve - conduct, performance, or both.

• [99] While I have been satisfied there was a valid reason for Mr Murphy's employment to end, the way in which this has come about described above adds to my conclusion about the elements that are harsh and unjust in this decision that I will return to below.

• [100] It follows from the above, that I accept Mr Murphy was provided an opportunity to respond, but I do not consider this opportunity was adequate in the circumstances. I therefore consider this factor as neutral.

s.387(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

• [101] This factor is not relevant to the facts of this case as Mr Murphy's representation by his union, the IEU, was facilitated at every discussion relating to his dismissal.

s.387(e) If the dismissal related to unsatisfactory performance by the person‑ - whether the person had been warned about that unsatisfactory performance before the dismissal

• [102] I have considered this factor above and despite the anomalies identified, do not accept Mr Murphy was not warned or under any illusion he could be terminated if his conduct or performance failed to improve.

• [103] This factor weighs in favour of the Respondent.

s.387(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 s.387(g) - Whether the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise impacted on the procedures followed

• [104] The Respondent has not made any submissions on the size of its business or the absence of a dedicated human resource specialist. The Respondent is not a small business. It has dedicated human resources specialists. I consider this to be a neutral factor.

s.387(h) Any other matters that the FWC considers relevant

• [105] The provisions of s.387(h) requires the Commission to take into account any other matters it considers relevant. Both parties raised a series matters that are potentially relevant to my consideration under this provision.

• [106] For the Applicant, these include Mr Murphy's length of service, his overall employment record, anomalies identified in the College's processes, the significance of the termination decision given Mr Murphy's conduct, and its impact given his personal circumstances.

• [107] The Respondent identifies the potential impact of Mr Murphy's conduct on students, including at VCE level and one vulnerable student. The requirement of the College to conduct a VCE panel and provide a report to the VCAA, along with negative media reports associated with the College and the circumstances of Mr Murphy's dismissal.

• [108] In have considered each of these and other relevant matters.

• [109] I accept Mr Muphy had a long and significant period of successful service with the Respondent. He was regularly entrusted with the tuition of its students at senior levels, including VCE, indicating the level of competence and proficiency he applied to his work. I also have regard to Mr Murphy's limited employment history beyond the College and consider this to elevate the significance of a termination decision in his circumstances. I find these other factors weigh in his favour that his termination was harsh.

• [110] I consider the anomalies I have identified in the Respondent's processes similarly. Namely, the lack of clarity if he was being "performance managed" or having his "conduct managed". The failure to provide him an opportunity to respond to Mr Doherty's findings before a preliminary decision was made that termination was an appropriate course of action. And the failure to provide him feedback on his performance management interim reflections.

• [111] I am also not satisfied Mr Doherty ever "got back" to Mr Muphy as to the status of his performance management plan being formally discontinued in 2024. Mr Murphy's interim self-reflection on his performance and participation through 2023 indicates he was under the impression he was on track and meeting the expectations of the College.

• [112] While I have been satisfied this is not the case, I am not satisfied this reality was made clear to Mr Murphy by Mr Doherty until his correspondence on 2 August 2024. Consequently,

Mr Murphy did not have an opportunity to address any of these or other concerns before this time, as part of the performance management plan both he and Mr Cumbo agreed should continue in 2024.

• [113] These deficiencies add further weight in Mr Murphy's favour, and lead to my conclusion his termination was also unjust.

• [114] I have also not been satisfied that all the conduct that has been alleged against Mr Murphy amounts to conduct so serious or negligent that would warrant the termination of a 21-year relationship.

• [115] In addition to the above, these other factors weigh in Mr Murphy's favour that in the circumstances of his case, the termination of his employment was harsh and unjust.

• [116] Whether it was also unreasonable, however, is another matter. The Respondent's position is that Mr Murphy's termination was not harsh, unjust or unreasonable. I have considered the Respondent's evidence above and have been satisfied there was a valid reason for Mr Murphy's termination.

• [117] The other matters the Respondent draws my attention to reinforce the significance of Mr Murphy's role as a teacher and that of the College influencing young boys, and their families at a critical time of their life. Their position is that these factors and the impact of Mr Murphy's failings in this regard, strengthens the validity of the termination decision and should be weighed against him.

• [118] As to the reasonableness of the Respondent's decision, I accept this to be the case. I accept that there were valid reasons for Mr Murphy's employment to end, that these were put to him. I consider these factors support a conclusion that Mr Murphy was not unreasonably dismissed.

• [119] Considering all the circumstances of this case however, I do not consider this finding outweighs the conclusions I have reached above that Mr Murphy's dismissal was also harsh and unjust.

• [120] In reaching this conclusion, I consider the consequences of termination for Mr Murphy outweigh those of his misconduct with the Respondent. That there was no confirmed negative finding by the VCAA against the College or Mr Murphy. Whilst I have considered the impact on students and their families was real, absent direct evidence, I am unable to conclude if they have been disadvantaged or not.

• [121] In contrast, Mr Murphy has lost the only job he has had. I have also considered the Respondent's submissions opposing reinstatement, which I accept. This means, Mr Murphy will not be returning to the College.

• [122] For these reasons, I consider the other factors set out above weigh in favour of Mr Murphy, that his terminated was harsh and unjust.

• [123] I have determined that there was a valid reason for the dismissal.

• [124] I have been satisfied that Mr Murphy was notified of the valid reason for his dismissal prior to this decision being made.

• [125] I have not been fully satisfied Mr Murphy was given a proper opportunity to respond to any reason related to his capacity or conduct prior to the decision to termination his employment was made. I consider this to be a neutral factor.

• [126] There was no unreasonable refusal by Mr Murphy to a support person.

• [127] I am satisfied that there was relevant unsatisfactory work performance prior to the dismissal that was a contributing factor.

• [128] I do not consider that the size of the Respondent's business and the absence of employed dedicated human resource management was a relevant factor.

• [129] I have also had regard to the other matters I consider are appropriate and found the termination harsh and unjust, but not unreasonable.

• [130] On this basis, I am satisfied Mr Murphy was unfairly dismissed within the meaning of s.385 of the FW Act.

• [131] Having been satisfied that the Applicant:

• made an application for an order granting a remedy under s.394;

• was a person protected from unfair dismissal; and

• was unfairly dismissed within the meaning of s.385 of the Act;

I may, subject to the Act, order the Applicant's reinstatement, or the payment of compensation to the Applicant.

• [132] Under section 390(3) of the Act, I must not order the payment of compensation to the Applicant unless:

(a) the FWC is satisfied that reinstatement of the Applicant is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all of the circumstances of the case.

Is reinstatement of the Applicant inappropriate?

• [133] Mr Murphy seeks reinstatement, an order to maintain continuity and restore lost pay. In the alternative, compensation should reinstatement not be granted.

• [134] The Respondent is opposed to reinstatement and considers any order of compensation, if awarded, must be modest.

• [135] Considering all the circumstances in this case and the submissions of the parties, I do not consider reinstatement appropriate. Mr Murphy has been out of the workplace since September 2024. The circumstances of his departure were not without controversy. Moreover, I am satisfied a proportion of his conduct amounted to misconduct providing valid reasons for the termination of his employment. These conclusions support the Respondent's submissions that it has lost trust and confidence in Mr Murphy's capacity and competence to perform in his role.

• [136] I accept this to be the case. Therefore, I am satisfied reinstatement is not an appropriate remedy due to the breakdown of the employment relationship between the parties, which are beyond repair.

Is an order for payment of compensation appropriate in all the circumstances of the matter?

• [137] Having determined that reinstatement is not appropriate, it does not automatically follow that a payment for compensation is appropriate. As noted by the Full Bench:

"[t]he question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one..."[26]

• [138] Where an Applicant has suffered financial loss as a result of the dismissal, this may be a relevant consideration in the exercise of this discretion.[27]

• [139] Mr Murphy submits that had he not been dismissed he would have continued to work for the Respondent for another 15 years. That he has not been able to secure comparable alternative employment since his termination, despite attempts. On this basis, I am satisfied that the Applicant has incurred financial loss in the period since his termination and that some compensation is appropriate.

Compensation - what must be taken into account in determining an amount?

• [140] Section 392(2) of the Act requires all the circumstances of the case to be taken into account when determining an amount to be paid as compensation to the Applicant in lieu of reinstatement including:

(a) the effect of the order on the viability of the 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.

• [141] After the conclusion of the hearing, I invited both parties to address this criteria and sought additional submissions. Considering all the circumstances of this case, the evidence before me and the additional submissions, I am satisfied I can form a view as to compensation and consider each of these criteria below.

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

• [142] I do not have any evidence before me that would indicate that an order for compensation would have an effect on the viability of the employer's enterprise. I have, therefore, regarded this as a neutral factor in the calculation of compensation.

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

• [143] Mr Murphy worked a period of 21 years with the Respondent, commencing in 2003.

• [144] I consider that the Applicant's length of service supports increasing the amount of compensation ordered in the circumstances.

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

• [145] As stated by a majority of the Full Court of the Federal Court:

"...in determining the remuneration that the Applicant would have received, or would have been likely to receive.... the Commission must address itself to the question whether, if the actual termination has 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 the likelihood of a further termination in order to be able to assess the amount of renumeration the employee would have received, or would have been likely to receive, if there had not been the actual termination".[28]

• [146] In the present circumstances, the Applicant's evidence is that he would have continued in his employment for another 15 years. The evidence before me is that while Mr Murphy had a tough year in 2024. His employer had justified and serious concerns about his overall attitude, conduct and performance. They submit he had been provided multiple previous opportunities to improve, but failed to do so, culminating in the action initiated on 2 August.

• [147] While I have identified anomalies in the way the Respondent dealt with its concerns with Mr Murphy, I am not satisfied the evidence supports Mr Murphy's submissions that he would have continued in employment for another 15 years.

• [148] On the contrary, the evidence in this case is that the Respondent had serious concerns it was entitled to act on in relation to Mr Murphy's conduct, attitude and performance. Despite being provided the opportunity to proactively engage in a mentoring and improvement program in 2023, the evidence does not suggest Mr Murphy seriously engaged with this opportunity.

• [149] Even if Mr Murphy had been provided the opportunity to continue the performance management plan through 2024, I am satisfied on the evidence that it would have been more likely than not his employer would have taken steps to bring his employment to an end at the conclusion of the 2024 school year.

• [150] This timeframe would have provided an opportunity for the Respondent to address any anomalies with its investigation report, independent or otherwise, and make its decision. I am satisfied this would have been the case. I am not convinced the evidence supports a conclusion that Mr Murphy would have improved his conduct, performance or otherwise met the expectations required of him.

• [151] On this basis, I consider the 14-week period between 4 September 2024 and 11 December 2024 as the 'anticipated period of employment'.[29]

• [152] It is not disputed Mr Murphy was paid a weekly wage of $2,510.25 per week, plus superannuation. I estimate his total gross earnings for the period 4 September 2024 to 11 December 2024 would have equated to $35,143.5 gross, plus superannuation contributions.

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

• [153] In the circumstances of this case, the Respondent does not accept Mr Murphy has taken steps to mitigate his loss. Mr Murphy submits this is in fact the case and he has only managed to find insecure, not comparable, work since termination. He has provided evidence of marking and tutoring work amounting to $3,673.00 that he had completed prior to the Hearing but has still not been paid. He has earnt a further $6,000.00 for tutoring work since the hearing on 10 February 2025.

• [154] Given the time of year of Mr Murphy's dismissal, I accept Mr Murphy's submissions he has attempted to mitigate his loss but has had difficulty finding alternative comparable employment during the relevant 'anticipated period' of employment.

(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

• [155] Mr Murphy's evidence is that he has earnt a total of $9,673.00 since his dismissal - $3,763.00 of which he has not yet been paid, and $6,000.00 of which was earnt after 10 February 2025. It is not disputed he was paid 5 weeks' pay in lieu of notice on termination, a sum of $12,551.25, plus superannuation of $1433.39.

(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

• [156] I have found the anticipated period of employment would have ended on 11 December 2024. There is no evidence presented of the Applicant's earnings between the time of making the order and the actual compensation, therefore, I consider this a neutral factor.

"[t]he well established approach to the assessment of compensation under s.392 of the FW Act ... is to apply the 'Sprigg formula' derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul's Licenced Festival Supermarket (Sprigg). This approach was articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages".[30]

• [158] The approach in Sprigg is as follows:

Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).

Step 2: Deduct monies earned since termination. Workers' compensation payments are deducted but not social security payments. The failure 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.

• [159] I have estimated that Mr Murphy would have remained employed until 11 December 2024.

• [160] The remuneration Mr Murphy would have received, or have been likely to have received, from his dismissal on 4 September 2024 to 11 December 2024 equals to an amount of $35,143.5 gross, plus superannuation contributions.

• [161] Only monies earned since termination for the anticipated period of employment are to be deducted.[31] Mr Murphy was paid 5 weeks' notice on termination, amounting to a payment of $12,551.25. This calculation of $35,143.5 less $12,551.25 leaves an amount of $22,591.98. He earnt a further $3,763.00 from tutoring an exam at the end of the 2024 school year, but has not yet been paid this amount. This calculation of $22,591.98 less $3,763.00 leaves an amount of $18,828.00.

• [162] I now need to consider the impact of contingencies on the amounts likely to be earned by Mr Murphy for the remainder of the anticipated period of employment.[32]

• [163] I have already determined Mr Murphy's earnings during the anticipated employment period. Therefore, I do not need to make a deduction for contingencies.

• [164] I have considered the impact of taxation but have elected to settle a gross amount of $18,828.00, plus superannuation.

Compensation - is the amount to be reduced on amount of misconduct?

• [165] If I am satisfied that misconduct of the Applicant contributed to the employer's decision to dismiss, I am obliged by s.392(3) of the Act to reduce the amount I would otherwise order by an appropriate amount on account of the misconduct.

• [166] In this case I have been satisfied that the conduct of Mr Murphy, including not following directions and failing to report to his supervisors, contributed to the valid reasons his employer had to terminate his employment.

• [167] Had it not been for these failing his employer would have had no cause to act. I have considered Mr Murphy's reasons for either failing to advise Ms Dalli or Ms Deleplanque because he advised Mr Miller, or that he was ill, had jury duty, was on leave, or struggled to type.

• [168] I do not consider these "reasons" provide an adequate justification of his failings. I have also considered while on their own they may be at the lower end, when considered in context - including his pervious warning, final warning and failure to engage with the performance management plan, they have a heightened degree of significance that provide a valid reason for his termination.

• [169] In these circumstances, as I have been satisfied of misconduct on Mr Murphy's part, I am obliged to reduce the amount of compensation. Taking Mr Murphy's length of service into account I consider that a reduction of 25% is appropriate in the circumstances of this case.

Compensation - how does the compensation cap apply?

• [170] Section 392(5) of the Act provides that the amount of compensation ordered by the Commission must not exceed the lesser of:

(b) half the amount of the high income threshold immediately before the dismissal.

• [171] Section 392(6) of the Act provides:

(whichever is the higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal.

• [172] Given Mr Murphy's weekly earnings were $2,510.25, a compensation cap of $65,266.5 applies in accordance with s.392(6) of the Act.

• [173] Having applied the formula in Sprigg, I am nevertheless required to ensure that "the level of compensation is an amount that is considered appropriate have regard to all the circumstances of the case".[33]

• [174] The application of the Sprigg formula has resulted in an outcome where Mr Murphy would be awarded a gross compensation amount of $14,121.00, plus superannuation. I am satisfied that Mr Murphy has suffered loss because of his dismissal and not yet returning to comparable alternative employment. He has been out of comparable full-time work since September 2024. Considering all the circumstances of this case, I am satisfied this is an appropriate amount of compensation.

• [175] Taking all the circumstances of the matter before me into account, I am satisfied this is appropriate. The total amount of compensation I have determined payable to Mr Murphy is therefore, $14,121.00 plus superannuation.

• [176] Accordingly, I am satisfied the amount of compensation that I have determined above takes into account all the circumstances of the case as required by s.392(2) of the Act.

• [177] Given my findings above, an order [PR787139] will be issued requiring the Respondent to pay the Applicant in this matter the amount of $14,121.00 less taxation as required by law, plus superannuation of $1,623.92, to be paid into the Applicant's nominated fund, with both payments to be made within 14 days of the date of this decision.

[1] Briginshaw v Briginshaw [1938] HCA 34, Qantas Airways Limited v Cornwall [1998] FCA 865.

[2] Applicant's outline of submissions, Court Book pages 5 - 7.

[3] Loty and Holloway v Australian Workers Union [1971] AR (NSW) 95; s.381(2)(c) of the FW Act.

[4] Michelle de Leon v Spice Temple Pty Ltd [2010] FWA 3497.

[5] Applicant's outline of submissions, Court Book pages 7 - 12.

[6] Statement of Andrew Murphy, Court Book pages 13 - 24.

[9] Elizabeth Naden v Catholic Schools Broken Bay Limited as Trustee for the Catholic Schools Broken Bay Trust [2025] FWC 317.

[10] Closing submissions for the Respondent filed 24 February 2025.

[11] See Australian Hearing v Peary [2009] AIRCFB at [39].

[13] Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 at [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB Ross VP, Lacy SDP, Simmonds C, 21 March 2002, at [69].

[14] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371 at [373].

[16] Walton v Mermaid Dry Cleaners Pty Ltd [1996] IRCA 267; (1996) 142 ALR 681 at [685].

[17] Edwards v Justice Giudice [1999] FCA 1836 at [7].

[18] King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) at [23]-[24].

[19] [2020] FWC 2989.

[20] See Transcript of Proceedings on 10 February 2024 at [PN113] - [PN645].

[22] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429 at [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533 at [55].

[23] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [151].

[24] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).

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

[27] Vennix v Mayfield Childcare Ltd [2020] FWCFB 550 at [20]; Jeffery v IBM Australia Ltd [2015] FWCFB 4171 at [5]- [7].

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

[29] Ellawala v Australian Postal Corporation Print S5109 (AIRCFB Ross VP, Williams SDP, Gay C, 17 April 2000) at [34].

[30] [2013] FWCFB 431.

[31] Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFC 7206 at [19].

[32] Enhance Systems Pty Ltd v Cox PR910779 (AIRCFB, Williams SDP, Action SDP, Gay C, 31 October 2001) at [39].

[33] Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFC 7206 at [17]-[19].

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