Mr Dowden was standing next to the Applicant and appeared to be backing him up. He didn't say anything or attempt to break up the argument. I got the impression that he was supporting the Applicant.

The Applicant stood his ground and continued to argue. I just wanted to finalise my post journey inspection and get out of there. At no stage did the Applicant back off or attempt to retreat.

I repeatedly told the Applicant to walk away three times. On the third occasion, he punched me in the face with a closed fist, hitting the left side of my jaw. The impact caused me to fall onto the bulbar of my truck and then onto the ground.

The punch surprised me as our argument was purely verbal at that stage. The punch had considerable force as it knocked me back and I fell over.

At no stage did I punch or threaten to punch the Applicant.

I have no recollection of the Applicant counting to three.

While I was on the floor, completely vulnerable, the Applicant put me in chokehold and began dragging me away from my truck.

At this stage Mr Dowden also involved himself and grabbed my right arm and started pulling me in the opposite direction. It felt like I was a ragdoll.

This moment was terrifying for me. The Applicant had his arm around my neck, and I was genuinely scared that he would choke me out as I was struggling to breath.

Instead of telling the Applicant to stop or trying to get him off me Mr Dowden actively joined in on the unprovoked attack.

At one point, the Applicant asked me "Have you calmed down". I was still scared but answered "yes" in the hope that he would stop. As the Applicant and Mr Dowden were both attacking me it felt like I had no other option.

Following this he let me go and I stood up. He continued to shout at me and kept pointing in an intimidating way at my chest. I walked away at this point.

I immediately called my supervisor Mr Hayden Goodwin and reported the incident to him.

Shortly after this call I was picked up by my other supervisor, Mr Ben McKay, who took me back to the yard."

• [58] Under cross-examination, Mr Tsoukalas did not agree that the conversation between him and Mr Davis went on for a lot longer than the video. Under questioning from Mr Davis, his account was:

"I did get out of the truck. We were in a verbal heated argument. I did state to you to walk away three times, which is then when you have punched me with a closed fist, to the left hand side of my face, which has caused me to fall over and hit the bull bar, fall onto the ground, and then you have decided to put me in a choke hold, and drag me away from the vehicle."

• [59] Mr Tsoukalas agreed he had threatened Mr Davis afterwards, but said, "could you blame me?" He maintained Mr Davis had not counted to three. He said Mr Davis had raised his fingers, but had not stood back.

• [60] Mr Tsoukalas maintained Mr Dowden had grabbed his right arm, and that he felt like a rag doll. He did not accept Mr Dowden was trying to help him up. He said he was disorientated.

• [61] Mr Hess, Maintenance Manager for Odell, provided with his statement footage that he had taken on his phone camera. The footage ran for 1 minute and 49 seconds (109 seconds). It was a video of a screen playing video footage, which was from a front-mounted camera on the vehicle that Mr Tsoukalas had been driving. The altercation had taken place in front of that vehicle. The footage had been captured via that front-mounted camera between 6.22 am and 6.24 am on 18 September 2024.

• [62] During the course of these proceedings Mr Davis had obtained an order for production of "the original video file ... with sufficient duration to include events two (2) minutes prior to the supplied footage." Odell had responded that it had no such document or record in its possession, power or control.

• [63] In his statement Mr Hess said that Odell is required by the Main Roads Department to have In-Vehicle Monitoring Systems as part of their Heavy Vehicle Accreditation.[23] He said he is able to access the footage from a web-based server by searching for footage from time packets which are up to 180 second packets.[24] The system overwrites itself every 24 hours and Odell cannot access previous footage once this occurs.[25]

• [64] Mr Hess said he was able to identify a packet between 6:22 am to 6:24 am from the vehicle's front-mounted camera, and that this packet captured the altercation. He says he reviewed the other cameras and packets but no other footage of the individuals was captured. He said he tried to download and send the file, but it did not work, and he could not email the footage, so he took a video of the footage on his phone and sent it to Mr Dryland.[26]

• [65] Mr Hess explained that he had taken this approach - using his phone camera to video a video - because he had been unable to download the original. Under cross-examination he said that he had been unable to do so because the vehicle was physically distant from where he was, and because downloading footage from the vehicle's cameras was not a simple matter of removing an SD card but instead would require a specialised technician. I accept that this is plausible as it would not be a robust regulatory system if anyone, driver included, could remove the SD card from the vehicle. Mr Dryland said the SD card is only removed if there is a serious incident, such as a truck rolling over. Mr Davis put to him that on the employer's argument that this was an assault, it was a serious incident, and that it was serious for him because he was dismissed. Mr Dryland said the only time you take it out is if a truck's rolling over, if it's burning down, or if it's damaged. And he said as far as they were concerned they gained the relevant video footage that was required.

• [66] Mr Hess's statement said the cameras videoed in a cycle, one at a time, not all at once. He said that the lead up to the incident was not captured by the front facing camera as the other cameras were in operation at the time, and as they were rear-facing they did not capture any footage of the individuals.[27] Under cross-examination, though, Mr Hess contradicted his written statement. He said that the assertion in his statement that "the three cameras are not continuously recording all at once" was incorrect. He said that each of the three video cameras - one front-mounted, and two rear-mounted - on Mr Tsoukalas's vehicle had continuously taken video in 180-second packets.

• [67] Under cross-examination Mr Hess said he had looked at the video packet prior to the video provided, and had gone back "two or three hours." He said that what was provided was all that the forward-facing camera had picked up. He said the only footage with people in it was between 6.22 am and 6.24 am. Mr Davis asked him if the three people had just appeared in the frame, and Mr Hess said they had.

• [68] This is difficult to accept. If, as Mr Hess now said, the camera had been recording continuously it is doubtful that the three of them appeared in the middle of the shot between frames. At the commencement of the video the three of them were in the centre-third of the frame. We do not know what happened in the video immediately beforehand, or why the video was only 109 seconds long. Mr Davis's argument is that the period immediately before this footage would have shown him trying to de-escalate the situation.

• [69] Unsurprisingly given it was a video of a video, the footage was very low quality. Watching the video, it is difficult to tell what was happening. Faces and hands cannot be made out. There is no sound. The footage is shot in portrait orientation. Mr Davis and Mr Dowden had different interpretations of what the footage showed. The following is my own review of the footage.

00:00 The three men are in the centre-third of the frame, both horizontally and vertically. Mr Tsoukalas has his back to the camera and Mr Davis and Mr Dowden are facing the camera. The footage zooms in rapidly so that the three of them take up the whole of the bottom half of the frame.

00:01-00:02 Mr Tsoukalas takes a step towards Mr Davis. Mr Dowden is standing behind Mr Davis's left shoulder. Almost all of Mr Tsoukalas' left arm, and his hand are obscured by his body and what appears to be the front of the truck. The top of his shoulder, extending about ten centimetres down his arm, can be seen from the back.

00:06-00:09 Mr Davis drops his arm and takes a step back.

00:11 Mr Tsoukalas's right elbow moves in front of his body and out of view. At the same time, Mr Davis tilts his head back and brings his right arm down.

00:12 Mr Tsoukalas's right elbow is back in view. His left arm and hand are still obscured. Mr Davis is leaned slightly left, so that his head can be seen over Mr Tsoukalas's right shoulder.

00:13 Mr Davis crouches slightly and then hits Mr Tsoukalas in the face with what looks like a heavy right cross. Mr Tsoukalas falls to the ground. Mr Bowden takes a step back.

00:15 Mr Davis steps forward and to his right, out of the frame.

00:16 - 00:20 Mr Dowden walks towards where Mr Tsoukalas had fallen.

00:21-00:23 Mr Davis emerges into the frame, standing up and appearing to lift Mr Tsoukalas. They move out of the right side of the frame. It is not clear but they then appear to be down on the ground again.

00:24-00:45 Mr Dowden walks towards Mr Tsoukalas and appears to bend slightly to lean over Mr Tsoukalas. It is not possible to tell whether Mr Dowden is holding or even touching Mr Tsoukalas or Mr Davis, but at the least his arms are both down towards them. Mr Dowden continues to lean over Mr Tsoukalas with his arms down, without taking any steps back.

00:45-00:46 Mr Dowden moves his arms away from or releases Mr Tsoukalas and takes a couple of steps backwards.

00:51- 01:24 Mr Davis comes back into view, at the right side of the frame. Mr Tsoukalas moves towards Mr Davis and stands in front of him. They appear to be talking. At 1:06, Mr Dowden turns and leaves the frame.

01:25-01:26 Mr Tsoukalas walks out of the frame, to his right. Mr Davis does not move.

01:27-01:44 Mr Tsoukalas comes back into the frame, bends down to pick something up, then stands up to face Mr Davis again. They appear to be talking.

01:45-01:49 Mr Dowden re-enters the left side of the frame and bends over to pick something up. Mr Davis looks down at him, and Mr Tsoukalas tilts his left shoulder back and down, and half turns, to look down at Mr Dowden as well.

• [70] Mr Davis is in his sixties, decades older than Mr Tsoukalas. On the video Mr Tsoukalas appeared taller than Mr Davis.

• [71] Mr Davis said he had a head injury in 1990 and was in a coma as a consequence, and that that had left him with a fragile frontal cranium. He said he was constantly aware that a blow to the face could kill him or leave him with paralysis or a severe brain injury.[28] Odell said that no medical evidence had been provided in that regard, and that no such vulnerability had been picked up in Mr Davis's pre-employment medical checks, of which it provided copies.[29]

• [72] I accept that Mr Davis spoke to Mr Tsoukalas calmly when Mr Tsoukalas got out of his truck. I accept that Mr Davis was offering unsolicited criticism to Mr Tsoukalas, despite not being Mr Tsoukalas's supervisor. I accept that Mr Tsoukalas reacted angrily to that, telling Mr Davis off. I accept Mr Tsoukalas was heated and Mr Davis was calm. It is clear enough from the video that Mr Davis was backing up and Mr Tsoukalas was stepping up to him, before the punch.

• [73] If Mr Davis was trying to de-escalate by counting to three, his actions likely had the opposite effect. If Mr Tsoukalas was telling Mr Davis to walk away, this also likely had the opposite effect of Mr Davis not backing down.

• [74] As to whether Mr Tsoukalas closed his fist, raised his first, or attempted a punch, the three witnesses gave three different accounts and all of them seemed to be recounting their genuine recollection. I found all of them forthright and I accept they were truthfully recounting their recollection of the events. The video shed no light on the matter given Mr Tsoukalas' left arm was almost wholly obscured, and his left hand was wholly obscured. Having regard to Mr Davis and Mr Dowden's evidence I accept Mr Tsoukalas at least closed his fist. I do not find that Mr Tsoukalas actually attempted an uppercut. Mr Tsoukalas's evidence was that he did not punch or threaten to punch Mr Davis. I accept that too and I do not consider this to be inconsistent with the previous finding, as a person may well not believe that by just closing his fist he is threatening a punch.

• [75] I accept that Mr Davis thought Mr Tsoukalas was about to attempt a left uppercut, and that that prompted Mr Davis's right cross. He had reasonable grounds for this given he had been backing away and Mr Tsoukalas had been stepping towards him, had been telling him off and swearing in a heated manner, and, at least, closed his fist. I accept that Mr Davis was afraid of being punched.

• [76] It is not in contest that Mr Tsoukalas fell when punched, and hit the bullbar. It is not in contest that Mr Davis put Mr Tsoukalas into a chokehold or sleeper hold, however described. It is rational to try to subdue a person who you believe you just punched in self-defence, especially if that person is much younger than you, and taller.

• [77] I accept that being punched, falling, hitting the bullbar and then being put into a chokehold or sleeper hold was terrifying for Mr Tsoukalas. His conduct after getting up is readily explainable. His concession that he threatened Mr Davis after he got up reinforced my impression that he was a forthright and truthful witness.

• [78] I accept Mr Dowden thought he was trying to de-escalate the chokehold and that he told Mr Davis he was choking Mr Tsoukalas. I accept that Mr Tsoukalas thought that Mr Dowden was helping Mr Davis.

• [79] From the video, the chokehold or sleeper hold appears to have lasted around twenty seconds. Both men were scared and I do not find that Mr Davis was deliberately trying to cause more harm to Mr Tsoukalas than was necessary to protect himself. But twenty seconds is a long time.

• [80] Having regard to the matters I have referred to above, on balance, I find that there was a valid reason for the dismissal related to the Applicant's conduct. The punch was, from Mr Davis's perspective, an act of self-defence. The chokehold or sleeper hold was rational for the reasons stated above. Even if Mr Davis had not been acting in self-defence, Mr Tsoukalas was a younger, taller man who had been getting in Mr Davis's face in a disproportionate and heated response to Mr Davis's criticism of his driving. This was provocation or at least mitigating circumstances. But the length of the chokehold or sleeper hold made it excessive, giving rise to a valid reason in relation to conduct, arising from the altercation.

Was the Applicant notified of the valid reason?

• [81] 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).[30]

• [82] 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,[31] and in explicit[32] and plain and clear terms.[33] Odell met these requirements by its show cause letter dated 23 September 2024.[34]

Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?

• [83] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct. An opportunity to respond is to be provided before a decision is taken to terminate the employee's employment.[35]

• [84] The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly.[36] Where the employee is aware of the precise nature of the employer's concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.[37]

• [85] It was common ground that Mr Davis provided a statement after the altercation, which he signed on 19 September 2024. The statement signed on 19 September 2024 was typed. Mr Davis said he had also provided a handwritten statement, but did not know what had become of it. The handwritten statement was not before me.

• [86] Mr Dryland conceded he had spoken to Mr Tsoukalas about the incident after it had occurred, but at that point had relied only on Mr Davis's written statement, rather than speaking to him as well. He also agreed he had not interviewed Mr Dowden.

• [87] Mr Dryland accepted that Mr Davis was suspended from duty, while Mr Tsoukalas was not. He said this was because they had not been in a fight, but instead Mr Davis had assaulted Mr Tsoukalas. This suggests a degree of prejudgement.

• [88] It was also common ground that a show cause letter was provided on 23 September 2024, and that the letter required a response by the following day. 23 September 2024 was a public holiday in Western Australia.

• [89] The parties are in dispute as to whether Odell provided the correct flight details for Mr Davis to travel from Leonora to Perth that day, whether the details were provided by email or by telephone call, and whether Mr Davis refused to get on the flight. But it was common ground that Mr Davis missed the flight, and was, at some later point, driven from Leonora to Perth, a nine-hour drive. It was in dispute whether Mr Davis was entitled to have Odell pay for his flight from Perth to home, but it was common ground that he had to make his own arrangements to get to Queensland at his own expense.

• [90] Mr Dryland and Mr Davis both said that Mr Davis asked for an extension on 23 September. Mr Davis said the timeframe did not give him time to get legal advice.[38] Mr Dryland said that he declined it on the basis that Mr Davis was aware of the nature of the show cause and had previously provided a statement, and Mr Davis was not working on 23 September so he had over a full day to prepare his response. Mr Davis said that he spoke to Mr Dryland by phone about the extension. He said Mr Dryland had told him he should have thought about that before he struck Mr Tsoukalas, and that it was a public holiday and he never had time for this (expletive) shit.[39] Odell did not put on any evidence contradicting this. Under cross-examination Mr Dryland agreed he had said "it's a public holiday" and he didn't "need this fucking shit," but then said he did not think that was exactly what he had said, but agreed he had used profanity.

• [91] Mr Dryland says he received no substantive response from Mr Davis.

• [92] The time given for response was very short. The time was curtailed because Mr Davis spent time going on a long car trip, and trying to make alternative travel arrangements, over the course of those two days. Mr Davis's flight records show he arrived in Brisbane at 12:10 pm on Wednesday 25 September, after a stop in Melbourne at 10 am that same day. In all the circumstances, including that 23 September was a public holiday, and Mr Davis's travel, it was not reasonable for Mr Dryland to refuse the extension. This militates against a finding that Mr Davis had a full or proper opportunity to respond.

Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?

• [93] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.

• [94] There is no positive obligation on an employer to offer an employee the opportunity to have a support person. The Explanatory Memorandum to the Fair Work Bill 2008 referred to this consideration as follows:[40]

"This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them."

• [95] There was no evidence of any request, or any refusal of any request, for Mr Davis to have a support person at the meeting that occurred with the Haulage Supervisor after the altercation, or for the purposes of any phone exchanges with Mr Dryland.

• [96] In all the circumstances, I find that the Respondent did not unreasonably refuse to allow the Applicant to have a support person present at discussions relating to the dismissal.

Was the Applicant warned about unsatisfactory performance before the dismissal?

• [97] As the dismissal did not relate to unsatisfactory performance, this consideration does not arise, and does not weigh in support of or against a finding that the dismissal was harsh, unjust, or unreasonable.

Size of the enterprise, and dedicated human resource management specialists or expertise - effect on procedures

• [98] Where an employer is substantial and has dedicated human resources personnel and access to legal advice, there will likely be no reason for it not to follow fair procedures.[41]

• [99] It was common ground between the parties that Odell had one hundred or more employees. It was not established, on the evidence, whether the Respondent had, or lacked, dedicated human resource management specialists or expertise. The Respondent was legally represented in these proceedings. I infer that a resources company that size would have access to at least some internal or external advice.

• [100] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.

• [101] Mr Davis says Odell deducted approximately $1600 from Mr Davis's final pay, for the cost of the flight from Wiluna mine to Perth, which as stated above he did not take as he had received incorrect travel information. Odell denies this. It attached a copy of the final payslip to its Response, but did not seek to adduce it into the evidence. Mr Davis also did not include his final payslip in his evidence. In the absence of this document I am not persuaded there was an unauthorised deduction from Mr Davis's pay.

• [102] Mr Davis's employment contract provided that Odell would cover costs of flights to and from his hometown,[42] not just to and from Perth. Mr Davis confirmed he believed he was entitled to have the cost covered, while giving his evidence. Under cross-examination Mr Dryland stated the contract had been varied. Odell did not put forward any other evidence of this. Odell did not fund the flight home, but left Mr Davis to arrange his own flight home from Perth. He was still in transit at the point at which Odell sent him the termination letter[43] on 25 September 2024. The contract is clear on its face and I am not satisfied it has been varied to remove Odell's obligation to fund flights to Mr Davis's hometown. The failure to do so in the period between the issue of the show cause notice and Mr Davis's termination militate in favour of a finding of unreasonableness.

• [103] It was common ground that Mr Davis had no history of violence or misconduct while working for Odell.

• [104] The Respondent cross-examined Mr Davis about his criminal record, which included a conviction from sixteen years before this altercation. Mr Davis said that conviction related to a failure to provide for his daughter. He said he now lived with that same daughter. This conviction was not relevant to the matters before me.

• [105] Mr Davis had worked for Odell for less than two years.

Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?

• [106] Findings have been made, as set out above, in relation to each matter specified in section 387 of the Fair Work Act. The Commission must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[44]

• [107] Odell submitted the Commission should be guided by the decisions in Turvey v Roverworth Pty Ltd[45] and Sheridan v Health Secretary.[46] Neither decision is binding. Each is persuasive. Each turned on its own facts. The task before the Commission in this matter is to take into account the factual matrix and weigh each of the considerations set out in section 387 of the Fair Work Act.

• [108] Having considered each of the matters specified in section 387 of the Fair Work Act, I am satisfied that the dismissal of the Applicant was harsh, unjust, and unreasonable, having regard to the facts of the altercation, the deficiencies as to the opportunity to respond, Mr Davis's otherwise clean record, the failure to meet the employer's obligations as to travel in the intervening period between the show cause and the termination, and the summary nature of the dismissal.

• [109] Being satisfied that the Applicant made an application for an order granting a remedy under section 394 of the Fair Work Act, was a person protected from unfair dismissal, and was unfairly dismissed within the meaning of section 385, the Commission may, subject to the Fair Work Act, order the Applicant's reinstatement, or the payment of compensation to the Applicant.

• [110] Under section 390(3) of the Fair Work Act, the Commission must not order the payment of compensation to the Applicant unless the Commission is satisfied that reinstatement of the Applicant is inappropriate, and the Commission considers an order for payment of compensation is appropriate in all the circumstances of the case.

• [111] Mr Davis says there is no vacancy with his former employer.[47] The employer did not say otherwise. I consider that reinstatement is inappropriate. I will now consider whether a payment for compensation is appropriate in all the circumstances.

• [112] Having found that reinstatement is inappropriate, it does not automatically follow that a payment for compensation is appropriate. A Full Bench has stated that "[t]he question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one..."[48] and so the issue of whether the discretion should be exercised in favour of granting compensation will now be considered.

• [113] 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.[49]

• [114] In all the circumstances, I consider that an order for payment of compensation is appropriate in light of the loss that Mr Davis suffered.

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

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

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

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

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

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

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

• [116] There is no evidence before me to indicate that an order for compensation would affect the viability of the employer's enterprise. This consideration is neutral.

• [117] The Applicant's length of service was less than two years.

• [118] I consider that the Applicant's length of service does not support reducing or increasing the amount of compensation ordered, though it could affect the remuneration that Mr Davis would have received if he had not been dismissed.

• [119] As stated by a majority of the Full Court of the Federal Court, "[i]n determining the remuneration that the Applicant would have received, or would have been likely to receive... the Commission must address itself to the question whether, if the actual termination had not occurred, the employment would have been likely to continue, or would have been terminated at some time by another means. It is necessary for the Commission to make a finding of fact as to the likelihood of a further termination, in order to be able to assess the amount of remuneration the employee would have received, or would have been likely to receive, if there had not been the actual termination."[50]

• [120] I have found there was a valid reason for termination. In the circumstances if Odell had dealt with the matter more prudently, it is likely that Mr Davis would have been dismissed on a date on or around 2 October 2024. Taking into account the factual matrix set out above I consider he most likely would have been dismissed summarily.

• [121] The Applicant must provide evidence that they have taken reasonable steps to minimise the impact of the dismissal.[51] What is reasonable depends on the circumstances of the case.[52]

• [122] Mr Davis said "I have been traumatised by these events and have not been in a state of mind to apply for another job." Odell submitted and I accept that Mr Davis had taken no steps to mitigate his loss.

• [123] There is no evidence of any earnings from employment or other work since the dismissal.

• [124] Given the matters set out above this issue does not weigh in favour or against reducing the amount of compensation.

• [125] The cost of the flight from Perth to Brisbane was not incurred after the dismissal. Even if Mr Davis had been employed for a further period as described above, he would likely still have flown back to Brisbane prior to termination. Whether or not Mr Davis might have a remedy in contract, I do not consider this loss appropriate to be compensated in these proceedings.

• [126] Mr Davis has also indicated he wishes to be compensated for fees he paid to a paid agent in connection with filing his application. This loss will also not form part of the compensation in these proceedings. If Mr Davis wishes to make an application for costs, he is not prevented from doing so. As he was self-represented in these proceedings, it is noted that he should have regard to the relevant provisions of the Fair Work Act and the material freely and publicly available about those provisions' operation, including in the Fair Work Commission's unfair dismissals benchbook.

• [127] The established approach to assessing compensation in unfair dismissal cases was set out in Sprigg v Paul Licensed Festival Supermarket ("Sprigg")[53] and applied and elaborated upon in the context of the current Act by Full Benches of the Commission in a number of cases,[54] 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.

• [128] Mr Davis said he was paid $50 per hour, and worked a minimum of 72, and a maximum 84, hours per week.[55] This was consistent with his employment contract which provided that shifts may be up to 12 hours in duration, and working hours would not exceed 84 hours per week.[56] This means the gross payment per week would have been $3,600.00.

• [129] I have found, above, that Mr Davis would have been employed another week. The amounts that Mr Davis would have received, therefore, are:

Superannuation guarantee at 11.5% (the rate in financial year 2024/25): $414.00

• [130] I have estimated this on the basis of my finding that the Applicant would likely have remained in employment for a further period of one week. This estimate of how long the Applicant would have remained in employment is the "anticipated period of employment".[57]

• [131] Only monies earned since termination for the anticipated period of employment are to be deducted.[58] In this case, there are no monies to be deducted at this step for monies earned during the anticipated period of employment. However, as stated above, I accept Mr Davis took no steps to mitigate his loss.

• [132] Given the short period concerned, that is, one week, and given the time necessary to travel back from Perth to Brisbane, it is not clear that even if Mr Davis had sought to mitigate his loss, he would have obtained remunerative work during the anticipated period of employment, or during the one week following the dismissal on 25 September. Having regard to all of the circumstances above, I will reduce the compensation by 10% in light of Mr Davis's failure to mitigate. The resultant gross amount is $3,612.60.

• [133] I now need to consider the impact of contingencies on the amounts likely to be earned by the Applicant for the remainder of the anticipated period of employment.[59] No party made any submissions about whether any amount should be deducted for contingencies. Given the short period involved I will not deduct any amount for contingencies.

• [134] I have considered the impact of taxation but have elected to settle a gross amount of $3,612.60 and leave taxation for determination.

• [135] Having applied the formula in Sprigg, I am nevertheless required to ensure that "the level of compensation is an amount that is considered appropriate having regard to all the circumstances of the case,"[60] including my findings set out above.

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

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

• [138] I am satisfied that the misconduct of the Applicant contributed to the employer's decision to dismiss.

• [139] In all the circumstances, I am satisfied that the appropriate amount by which to reduce the amount of the order for compensation on account of misconduct is a further 20%.

• [140] Applying this reduction to the amount determined at step 4 above, the gross amount of compensation to be ordered, subject to the compensation cap discussed below, is $2,890.08.

• [141] I am satisfied that this amount does not exceed the compensation cap provided for in subsection 392(5) of the Fair Work Act.

• [142] In light of the above, I will make an order that the Respondent pay the Applicant $2,890.08 gross, less taxation as required by law, in lieu of reinstatement within 14 days of this decision.

• [143] I am satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the Fair Work Act.

• [144] I have determined to award the Applicant an amount of $2,890.08 gross, less taxation as required by law, as compensation for lost wages.

• [145] An order will issue separately, requiring that the amount be paid within 14 days of this Decision.

[5] Fair Work Act 2009, section 390.

[6] Ibid, s.382.

[7] Ibid, ss.385 and 390(1).

[8] Ibid, s.397.

[9] Ibid, s.399.

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

[11] Sydney Trains v Trevor Cahill [2021] FWCFB 1137, [38], applying Edwards v Justice Giudice [1999] FCA 1836, [7].

[13] Sydney Trains v Trevor Cahill [2021] FWCFB 1137, [38], applying King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].

[14] Tenix Defence Systems Pty Ltd v Fearnley Print S6238 (AIRCFB, Ross VP, Polites SDP, Smith C, 22 May 2000), [25], referred to with approval in Newton v Toll Transport Pty Ltd [2021] FWCFB 3457; 307 IR 140, [174].

[15] Respondent's outline of submissions, [15].

[16] [2021] FWCFB 3457; 307 IR 140, [173]-[176].

[17] Respondent's outline of submissions, [21]-[24].

[26] Exhibit 13, [15]-[16], [18].

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

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

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

[35] Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].

[36] RMIT v Asher [2010] FWAFB 1200; (2010) 194 IR 1, 14-15.

[37] Gibson v Bosmac Pty Ltd [1995] IRCA 222; (1995) 60 IR 1, 7.

[40] Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].

[41] Jetstar v Meetson-Lemkes [2013] FWCFB 9075, [68].

[44] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]-[7].

[45] [2021] FWC 4593.

[46] [2021] NSWIRComm 1043.

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

[49] Vennix v Mayfield Childcare Ltd [2020] FWCFB 550, [20]; Jeffrey v IBM Australia Ltd [2015] FWCFB 4171, [5]-[7].

[50] He v Lewin [2004] FCAFC 161, [58].

[51] Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O'Callaghan SDP, Foggo C, 28 March 2002), [34] citing Lockwood Security Products Pty Ltd v Sulocki and Ors PR908053 (AIRCFB, Giudice J, Lacy SDP, Blair C, 23 August 2001), [45].

[52] Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O'Callaghan SDP, Foggo C, 28 March 2002), [34] citing Payzu Ltd v Saunders [1919] 2 KB 581.

[53] [1998] AIRC 989; (1998) 88 IR 21.

[54] Tabro Meat Pty Ltd v Heffernan [2011] FWAFB 1080; Read v Golden Square Child Care Centre [2013] FWCFB 762; Bowden v Ottrey Homes Cobram [2013] FWCFB 431.

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

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

[60] Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206, [17].

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