d) reinstatement of the Applicant to the Respondent's employ would be inappropriate; and

e) that an order for compensation (payable by the Respondent, to the Applicant) is appropriate in all of the circumstances of this case.[2]

• [5] In short, I made findings consistent with the following evidence of the Applicant:

"03/02/2025: Following my repeated requests for a long overdue pay review due to the exploding cost of living, after 2 years without any pay review or increase and many unkept promises, Mr [Stephen] McDermott [Director of the Respondent] replied to me via email: "You have me by the balls", adding that he was "struggling massively" (DHB, Page 167). He offered me a modest $5,000 increase (below cumulative inflation for the last 2 years), which I accepted (DHB, Page 168).

14/02/2025: I noticed that the promised pay rise was missing from my pay, and complained to Mr McDermott. In an email (DHB, Pages 169 to 170), I highlighted my performance and positive contribution to the firm in the last 2 years and also raised his history of repeated broken and false promises regarding my compensation.

17/02/2025: Mr McDermott responded to my email falsely stating that I was "on 85k base salary package including super", adding "that's a fucking good base. There is no pay rise. Do you want to continue or not?" (DHB, Page 169). He then blocked me from the company email's system, so I could no longer respond to his email or perform my work (DHB, Page 171). Over SMS (DHB, Page 172), he continued "If we can't have a conversation then I think it's time to terminate the employment. You agree?" adding "I can't afford a pay rise", giving me an ultimatum in an attempt to bully me into accepting a humiliating downgrade, or to "go find another job". I replied: "I am not resigning, I've done nothing wrong, asking for a pay rise after over 2 years, and not getting paid this Friday". Mr McDermott responded: "Ok. I'm terminating you with immediate effect", effectively dismissing me from my near-decade of employment with Sigma Resourcing by SMS (DHB, Page 173)."[3]

• [6] The parties subsequently filed further written submissions and related documentation on the issues of:

a) the amount of compensation to be awarded to the Applicant; and

b) whether any orders for compensation should be subject to instalment payments.

• [7] This decision is limited to resolving the foregoing two issues.

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

• [8] Section 392(2) of the 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;

(b) the length of the Applicant's service;

(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.

• [9] I consider all the circumstances of the case below.

Effect of the order on the viability of the Respondent's enterprise (s.392(2)(a))

• [10] Business viability refers to a business's capacity to sustain its operations and generate profits over the medium to longer term.[4] Assessments as to viability are not limited to the financial health of a business, but extend to (for example) industry and enterprise specific issues, business structures, available work, economic conditions, and profits.

• [11] An employer carries the onus to bring relevant evidence as to the impact (or likely impact) that an order for compensation will have upon the viability of its business.[5]

• [12] The Respondent has made submissions, supported by documentation, of it being in financial distress. The summary is that the Respondent:

a) is currently subject to a formal restructuring plan, with monthly payments to be made pursuant to that plan in the order of $9,150 per month until 28 October 2025 (these payments commenced in November 2024). It appears that the Respondent missed its May 2025 payment, and is currently in contravention of the restructuring plan (meaning that the plan may be terminated, with the remaining debt due and payable immediately to the ATO);

b) has business expenses and loan repayments of (around) a further $9,000 per month; and

1. has no current employees, and will not trade profitably without engaging employees, giving rise to additional monthly costs for employee wages (if and when anyone is actually employed).[6]

• [13] The Respondent also relies upon correspondence from its Accountant, which reads:

"Sigma Resourcing has lodged its Business Activity Statements for the three quarters ending 31 March 2025. Attached to this letter is the cash-based Profit and Loss Statement for the same period, which outlines the following:

- Q3: Loss of $1,598 (noting that January is typically a slow period for recruitment businesses)

These figures indicate that while the company experienced early losses, there are signs of financial recovery and potential for continued improvement.

It is important to note that Mr. McDermott, the Director, has taken a modest wage of $24,481 for the financial year to date and has personally loaned $43,452 to the company. These funds have been critical in maintaining the existing payment plan established during the company's recent restructure. To date, $55,002 of the agreed $110,000 has been repaid under that arrangement.

Given the company's current financial position, a large one-off payment to any party could jeopardize its stability and ongoing operations. Therefore, we respectfully request that, should the Fair Work Ombudsman determine an amount payable to the former employee, a structured payment plan be considered. This would allow Sigma Resourcing to meet its obligations while continuing to trade and meet all other financial commitments. Based on the information provided by our client, we confirm that Sigma Resourcing Pty Ltd is currently trading profitably after meeting its expenses. While we believe this information to be accurate to the best of our knowledge, we accept no liability for any loss incurred by any party relying on the contents of this letter."[7]

• [14] On the basis of the Respondent's financial position, it submits that I should reduce the quantum of any compensation awarded to the Applicant to a level consistent with the Respondent's "actual financial capacity" (without identifying or suggesting what that actual financial capacity is). The Respondent also submits that an order for compensation (particularly if payable as a lump sum, and not by instalments) will place it in breach of its creditor obligations, jeopardise its survival, and be contrary to the interests of all stakeholders, including existing creditors.[8]

• [15] There was no evidence before me of the specific effect (or likely effect) on the 'viability' of the Respondents' business that an award of compensation will actually have. In my view, for me to limit or reduce the amount of compensation to be awarded to an unfairly dismissed employee on the basis that of it will have a detrimental impact upon the viability of a business, I need probative evidence that establishes the relevant factors impacting upon the viability of that business (i.e. beyond the fact that an award of compensation will add to the debt pile). For example, the value of work on projects in the pipeline, how a compensation order will impact upon such work or projects, estimated or likely profit margins on relevant work or projects, the capacity of the business to actually supply goods or services so as to derive income, impacts upon existing employees, and key risks to income receipts. The Respondent did not bring this evidence, or otherwise squarely engage with business viability issues in its submissions. For example, the statement "there are signs of financial recovery and potential for continued improvement" does not set out the basis upon which this assertion is made, or the specific "signs" pointing in that direction. Whilst the Respondent requests that a "structured payment plan" be considered, it has offered no proposal as to what that plan should look like, let alone the reasons that support any specific plan proposal (by reference to formulas, calculations, or figures).

• [16] I take into account the Respondent's financial position, and accept that any order for compensation will have an adverse impact upon the Respondent's financial position, including its viability.[9] However, in all of the circumstances, on the evidence, I do not accept (or I am not satisfied) that I should reduce any amount of compensation to be awarded to the Applicant by reference to s.392(2)(a) of the Act in this case.

Length of the Applicant's service (s.392(2)(b))

• [17] The Applicant, at the time of his dismissal, was employed by the Respondent for a period of around 10 years (25 May 2015 to 17 February 2025). I consider that the Applicant's not insignificant length of service is such that it does not favour an adjustment to the compensation payable.

Remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed (s.392(2)(c))

• [18] 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 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."[10]

• [19] The Applicant's evidence is that he would have stayed in the Respondent's employ if he had not been dismissed. I accept that the Applicant had formed no intention to leave the Respondent's employ, and had made no plans to deal with his employment ending so abruptly after nearly ten years of service.

• [20] There is no evidence of any genuine performance or conduct issues involving the Applicant in respect of his work for the Respondent, i.e. that would suggest that his employment was potentially at risk but for his unfair dismissal on 17 February 2025.

• [21] I conclude that the Applicant's employment, but for his unfair dismissal by the Respondent, would have continued on with the Respondent for at least a further six months. At the time of his dismissal, the Applicant was the Respondent's only employee. The Respondent's submissions state that it is unable to trade profitably without employees, yet it dismissed its only employee. In the facts and circumstances of this case, there is no logical basis to conclude that the Applicant would not have remained employed by the Respondent, but for his unfair dismissal, for less than six months.[11]

• [22] On 17 January 2023, Mr Richard Coleman, then Director of the Respondent, sent an email (9:11am) to the Applicant stating: "Just to confirm we are happy to increase your base by $5k to $85k including Super."[12] The Applicant replied "thank you. I appreciate it".[13] The Applicant worked a four day week for the Respondent, meaning his base salary was 4/5 of $85,000 (including superannuation). In addition to his base salary, the Applicant also received commission payments each month, based upon his sales (or placements), with superannuation also paid on those commissions.

• [23] Turning to the remuneration that the Applicant would have earned (or received) had his employment continued for a further six months, his pay slips show that in the six months prior to his dismissal he earnt a total of $46,885.10 (or $1,803.27 per week).[14] This comprised of $30,769.20 of base salary (excluding superannuation), and $16,115.90 in commissions (excluding superannuation).[15]

• [24] Six months (or 26 weeks) post the Applicant's dismissal (on 17 February 2025) is 18 August 2025. Multiplying the Applicant's weekly rate of $1,803.27 per week by 26 weeks comes to a gross figure of $46,885.10.

• [25] Having regard to the above, if the Applicant remained in the Respondent's employ for a further six months, I find that he would have received $46,885.10, plus 11.5 percent superannuation on that amount.

• [26] I observe that the Applicant has an outstanding claim against the Respondent for unpaid commissions (that the Applicant says were due and payable to him in February 2025 (at the time of his dismissal)).[16] The Respondent disputes that such commissions are owed. However, if such commissions are found to be payable, that would increase the amount of the Applicant's earnings for the purposes of these compensation calculations. I cannot resolve this issue in these proceedings, hence, the amount $46,885.10, plus 11.5 percent superannuation on that amount, is the amount that I have settled upon.

Efforts of the Applicant to mitigate the loss suffered because of the dismissal (s.392(2)(d))

• [27] An applicant must provide evidence that he or she has taken reasonable steps to minimise the impact of his or her dismissal.[17] What is reasonable depends on the circumstances of the case.[18]

• [28] I am satisfied on the evidence that the Applicant has made reasonable efforts to mitigate his loss, but has been unsuccessful in obtaining further employment post his dismissal.[19] While the Applicant did not provide evidence of his job applications, I found his oral submissions to be credible in circumstances where he was dismissed via text message, and paid no notice. The Applicant's lack of success in securing employment post his dismissal by the Respondent was not put in issue or challenged by the Respondent. In all of the circumstances, I am satisfied that the Applicant has taken reasonable steps to mitigate his losses. An adjustment to the compensation payable to the Applicant is not appropriate.

Income earned by the Applicant following his dismissal (s.392(2)(e))

• [29] The Applicant did not receive payment in lieu of notice upon his dismissal, and has had no other paid work since his dismissal. Consequently, I apply no discount to the proposed amount of compensation under this criterion.

Amount of 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 (s.392(2)(f))

• [30] There is no evidence before me that the Applicant is likely or 'reasonably likely' to earn income between the making of an order for compensation, and the payment of that compensation. Consequently, I make no deduction in respect of likely earnings in the period. In short, I do not consider it appropriate for prospective earnings to reduce the amount of compensation to be awarded to the Applicant in this case.

Any other relevant matter (s.392(2)(g))

• [31] No other relevant matters were raised by the Applicant or the Respondent going to an order for compensation, nor am I aware of any.

Misconduct (s.392(3))

• [32] In determining the amount by which it is appropriate to reduce an order for compensation on account of misconduct, the Commission must consider, amongst other things, whether the Applicant engaged in misconduct and, if so, whether that misconduct contributed to the Respondent's decision to dismiss the person. A Full Bench of this Commission has observed that, "[t]he section seems to require such consideration even if the FWC has found there was no valid reason for the person's dismissal."[20] However, the Full Bench goes on to say that, "if there was no valid reason for the dismissal we think that may be relevant to the FWC's decision as to the 'appropriate' amount by which to reduce the amount of compensation the FWC would otherwise order."[21]

• [33] I have found that the Applicant's dismissal was not for a valid reason. There is no evidence to suggest that there was misconduct on the part of the Applicant during his employment with the Respondent (leading to his dismissal, or otherwise). I do not reduce the amount of compensation to be awarded to the Applicant on the basis of misconduct.

Instalments (s.393)

• [34] The Respondent has applied (for the same reasons set out in paragraphs [12] to [14] of this decision) for any award of compensation to be paid to the Applicant by instalments over a 12 month period. It has not specified or suggested an amount for any such instalments, or what instalment amount it will be able to pay. I have been presented with no bank account transaction information, or any figures as to likely on-going income, let alone current cash on hand. In the circumstances, including the abrupt manner in which the Applicant was dismissed via text message, I do not consider that the Respondent's request for instalment payments to extend over a 12 month period to be reasonable. I have determined to provide some relief to the Respondent in respect of a lump sum payment, via the instalment payment arrangements set out in paragraph [51] of this decision (noting the need to balance the rights of a successful applicant to "the fruits of its success", against providing a respondent an opportunity to pay over an extended timeframe).[22] This is especially so in circumstances where the Applicant has been unemployed since 17 February 2025, and was dismissed without any payment of notice.[23]

Shock, Distress (s.392(4))

• [35] I note that the amount of compensation calculated does not include a component for shock, humiliation or distress.

Compensation - how is the amount to be calculated?

• [36] As noted by the Full Bench, "[t]he well-established approach to the assessment of compensation under s.392 of the FW Act... is to apply the "Sprigg formula" derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul's Licensed Festival Supermarket (Sprigg).[24] This approach was articulated in the context of the Act in Bowden v Ottrey Homes Cobram and District Retirement Villages."[25]

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

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

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.

• [38] I have estimated the remuneration the Applicant would have received, or would have been likely to have received, if the Respondent had not terminated his employment to be $46,885.10 on the basis of my finding that it is likely the Applicant would have remained in employment for a further period of six months. This estimate of how long the Applicant would have remained in employment is the "anticipated period of employment".[26]

• [39] I have found that the Applicant has not earned any remuneration since the date of his dismissal, and that he is unlikely to earn any remuneration between the making of the order for compensation and the payment of compensation.

• [40] Only monies earned since termination for the anticipated period of employment are to be deducted. Consequently, no deductions are to be made for earnings. I have also found that the Applicant has taken reasonable steps to mitigate his losses, and consequently no deduction is to be made in this regard.

• [41] 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.[27]

• [42] I consider it appropriate to deduct five percent from the sum of $46,885.10 on the basis of contingencies. This leaves a figure of $44,540.84 (i.e. $46,885.10 - 5 percent ($2,344.26)).

• [43] I have considered the impact of taxation but have elected to settle on a gross amount of $44,540.84, which is to be subject to normal taxation law requirements and deductions.

Compensation and all the circumstances of the case

• [44] 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."[28]

• [45] I am satisfied that the amount of compensation that I have determined above takes into account all the circumstances of the case, including as required by s.392(2) of the Act, and that the amount of $44,540.84 (plus superannuation on that amount) is appropriate in this case.

Compensation - how does the compensation cap apply?

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

1. the amount worked out under section 392(6); and
2. half the amount of the high income threshold immediately before the dismissal.

• [47] The amount worked out under section 392(6) is the total of the following amounts:

(a) the total amount of the remuneration:

(i) received by the Applicant; or

(ii) to which the Applicant was entitled;

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

(b) if the Applicant was on leave without pay or without full pay while so employed during any part of that period - the amount of remuneration taken to have been received by the Applicant for the period of leave is in accordance with the regulations.

• [48] The gross amount of $44,450.84 is less than the compensation cap. No further adjustment of the amount is necessary.

• [49] I am satisfied that the amount of compensation that I have determined to be awarded to the Applicant (being the figure of $44,450.84 (plus 11.5 percent superannuation on that amount)), in the facts and circumstances of this case, does not yield an amount that is clearly excessive or clearly inadequate.

• [50] I am equally satisfied that my finding as to the Applicant's dismissal being unfair, and the amount of compensation to be awarded to the Applicant, ensures that a fair go all round has been afforded to both the Applicant and the Respondent in this case.[29]

• [51] The Respondent is to pay the Applicant the amount of $44,450.84 (less applicable taxation as required by law), plus 11.5 percent superannuation on that amount ($5,111.85), on the following basis:

a) Subject to Order (c) below, the Respondent will pay the Applicant the amount of $44,450.84 (less applicable taxation as required by law) (Total Amount). This Total Amount is to be paid by way of the following instalments (Instalment Payments), with each Instalment Payment to be received by the Applicant (available as cleared funds in his nominated bank account) by the following dates and times:

1. Instalment Payment 1 - $14,450.84 (less applicable taxation) by 4pm on Thursday, 3 July 2025 (time being of the essence);

1. Instalment Payment 2 - $5,000.00 (less applicable taxation) by 4pm on Thursday, 10 July 2025 (time being of the essence);

1. Instalment Payment 3 - $10,000.00 (less applicable taxation) by 4pm on Thursday, 24 July 2025 (time being of the essence);

1. Instalment Payment 4 - $5,000.00 (less applicable taxation) by 4pm on Thursday, 7 August 2025 (time being of the essence); and

1. Instalment Payment 5 - $10,000.00 (less applicable taxation) by 4pm on Thursday, 14 August 2025 (time being of the essence).

b) Subject to Order (c) below, the Respondent will pay the Applicant the amount of $5,111.85 (Superannuation Payment) into his nominated superannuation account on or before 4:00pm on Friday, 27 June 2025.

Order (c) - Consequences for failing to make an Instalment Payment, or the Superannuation Payment

1. any of the Instalment Payment dates and times (as specified in Order (a) above) not be strictly complied with by the Respondent (such that the Applicant does not receive the relevant Instalment Payment as cleared funds in his nominated bank account by the date and time specified for each (or any) Instalment Payment); and/or

1. the Superannuation Payment not be paid in full (as specified in Order (b) above) by the Respondent (such that the Applicant's Superannuation Fund does not receive the Superannuation Payment as cleared funds into the Applicant's superannuation account by 4:00pm on Friday, 27 June 2025):

1. all future or remaining Instalment Payment/s under Order (a) shall cease to have effect, and the Total Amount shall become immediately due and payable by the Respondent to the Applicant, less any Instalment Payment/s already received by the Applicant into his nominated bank account from the Respondent; and

1. the Superannuation Payment shall become immediately due and payable by the Respondent to the Applicant, less any payments already received by the Applicant into his superannuation account from the Respondent."

• [52] Separate orders will be issued contemporaneously with this decision (PR788398) reflecting the foregoing orders.

• [53] I note that on 2 May 2025 the Applicant has lodged a small claim with the Federal Circuit and Family Court for orders requiring the Respondent to pay him nearly $40,000 (for unpaid accrued annual leave, unpaid notice of termination, and unpaid commissions). I note that as at the time of the hearing before me, and despite demands, there is no evidence that the Applicant has been paid by the Respondent for any of his outstanding annual leave entitlements, his four week notice period, or the commissions he claims are owing. The Applicant has also filed a claim with the Industrial Relations Commission of New South Wales for unpaid long service leave. Again, I note that as at the time of the hearing before me, there is no evidence that the Applicant has been paid for any outstanding long service leave. Obviously, my award of compensation in these unfair dismissal proceedings does not concern itself with, or otherwise impact upon, any claims made by the Applicant against the Respondent for outstanding entitlements and other payments separately due and payable to him under statute or contract.

The Applicant (Mr Ilias Kadji) appeared for himself.

Mr Stephen McDermott, Director, appeared for the Respondent (Sigma Resourcing Pty Ltd).

[1] Termination for abandonment of employment is a termination at the employer's initiative in any event: Re 4 Yearly Review of Modern Awards - Abandonment of Employment (2018) 271 IR 249.

[3] Applicant's Submissions dated 27/04/25 at page 1 of 2 (filed as an updated submissions attachment to an email from the Applicant to Chambers on 1 June 2025 at 6:59pm). Replicated from DHB, p.150.

[4] See definition of "commercial viability' from Cambridge Online English Dictionary, and "viability" from the Merrian-Webster online dictionary.

[5] Moore v Highpace Pty Ltd (18 May 1998, AIRC, Bolton J, Watson SDP and Whelan C, Print Q0871).

[6] Mr McDermott's email to Chambers, 13 June 2025, 4:54pm, also enclosing an Accountant's Letter, Profit and Loss Statement, March 2025 Business Activity Statement, Restructure Plan, and Breach of payment plan letter.

[10] He v Lewin [2004] FCAFC 161, at [58].

[11] Note also Digital Hearing Book (DHB), at p.167 (Mr McDermott email 3/2/25, 2:02pm).

[13] Ibid. See also Applicant's written employment contract, DHB, pp.153-158. See also p.159.

[16] See paragraph [53] of this decision.

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

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

[19] The Applicant has actively sought out alternative employment post his dismissal, and has been unsuccessful in securing any such employment. See Transcript, PN1001-PN1029.

[20] Read v Gordon Square Child Care Centre Inc [2013] FWCFB 762, at [83].

[22] Carson Q Zhang v Orientile Pty Ltd [2025] FWC 1526, at [10] (and the authorities cited therein). Note Applicant's Submissions on compensation, 2 pages, dated 12/6/25 (attached to the email from the Applicant to Chambers, 13/6/25, 11:41pm).

[23] The Instalment Plan results in the Applicant receiving his compensation within six months of his dismissal (i.e. the last Instalment Payment ends on 14 August 2025 (with the Applicant having been dismissed on 17 February 2025). I consider this a reasonable timeline and outcome, taking into account the Respondent's financial position and the needs of the Applicant to access the fruits of his success in a reasonably timely manner.

[24] [1998] AIRC 989; (1998) 88 IR 21.

[25] [2013] FWCFB 431; Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206, at [16].

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

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

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

[29] Section 381(2) of the Fair Work Act 2009.

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