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[2020] FWC 4077
plaintiff. The Commission found the dismissal unfair and ordered compensation of $6,904.50 gross, less applicable taxation, plus 9.5 per cent superannuation on the gross compensation sum. Payment was ordered...
The employer said it dismissed Abdallah for poor performance, but it did not provide evidence in the Commission proceedings to support that explanation. Abdallah's evidence disputing the performance allegations was therefore unchallenged, and the Commission found no valid reason for dismissal. It also considered the employer's size and HR resources, and the apparent failure to take Abdallah's responses into account. The dismissal was found unfair. The Commission did not order reinstatement. It estimated that Abdallah would probably have remained employed for another eight weeks, calculated gross lost remuneration of $9,206, and reduced that amount by 25 per cent for a degree of misconduct. The resulting award was $6,904.50 gross, plus 9.5 per cent superannuation, subject to tax.
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1 cited instrument linked from this judgment.
2,302 words · generated 02/10/2026
Jason Abdallah applied to the Fair Work Commission for an unfair dismissal remedy after Bollore Logistics Australia Pty Ltd ended his employment on 20 January 2020. He had started as a clerk in the employer's Sea Freight division on 5 February 2019. The employer's Form F3 said that it dismissed him for unsatisfactory performance that had not improved after warnings ([1]–[2]).
The central evidentiary feature was the difference between the employer's stated case and what it put before the Commission. The employer filed a Form F3, attended the hearing, and was represented by its HR Manager. But it filed no witness statements, documents or written submissions beyond the Form F3 ([3]–[4]). Abdallah filed material in accordance with the Commission's directions. The Commission therefore assessed the dispute on the evidence that was actually before it, including Abdallah's unchallenged account.
Abdallah's evidence was that he was hired as a Sea Freight clerk, but was soon expected to perform supervisor duties, including managing a shared email inbox and approving payment vouchers. He said that the division had no direct supervisor when he started, provided minimal training, and had no written procedures or manuals (6–(b)). He also said that after raising concerns about the supervisor role and his lack of training, he began receiving performance warnings.
The decision discusses a first warning dated 15 October 2019, a meeting and warning in December, a final warning, and a termination letter, both dated 20 January 2020 (6–(d)). The decision notes that the December warning itself was not before the Commission. Abdallah disputed the performance allegations and said, among other things, that colleagues shared responsibility for the work, that relevant training and procedures were lacking, and that some errors followed a colleague's failure to respond. The Commission did not accept his unsupported comparisons with colleagues as established facts, but it did consider his unchallenged evidence relevant to whether the employer had established a valid reason ([14]–[15], [22]–[23]).
The Commission found the dismissal unfair. Abdallah did not seek reinstatement, and the Commission also considered reinstatement inappropriate ([25]–[26]). It awarded $6,904.50 gross compensation, subject to tax, plus 9.5 per cent superannuation ([46]–[48]).
The Commission applied the unfair dismissal framework in ss 385 and 387 of the Fair Work Act 2009 (Cth). Section 385 identifies when a dismissal is unfair, including that it was harsh, unjust or unreasonable. Section 387 lists matters that must be considered in making that assessment, including whether there was a valid reason related to capacity or conduct ([7], [9]).
For valid reason, the Commission adopted the stated test that a reason should be “sound, defensible or well founded”, not “capricious, fanciful, spiteful or prejudiced” ([11]). It also explained that it had to determine disputed factual matters on the evidence before it ([12]–[13]). The issue was not simply whether the employer had issued warnings. The question was whether the evidence established the asserted basis for dismissal.
The employer's letters recorded its view that Abdallah's performance was unsatisfactory. But the Commission found that Abdallah's unchallenged evidence undermined the reliability of those allegations. His account was that alleged performance problems were at least partly connected with other employees' work, insufficient training, or the absence of suitable procedures ([14]). Because the employer did not file evidence to support the warning and termination letters, the Commission could not treat their allegations as established merely because they were recorded in the letters. It concluded that it could not accept the stated non-performance or underperformance reasons as sound, defensible or well founded ([15]–[16]).
The Commission did not separately assess notification, response and prior-warning matters under s 387(b), (c) and (e). Its reasoning was that those factors had no application if there was no valid reason ([17]). It treated the support-person factor as neutral: Abdallah said he did not have a support person, but also said he had not requested one ([19]).
Employer size and HR expertise were relevant to procedure. The Form F3 stated that the employer had 250 employees. The Commission considered an organisation of that size could be expected to afford procedural fairness and to take an employee's responses to allegations and warnings into account. The evidence did not show that Abdallah's responses had been considered, so these matters weighed towards an ultimate finding of harshness and unreasonableness ([20]–[21]). The Commission did not rely on Abdallah's comparative-fairness assertions about colleagues, because he had not provided evidence sufficient to establish appropriate comparisons ([22]–[23]).
On remedy, the Commission assessed the circumstances under s 392. It adopted the Sprigg approach, summarised as estimating likely remuneration absent dismissal, deducting earnings since dismissal, discounting for contingencies, and considering taxation ([27]–[28], [37]–[39]). It found Abdallah would probably have remained employed for no more than a further eight weeks, despite finding no valid reason. The warning and termination letters still showed that the employer viewed his performance negatively and was unlikely to continue his employment for long ([32]).
At an agreed annual salary of $60,000, the Commission calculated weekly gross earnings of $1,150.75 and eight weeks' gross remuneration of $9,206 ([40]). It made no deduction for post-dismissal earnings because there was no evidence of any, and no deduction for contingencies ([41]–[42]). It accepted that Abdallah had been seeking work and that the employment market was affected by COVID-19, so it made no reduction for failure to mitigate ([33]–[36]). Finally, it reduced the calculated amount by 25 per cent because the warning and termination letters disclosed some degree of underperformance. It treated s 392(3) as requiring consideration of that matter even though it had found no valid reason ([44]–[45]).
The decision applied, rather than announced a new statutory test. Its account of the law starts with ss 385 and 387 of the Fair Work Act. The legislation required the Commission to decide whether the dismissal was harsh, unjust or unreasonable and to take account of the listed criteria, including valid reason and specified procedural matters ([7]–[10]).
The decision drew on earlier authorities for the valid-reason standard and the Commission's role in determining disputed facts. It cited Selvachandran v Peteron Plastics Pty Ltd and Walton v Mermaid Dry Cleaners Pty Ltd for the character of a valid reason and the warning against substituting the Commission's own preferred management decision for the employer's ([11]). It cited Edwards v Justice Giudice and King v Freshmore (Vic) Pty Ltd on assessing whether alleged conduct occurred and what it involved ([12]). For capacity disputes, it referred to Crozier v AIRC, Jetstar Airways Ltd v Neeteson-Lemkes and CSL Limited v Chris Papaioannou ([13]).
For compensation, the decision described the Sprigg formula as the established approach, citing Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries, Sprigg v Paul's Licensed Festival Supermarket and Bowden v Ottrey Homes Cobram and District Retirement Villages ([28], [37]–[38]). It also relied on He v Lewin for the need to assess how long employment would likely have continued absent the actual dismissal ([31]–[32]). Roos v Winnaa Pty Ltd was cited on contingencies, and Read v Gordon Square Child Care Centre Inc on considering a misconduct reduction ([42], [45]).
The practical contribution of the decision is its application of those principles to an evidentiary gap. The Commission did not treat the employer's performance letters as self-proving in circumstances where the employer filed no supporting evidence and the employee's contrary evidence was unchallenged ([3], [14]–[16]). The decision also illustrates that a finding of no valid reason did not eliminate a separate consideration of misconduct for compensation purposes. The Commission found a degree of underperformance and made a 25 per cent reduction under s 392(3) ([44]–[45]).
The supplied judgment does not describe any later change to the statutory framework or any later court's treatment of this decision. It therefore supports an account of the authorities applied by Deputy President Boyce, but does not establish the decision's subsequent precedential history.
At [15], the Commission said it was “unable to accept, on the evidence” that the employer's stated reasons were sound, defensible or well founded. In plain English, the employer's documents recorded its concerns, but the evidence in the case did not adequately establish that the asserted performance problems justified dismissal.
At [16], the Commission concluded that there was “not a valid reason” for dismissal. This was a finding about the evidentiary and statutory assessment in this case, not a general rule that an employer must always file a particular kind of document. The decision's point was that the Commission had to decide the issue on the evidence before it.
At [20]–[21], the Commission linked the employer's size and HR capacity to what could reasonably be expected of its procedures. It considered that an employer with 250 employees and dedicated HR staff should take an employee's responses to warnings into account. The available evidence did not show that this occurred.
At [32], the Commission estimated that Abdallah would have remained employed for another eight weeks at most. This illustrates the distinction between finding a dismissal unfair and determining the amount of compensation. The Commission could find no valid reason while still concluding that the employer was unlikely to have continued the employment for a lengthy period.
At [45], the Commission reduced compensation by 25 per cent for a degree of misconduct. In practical terms, its finding that there was no valid reason did not end the compensation calculation. It separately considered whether conduct contributed to the employer's decision and reduced the amount accordingly.
The decision is most directly relevant to an unfair dismissal dispute in which the employer asserts performance-related grounds, but the evidentiary record does not substantiate those grounds and the employee gives a contrary account that is not challenged. Its reasoning particularly concerns the Commission's obligation to assess disputed facts on the evidence before it, rather than treating allegations in employer letters as proven simply because they were written down ([12]–[16]).
It is also relevant where the employee says performance issues were connected with inadequate training, unclear work processes or shared responsibilities. Abdallah's evidence raised those matters, and the Commission treated them as undermining the employer's assertions in the absence of contrary evidence ([6], [14]–[15]). The decision does not establish that such explanations will always defeat a performance-based reason. Its finding turned on the evidence in this proceeding and the respondent's failure to engage with the merits beyond the Form F3 and hearing attendance ([3], [15]).
The procedural fairness discussion may be relevant where an employer has substantial staffing and dedicated HR expertise, and the record raises a question about whether an employee's responses were considered. The Commission expressly connected the employer's stated size and HR resources with its expectations about taking those responses into account ([20]–[21]).
The compensation reasoning may be relevant where reinstatement is not sought or is considered inappropriate, and the Commission must estimate likely continued employment, post-dismissal earnings, mitigation and contingencies. This decision demonstrates the Commission's separate assessment of the likely employment period and of any misconduct reduction ([26]–[46]). It does not establish a standard eight-week period or a standard 25 per cent reduction; those figures were specific to the evidence and findings here.
The judgment supplied for analysis contains no account of later court or Commission decisions citing, following, distinguishing or otherwise treating Abdallah. It was issued on 11 August 2020 and refers to authorities that pre-date it. On the available text, its later treatment cannot be determined.
The authorities it itself cites provide context for its reasoning, but they are not later treatment of this decision. For example, the decision cites Selvachandran and Walton for the valid-reason standard ([11]), King and Edwards for assessing alleged conduct on the evidence ([12]), and Double N, Sprigg and Bowden for the compensation methodology ([28], [37]–[38]). It also cites Read in connection with the misconduct reduction ([45]). Those citations show the authorities Deputy President Boyce relied on, not how subsequent courts treated Abdallah.
Accordingly, no claim about whether the decision was later followed, distinguished, appealed, affirmed or reversed can be made from the supplied judgment alone.
The decision identifies matters that could not be resolved on the material before the Commission. It notes that the December warning letter was not in evidence, and that the medical evidence Abdallah referred to in relation to migraines was also not before the Commission (6(ii)). The decision does not determine the underlying details of those matters.
The Commission also declined to rely on Abdallah's claims that colleagues shared responsibility for the alleged issues but were not warned. It found that he had not provided evidence sufficient to establish appropriate comparisons ([22]–[23]). The decision therefore does not resolve whether colleagues were in fact similarly situated or treated differently.
For compensation, the Commission estimated eight weeks of likely continued employment from the warning history and the employer's view of performance, but the decision does not describe a specific alternative termination date or a detailed future performance process ([32]). It also did not specify a post-tax compensation amount, stating that it was unnecessary to do so ([43]). The separate order giving effect to the decision was to be published and issued separately ([48]), so its full terms are not reproduced in this judgment text.
These limits matter when reading the decision. Its findings rest on the particular evidence before the Commission, including the respondent's decision not to file further evidence. The judgment does not decide every factual dispute Abdallah raised, and it does not provide a later history of how other decision-makers have treated its reasoning.
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s.394 - Unfair dismissal
Application for an unfair dismissal remedy - where no valid reason for dismissal - where the Respondent failed to engage with the proceedings (beyond the filing of a Form F3 and attending the hearing) - where dismissal found to be harsh, unjust unreasonable - compensation awarded.
[1] On 9 February 2020, Mr Jason Abdallah (Applicant) filed a Form F2 with the Fair Work Commission (Commission), being an application for an unfair dismissal remedy (Application). By way of his Application, the Applicant claims that he was dismissed from his employment with Bollore Logistics Australia Pty Ltd (Respondent) on 20 January 2020, and that his dismissal was "unfair" within the meaning of Part 3-2 of the Fair Work Act 2009 (Act).
[2] On 26 February 2020, the Respondent filed a Form F3 with the Commission (Response). By way of that Response, the Respondent claims that the Applicant was dismissed because of unsatisfactory performance, which did not improve after several warnings were given.
[3] The matter was programmed for hearing, and directions were issued to the parties concerning the merits of the Application. The Applicant complied with those directions, and duly filed his material by the deadlines set. However, the Respondent did not file, nor at any time seek to rely upon, any further material in this matter except the Response (i.e. the Respondent filed no evidence in the form of witness statements, documents, or written submissions in these proceedings). That was a choice the Respondent chose to make, however, the Respondent cannot escape the consequences of that deleterious conduct when findings based upon the evidence before the Commission need to be made.
[4] On 19 May 2020, I held a hearing (by telephone) regarding the substantive application. The Applicant appeared for himself. Ms Suzanne Lourdes (Human Resource Manager, Bollore Logistics Australia Pty Ltd) appeared for the Respondent.
[6] In the absence of evidence from the Respondent, the Applicant's evidence relevantly discloses the following:
(a) On 5 February 2019, the Applicant commenced employment with the Respondent. The Applicant's role was that of a "Clerk" in the "Sea Freight" division. At that time, the Sea Freight division did not have a direct supervisor. Staff received minimal training, and there were no written procedures or manuals. The Applicant worked with two other staff members in the same role.
(b) Shortly after commencing in his role, the Applicant was informed that he had been hired on the expectation he take-up a supervisor role. However, the Applicant says that this role and its responsibilities were not discussed during interview process. Regardless, the Applicant was instructed to take on the duties of a supervisor, including managing and allocating emails from a shared inbox, and approving payment vouchers.
(c) Following completion of his six-month probationary period, the Applicant expressed his concerns about filling the supervisor role, and the relevant lack of training. The Applicant says that, since expressing those concerns, he began to be treated differently. Specifically, issues going to his performance were raised with him, and recorded in written communications as follows (collectively, Warning Letters):
(i) on 15 October 2019, the Applicant received a letter from Mr Liam Butler (NSW Operations Manager Bollore Logistics Australia Pty Ltd) (First Warning Letter). That letter discloses, inter alia, that the Applicant had a conversation with Mr Butler on the same day, whereby Mr Butler discussed "unacceptable mistakes" in the Applicant's monitoring and communication in internal and external emails. Mr Butler cites "attention to detail" and an "understanding of what is being requested" as issues. Further, Mr Butler states that "[a]ny further complaints regarding incorrect shipping within the next calendar month will be viewed extremely seriously";
(ii) on 20 January 2020, the Applicant received a letter from Mr Butler (Final Warning Letter). That letter discloses, inter alia, that the Applicant attended a meeting with Mr Butler on 16 December 2020. During that meeting, the Applicant was advised that "improved performance had not been achieved". A second warning letter was issued to the Applicant to that effect (I note, however, that this letter is not before the Commission). The Final Warning Letter also discloses that Mr Butler and the Applicant met again on 20 January 2020, and that the Applicant's performance remained "unsatisfactory". Finally, the Final Warning Letter states (set in context):
"This is a final warning letter. If significant improvement in your performance was not achieved by 17/01/2019 your employment may be terminated. To reiterate, our expectation is that you monitor day to day import function not limited general email monitoring, phone calls, customs clearance, shipment monitoring. Along with ensuring that commercially sensitive material is not shared outside of Bollore Logistics Australia - Sydney."
(d) On 20 January 2020, the Applicant also received a termination of employment letter from Mr Butler (Termination Letter). That letter discloses that the Respondent had "decided not to continue [the Applicant's] employment" because of "performance and contribution to date".
(e) In response to the performance issues raised in the Warning Letters and the Termination Letter, the Applicant says (in his evidence) the following:
(i) as to the First Warning Letter, the Applicant says that the Respondent overlooked two of his colleagues, who were also responsible for the monitoring and clearance of emails, but were not given a warning. Further, the Applicant says that the Respondent hired a supervisor (presumably so that the Applicant was no longer the person to perform that role). However, the Applicant says that the supervisor assessed the Applicant's work with more scrutiny than he did the Applicant's colleagues;
(ii) as to the meeting with Mr Butler on 16 December 2020, the Applicant says that he was given a warning about sending charges to a client of the Respondent (presumably when the Applicant should not have sent those charges, or sent incorrect charges). The Applicant says that the charges were sent to the client after a colleague from customer service failed to respond to the Applicant (which apparently led to an error in the charges). The Applicant further says that this issue occurred on the same day that he suffered from migraines (and had medical evidence to show that he did suffer those migraines, although I note that this medical evidence is not before the Commission);
(iii) as to the Final Warning Letter, the Applicant again says that his colleagues shared responsibility for the issues raised by Mr Butler, but were not issued with warnings regarding their performance. Shortly prior to being provided with the Final Warning Letter, the Applicant was asked if he wanted to resign (presumably instead of being dismissed); and
(iv) before receiving the Termination Letter, on 20 January 2020, the Applicant sent the following email to Mr Butler (set in context):
"In response to your final warning letter I would like to clarify a few points;
- Warning letter one - attention to detail - this was due to missing a clearance even though at that point there where three people monitoring clearances - why have none of my team mates not warned for the same thing why ONLY me?
- Second warning letter - attention to detail and sharing sensitive information outside of Bollore - This would not have happened if ... customer service had responded to my numerous emails beforehand - why has he not received a warning letter for attention to detail - this also conveniently happened after I went home sick for a migraine the Friday afternoon before after being moved numerous times from desk to desk for no apparent reason.
- Final warning letter - was given after being told to resign so in fact the decision to fire me was made before receiving the final letter and my response to that final letter which I am writing now - this was again after I was away injured for two weeks.
To add further I feel I have been discriminated against due to not being able to fill a supervisor role even though when I was hired it was under the pretext of sea-freight import operator not supervisor.
Ever since the supervisor role has been filled I have been given warning after warning but before the probation period not one issue."
[7] Section 385 of the Act qualifies a claim for unfair dismissal:
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.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388."
[8] The Respondent has not raised any issue as to the Commission's jurisdiction to determine this matter. Having regard to the evidence, I find that the Applicant's claim is within the Commission's unfair dismissal jurisdiction. Hence, the question I must answer in these proceedings is whether the Applicant's dismissal was harsh, unjust or unreasonable.
[9] Section 387 of the Act provides what matters must be taken into account in determining whether a dismissal was harsh, unjust or unreasonable:
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."
Was there a valid reason for the dismissal related to the Applicant's capacity or conduct?
[12] Where a dismissal relates to an employee's conduct, the reason for dismissal might be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur, or it did occur, but did not justify termination.[3] The question of whether alleged conduct took place, and what it involved, is to be determined by the Commission on the basis of the evidence in the proceedings before it.[4]
[13] Where a dismissal relates to an employee's capacity (i.e. where the reason is associated or connected with the ability of an employee to do their job),[5] and there is a dispute as to whether the employee possessed the requisite capacity to perform their job, it is for the Commission to resolve that disputed issue as a matter of fact.[6]
[14] It is not in dispute that the Applicant was issued the Warning Letters. At the very least, the Applicant's performance was repeatedly questioned by the Respondent. However, the Applicant's unchallenged witness evidence undermines the veracity of those Warning Letters. Whatever underperformance is alleged by the Respondent, the Applicant's evidence (in summary) is that his conduct or alleged underperformance is (at least partially) a result of his underperforming colleagues, and/or because the Respondent did not properly train the Applicant, or otherwise apply appropriate procedures in respect of the work being performed.
[15] The Respondent's manifest failure to properly engage with these proceedings, and/or file and serve evidence in accordance with the directions issued by the Commission, enables the Warning Letters and the Termination Letter to be undermined by the Applicant's unchallenged evidence (including the purported factual content and allegations set out in these letters). The result is that I am unable to accept, on the evidence, that the purported reasons for the Applicant's dismissal (i.e. essentially non-performance or underperformance), are "sound, defensible or well founded" reasons.
[16] It follows that I find that there was not a valid reason for the Applicant's dismissal. This finding leans towards an ultimate finding that the Applicant's dismissal was harsh, unreasonable and/or unjust.
Was the Applicant notified of the valid reason? Was the Applicant warned about unsatisfactory performance before the dismissal? Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?
[17] If there is no valid reason for dismissal, then s.387(b), (c) and (e) have no application. Given that I am of the view that there was not a valid reason to justify the Applicant's dismissal, these factors do not require further consideration.
Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?
[19] The Applicant submits that he did not have a support person present with him, though he also submits that he did not request to have one either. I therefore treat this as a neutral consideration in this matter.
To what degree would the size of the Respondent's enterprise be likely to impact on the procedures followed in effecting the dismissal? To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent's enterprise be likely to impact on the procedures followed in effecting the dismissal?
[20] In its Response, the Respondent says that it has 250 employees. An organisation of this size would be expected to afford employees procedural fairness. More specifically, such an organisation would be expected to properly take into account an employee's response to allegations and warnings, and consider whether those responses mitigate against a decision to warn or dismiss an employee.
[21] The Applicant's evidence is that he attempted to reason with his managers as to the overall unfairness of the warnings issued to him. However, this appears to have fallen on deaf ears. Indeed, the evidence does not disclose that the responses provided by the Applicant (to his managers concerning the warnings) were taken into account by the Respondent at all. As such, in the facts and circumstances of this case, I find that the size of the Respondent's organisation, and the fact that it has dedicated human resources staff, to be a factor that leans towards an ultimate finding that the dismissal was unreasonable and harsh.
[22] The Applicant has submitted that his colleagues were not issued with warnings, or dismissed, for the same alleged issues of underperformance. I take it that the Applicant raises issues of comparative fairness.
[24] I am not aware of any other relevant matters that I might consider, nor have any such matters been brought to my attention by the parties.
[25] Having made my findings, and having given due weight to the matters set out under s.387 of the Act, I have determined that I am satisfied that the dismissal of the Applicant was "unfair" within the meaning of the Act.
[26] The Applicant does not seek reinstatement, nor do I consider it appropriate. The issue thus turns to whether compensation should be awarded and, if so, its quantum.
[27] 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:
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer's enterprise; and
(b) the length of the person's service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant".
Effect of an order on the viability of the Respondent's enterprise
[29] There is no evidence that a compensation order would have an adverse effect on the Respondent's viability This criterion therefore warrants no reduction.
[30] The length of the Applicant's service is eleven months. This is a short period of employment.
Remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed
"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".[11]
[32] On the evidence, I have found that the purported reason(s) for the Applicant's dismissal do not constitute a "valid reason" for his dismissal (especially having regard to the absence of evidence from the Respondent to support the contents of the Warning Letters, and the Termination Letter). However, it is not in dispute, by reference to the meetings held with the Applicant, and the Warning Letters issued to him, that the Respondent (rightly or wrongly) took a dim view of the Applicant's performance. When making findings, and forming a view, as to appropriate compensation to be awarded, I need to determine on the evidence how long the Applicant would have remained employed by the Respondent (but for the dismissal). In the facts and circumstances of this case, I do not consider that the Applicant would have continued in his employment with the Respondent for any longer than a further eight weeks. Despite the Applicant successfully undermining the veracity of the Warning Letters and the Termination Letter in these proceedings, the letters themselves highlight that the Respondent was very unlikely to continue the Applicant's employment beyond the next two months.
Efforts of the Applicant to mitigate the loss suffered by the Applicant because of the dismissal
[33] The Applicant says that since his dismissal he has applied for several jobs, and proceeded onto some interviews. However, the Applicant says that once he discloses that he was terminated because of underperformance, he does not hear back from anyone post interview. The Respondent did not contest this evidence.
[34] Given that the Applicant has been, and is, actively seeking further alternative employment, and is facing a deteriorating job market in the COVID-19 environment, I am satisfied that the Applicant has taken reasonable steps to mitigate his loss, and that no deduction in relation to mitigation (or lack thereof) ought be made.
Amount of remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for compensation
[35] There is no evidence that the Applicant has received any income since his dismissal.
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
[36] Given the general imposition of the COVID-19 pandemic on the employment market, and the Applicant's circumstances, in my view, the Applicant is unlikely to secure employment during the period between the making of an order for compensation, and receipt of actual compensation.
I confirm that, as required by the Act, the lost remuneration amount to be ordered does not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt caused to the Applicant by the manner of dismissal.
"[t]he well-established approach to the assessment of compensation under s.392 of the [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)]. This approach was articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages".[13]
[38] 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 employer had not terminated the employment (remuneration lost);
Step 3: Discount the remaining amount for contingencies; and
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.
[39] I will now consider the calculation of compensation, following the methodology in Sprigg.
[40] First, there is the question of the estimated remuneration that the Applicant would have received had he not been dismissed. I restate my finding that the Applicant would likely have remain employed, but for the dismissal, for a further period of eight weeks. The parties agree that the Applicant's annual salary was $60,000.00. As such, I take the Applicant's gross weekly earnings to be $1,150.75 per week ($60,000 / 52.14 weeks), which for eight weeks gives a total gross figure of $9,206.00 ($1,150.75 x 8).
[41] Second, it is necessary to deduct monies earned by the Applicant since his dismissal. However, given there is no evidence that any such monies were earned, I make no deduction in this regard.
[43] Finally, I have considered the impact of taxation on the gross amount of $9,206.00, however, I do not consider it necessary for me to specify a post-tax amount.
Is the amount of compensation to be reduced on account of misconduct?
[44] If I am satisfied that any misconduct of the Applicant contributed to the employer's decision to dismiss him_,_ 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.
[46] The total amount of gross compensation to be awarded to the Applicant is the sum of $6,904.50 (i.e. less applicable taxation as required by law).
[47] For the reasons stated above, I am satisfied, in the facts and circumstances of this case (on the evidence before the Commission), that a remedy should be ordered, and that reinstatement is inappropriate. I will order the compensation amount set out in paragraph [46] of this decision, subject to the deduction of taxation required by law, plus an amount for 9.5 percent superannuation on the gross compensation sum, to be paid by the Respondent within 14 days of the date of any order made.
[48] An order giving effect to this decision will be published and issued separately to this decision.
Ms Suzanne Lourdes (Human Resource Manager) appeared for the Respondent.
[3] Edwards v Justice Giudice (1999) 94 FCR 561; (1999) 169 ALR 89; [1999] FCA 1836 at [7].
[4] King v Freshmore (Vic) Pty Ltd Print S4213 [2000] AIRC 1019 at [23] to [24].
[5] Crozier v AIRC (2000) 50 AILR 4-488; [2001] FCA 1031 at [14].
[6] See more broadly: Jetstar Airways Ltd v Neeteson-Lemkes [2013] FWCFB 9075; CSL Limited v Chris Papaioannou [2018] FWCFB 1005
Printed by authority of the Commonwealth Government Printer
Jason Abdallah
Bollore Logistics Australia Pty Ltd [2020] FWC 4077
(1996) 142 ALR 681
(1999) 94 FCR 561
(1999) 169 ALR 89
(2004) 137 FCR 266
(1988) 88 IR 21
The Commission found the dismissal unfair and ordered compensation of $6,904.50 gross, less applicable taxation, plus 9.5 per cent superannuation on the gross compensation sum. Payment was ordered within 14 days of the date of the order. Reinstatement was not ordered ([26], [46]–[48]).
[5] Having considered the evidence and submissions of the parties, I have determined that the dismissal was unfair, and that compensation is an appropriate remedy in the circumstances. My reasons for this determination follow.