Fair Work Act 2009

s.394 - Unfair dismissal

• [1] On 2 October 2024, Ms. Judith Grose made an application under s 394 seeking compensation, alleging she had been unfairly dismissed from her employment with J.F.B. Investments Pty. Ltd. ("JFB").

• [2] The matter was heard in person by a determinative conference on Tuesday, 1 April 2025. Ms. Grose appeared, gave evidence and represented herself. There was no appearance by JFB or its director, Mr. Christopher Hill.

• [3] For the reasons I set out below I find:
  • The dismissal was not consistent with the Small Business Fair Dismissal Code;
  • The dismissal was harsh, unjust and unreasonable; and
  • A remedy of compensation is appropriate in the gross sum of $8,400.00 taxed as required by law, along with superannuation calculated on that amount.

THE PROCEDURAL HISTORY AND THE ABSENCE OF MR. HILL

• [4] JFB and its director, Mr. Christopher Hill, have failed to comply with any directions or attend any hearings in this matter.

• [5] On 11 October 2024, the Commission attempted to contact JFB to seek a secure email address. No response was received, and a voice message was sent. Ms. Grose subsequently provided the email address of Mr. Hill.

• [6] Later that day, a notice of listing was sent for a conciliation before a Fair Work Commission conciliator listed for 7 November 2024. In separate correspondence, Mr. Hill was asked to provide a Form F3 employer response by no later than 18 October 2024.

• [7] On 1 November 2024, the Commission attempted to contact Mr. Hill by mobile and landline. No response was received, and a voice message was sent.

• [8] On 7 November 2024, JFB did not appear at the conciliation. The Commission sent three voice messages to Mr. Hill that day.

• [9] The matter was allocated to my Chambers on 13 November 2024 and JFB was directed to file a Form F3 employer response by 21 November 2024.

• [10] On 7 January 2025, my Chambers attempted to contact Mr. Hill twice by mobile. No response was received and a 'voice to text' message was sent. A notice of listing was then issued by email and express post. The notice of listing was for a case management hearing at 2:00 PM on 16 January 2025. My Chambers subsequently attempted to contact Mr. Hill's mobile with no response and left a 'voice to text' message notifying of the email which would also be sent by post.

• [11] On 9 January 2025, my Chambers attempted to contact Mr. Hill by mobile and landline with no response. Afterward, my Chambers contacted Ms. Grose who confirmed Mr. Hill's email address and that she did not have any other contact numbers.

• [12] At 6:04 PM on 9 January 2024, my Chambers received a call from Mr. Hill's mobile. This call was not answered as it was made out of office hours. No voice message or subsequent written correspondence was received.

• [13] On 10 January 2025, my Chambers attempted to return Mr. Hill's call twice, but no response was received.

• [14] At 2:53 PM on 15 January 2025, my Chambers received a call from Mr. Hill's mobile. This call was not answered as my Chambers was occupied in another proceeding at the time. No voice message or subsequent written correspondence was received.

• [15] In the morning of 16 January 2025, my Chambers attempted to contact Mr. Hill twice by mobile and once by landline, however, no response was received.

• [16] At 2:00 PM on 16 January 2025, the mention was conducted. Ms. Grose attended, however, JFB did not appear. I issued directions by email for the parties to file material and to attend a case management hearing on 27 March 2025 as well as a determinative conference on 1 April 2025. The directions noted JFB's failure to engage in this proceeding or provide a Form F3 and explained that "should JFB not comply with the Fair Work Commission Rules 2024 or these Directions, the Commission may proceed with this matter in its absence." The parties were also sent a previous decision of the Commission as an example of a matter that was heard and determined in the absence of a respondent with compensation awarded.[1]

• [17] On 17 January 2025, the directions and notice of listing were sent to JFB by express post, which was copied to Ms. Grose by email. At 4:27 PM that day, Mr. Hill successfully contacted my Chambers by telephone. Mr. Hill stated that he was calling to 'follow up' on missed calls. My Chambers informed Mr. Hill that an email had been sent that day and that documents were being sent by post. My Chambers then confirmed with Mr. Hill that the postal address was correct, as well as the email address provided by Ms. Grose. After this confirmation, Mr. Hill stated he would "check" the correspondence and "go from there".

• [18] On 12 February 2025, my Chambers received Ms. Grose's submissions by email with JFB copied.

• [19] On 14 February 2025, my Chambers attempted to call Mr. Hill twice, but no response was received. A voice message was sent asking Mr. Hill to check his emails. Afterward, Ms. Grose's material was sent to JFB by express post. The covering letter enclosed with the correspondence by post noted the date by which JFB was to file its material and stated: "If you do not comply with the directions, the case may proceed with only the information received by the Applicant."

• [20] On 7 March 2025, my Chambers attempted to contact Mr. Hill by mobile with no response forthcoming and left a 'voice to text' message requesting Mr. Hill return the telephone call.

• [21] JFB was due to file its material on 13 March 2025 as directed on 16 January 2025. The Commission did not receive any material nor any explanation as to why no material had been filed.

• [22] On 14 March 2025, I amended the directions to provide a further opportunity of one week for JFB to file its material. I also issued the notice of listing for 1 April 2025. The amended directions were sent by email and by express post.

• [23] On 21 March 2025, my Chambers wrote to the parties noting that no material had been received from JFB despite the extension and requested JFB to file its material as soon as possible or provide grounds and evidence as to why it had been unable to do so. The correspondence reiterated the matter was listed on 27 March 2025 and 1 April 2025.

• [24] At 10:30 AM on 27 March 2025, my Chambers attempted to contact Mr. Hill. No response was received, and a voice message was sent noting the mention was due to begin shortly and that Mr. Hill should review previous emails from the Commission.

• [25] After the mention, my Chambers emailed the parties noting JFB's failure to attend any listings of the Commission or respond to any written correspondence. The email included the notice of listing for 1 April 2025 and advised that the determinative conference was the final opportunity for JFB to participate in the matter. This message was also sent to JFB by express post.

• [26] The matter was heard on 1 April 2025 in the absence of JFB. Ms. Grose represented herself and gave sworn evidence at the hearing. Since that time no correspondence has been received from JFB.

• [27] Procedural fairness is an invitation for parties to put their case. JFB has been afforded ample opportunity to do so. It has provided no explanation why it cannot or has chosen not to put its case. Ultimately, s 600 of the Act allows the Commission to "determine a matter before it in the absence of a person who has been required to attend before it."

• [28] Given the failure of JFB and its director Mr. Hill to engage with this proceeding, I will determine the matter in their absence based on the submissions and evidence of Ms. Grose.

When can the Commission order a remedy for unfair dismissal?

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

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

• [30] Both limbs of this section must be satisfied. I am therefore required to consider whether Ms. Grose was protected and whether she has been unfairly dismissed.

When is a person protected from unfair dismissal?

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

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

(d) one or more of the following apply:

(i) a modern award covers the person.

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

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

• [32] Ms. Grose was employed as a casual employee from on or around the "middle of 2009" and worked Mondays and Thursdays until her dismissal on 12 September 2024, a period of around 15 years.

• [33] The minimum employment period (MEP) required for a small business employee is twelve months.[2]

• [34] A period of service for a casual employee does not count towards a period of service for the purposes of an MEP unless she was a "regular casual"[3] and during her period of service she "had a reasonable expectation of continuing employment on a regular and systematic basis".[4]

• [35] During the entire period of her employment, Ms. Grose worked the same hours: from 2:30 PM to 7:00 PM on Mondays and 9:30 AM to 7:00 PM on Thursdays. As Ms. Grose worked the same days and hours for 15 years, she was a regular casual, and she had a reasonable expectation of continuing employment on a regular and systematic basis. It follows Ms. Grose's period of employment exceeds the MEP.

• [36] Ms. Grose's yearly earnings at JFB totalled to around $18,200.00 annually, which falls below the high-income threshold of $175,000.00.

• [37] As Ms. Grose earned less than the high income threshold and was employed by JFB for longer than the MEP, I find Ms. Grose was a person entitled to protection from unfair dismissal.

• [38] Section 385 of the Act provides that a person has been unfairly dismissed if the Commission 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.

• [39] Ms. Grose's employment with JFB ceased on 12 September 2024. It is not contested she was dismissed that day. Her dismissal was not a genuine redundancy.

• [40] Ms. Grose does not recall the precise number of employees employed by JFB but notes in the 'Estimated business size' section of her application that the number of persons employed was "1-14". In her oral evidence she confirmed "It's definitely not more than that."[5] I therefore find JFB is a small business employer as defined by s 23 of the Act. The Small Business Fair Dismissal Code (the Code) applies.

• whether JFB complied with the Code when it dismissed Ms. Grose; and
• whether the dismissal was harsh, unjust and unreasonable.

• [42] Since 2009, Ms. Grose has worked as a receptionist on a casual basis at a sex work venue in Ringwood. It trades under the name "Spoilers Relaxation Centre" ("Spoilers"). Her evidence was, for the entire 15 year employment period, she worked the same hours: from 2:30 PM to 7:00 PM on Mondays and 9:30 AM to 7:00 PM on Thursdays.[6] Her evidence was she earned $350 dollars a week, or $18,200.00 a year.

• [43] In her role as receptionist, she answered the phones, took bookings, answered the door for clients and was responsible for washing and drying bed clothes and towels. She stocked the rooms where workers would see their clients and would undertake small cleaning jobs. She was also responsible for paying the workers, taking money from clients and to generally make sure "the place was running smoothly".[7]

• [44] It was Ms. Grose's evidence that, except for the two occasions where Mr. Hill criticised her (which I refer to below), no issues were raised with her with respect to her performance or otherwise. She described the work environment at Spoilers as a "happy little family".[8] She went on:

"Everything was smooth, everything was great. It was a thriving business, the girls were happy, everyone was happy. Yes, we were very popular, well-known at being - yes, 30 years or more had been open. So, it was very established. They had a very regular clientele and a lot of girls - some of the girls had worked there 20 years or more."[9]

Mr. Hill's involvement in the management of Spoilers

• [45] Mr. Christopher Hill owned Spoilers for the entire time Ms. Grose was employed. For most of that time, Mr. Hill was not directly engaged in the day to day running of the business which was in the hands of a manager. Mr. Hill would come in from time to time to check the books. During this period, Ms. Grose would ring him when something at the premises broke to "fix the heating or something". That would occur "about a half a dozen times a year".[10]

• [46] Sometime later "around mid-2023",[11] Mr. Hill became progressively more involved in the day to day running of the business. He started coming in more often, got more involved in the rostering of the workers and had more contact with them.[12] One of the initiatives Mr. Hill undertook when he became more involved was the installation of cameras and microphones including "all around reception" and "especially around the till and our book work" (where Ms. Grose worked), in the "girl's rooms" and in the "stock room".[13] He also put mirrors behind the cameras in some places to remove any blind spots. Ms. Grose's evidence was Mr. Hill had an office upstairs. From there, he could watch the video from the cameras and listen to the audio from the microphones. He could watch and listen to any interaction between the staff, and between staff and customers. He could also observe the processing of bookings such as how much was paid, and whether the clients paid by card.[14]

• [47] Prior to the events that lead to her dismissal, Ms. Grose had two months off work to undergo cosmetic surgery, a facelift. The surgery took place on 16 July 2024. She notified her manager she intended to have a month off (which she thought would be the time she needed to recover). Ms. Grose told her manager she would keep her informed. Her manager said "fine".[15]

• [48] Her recovery took longer than expected, so the week Ms. Grose was due to go back, she rang her manager again and indicated she needed another two weeks. After a further two weeks she rang and notified her manager she needed still more time. The manager said to her "You take as long as you need, we're looking forward to you coming back" because Ms. Grose's shifts had to be covered in her absence.[16]

• [49] Ms. Grose returned to work on 12 September 2024. As usual, she arrived just before 9:30 AM. She noticed Mr. Hill's car in the car park, so she knew Mr. Hill was upstairs in his office. Mr. Hill did not come down initially. At that stage, Mr. Hill and Ms. Grose were the only ones at work because the workers don't start until 10:00 AM.

• [50] Mr. Hill eventually came downstairs. He stood near the reception desk and said, "How are your boobs?" Ms. Grose replied: "You know that's not what I had."[17] According to Ms. Grose, Mr. Hill's manner was "sort of a bit cold, a bit off hand not particularly friendly."[18]

• [51] Work then started to get busy. The phones were ringing, the clients were coming in and the workers were arriving.[19] Ms. Grose was in the laundry room to fold the washing with another worker. While they were in the laundry they had a conversation about the stock of tissues. Sometime earlier, Ms. Grose had been to the stock room and could not find any tissues.[20] She was talking about it with her coworker. Ms. Grose said to the other worker: "Where are the tissues?"; "Who orders them?"; and "Does Chris order them or does the manager?"[21]

• [52] Ms. Grose went back to her desk at reception after folding the laundry. Mr. Hill came down the stairs and to her workstation. He was annoyed. He said "You're always bitching and moaning. If you opened your eyes you'd find where they were."[22] Mr. Hill had obviously seen and heard the exchange Ms. Grose had with her coworker in the laundry.

• [53] After this exchange, Mr. Hill went back upstairs, and work resumed normally. Ms. Grose "was doing phones, people came in... and it was actually a good workday with a lot of bookings."[23]

• [54] Later in the day, in the afternoon, a client came to the door. He informed Ms. Grose he was in the area that day, but he was not looking to book a worker. He would be back in the area in two weeks' time. He was wondering if he could have an "intro" which I understand to be an introduction to the sex workers.[24] According to Ms. Grose, it was not the practice of Spoilers to provide an "intro" because the workers must "do their hair and makeup" without taking a booking.[25] Ms. Grose said to the client "Look you are welcome, but a lot of girls won't want an intro. I can check that for you, but I suggest you could back when you are going to stay."[26]

• [55] Mr. Hill then came "running down the stairs".[27] Ms. Grose gave evidence that "you could hear the thump, thump, thump".[28] He came to the foyer of Spoilers where Ms. Grose was engaged in her conversation with the client. He yelled at her in front of the client. He yelled "and now you are trying to sabotage the joint".[29] Mr. Hill then "mentioned something about customer service".[30] Ms. Grose says "it was loud. The whole place could hear it, including the client".[31] Ms. Grose "did not say a word. I just let him go on".[32]

• [56] Ms. Grose went back to her desk. Mr. Hill then went into the workers' room and "told them they had to intro" and then "made all the girls intro." The client came out, Ms. Grose "went up to him" and [the client] said "I am so sorry". Ms. Grose said in her evidence "I was embarrassed, and he was embarrassed".[33] Mr. Hill was "fuming",[34] "angry and pacing"[35] and he was "opening doors and being erratic".[36]

• [57] Ms. Grose resumed her duties and went back into the laundry to resume the washing because "there was a lot of washing".[37] Ms. Grose gave evidence about what happened next:

"And then one of the other receptionists came in, and she pulled me aside, and she said, 'Can I have a private word with you?' I said, 'Yeah, sure.' And we went up the back to where the girls change, which is the only room that hasn't got cameras, apart from the bedrooms. So, she took me to that room. Well, it's not a room, it's just a space. It doesn't have cameras and microphones that I'm aware of."[38]

• [58] After they got into the changing room area, the other receptionist said to Ms. Grose: "Chris has called me in to take over your shift. You're to give me your keys and leave."[39] Ms. Grose said "What?" and the other receptionist repeated what she had said.[40] Ms. Grose said, "So you're telling me I am sacked?" The receptionist shrugged.[41] Ms. Grose went back to the reception desk, gave the other receptionist the keys, said goodbye to the other girls, got her bag and left and "that was it".

• [59] The only exchange she has had with Mr. Hill since that day was she sent him a text that she had not been paid for her work on her last day. Mr. Hill did not answer the text. After the text, $150 went into her bank account.

The earlier incident prior to her taking time off for the surgery

• [60] After she had given evidence concerning the termination of her employment, Ms. Grose spoke about an incident that occurred two weeks before she took time off to have the surgery where Mr. Hill had mentioned terminating her employment.

• [61] In this incident Mr. Hill ran down the stairs and yelled: "You are nothing but a backstabbing cunt."[42] Ms. Grose responded: "... Stop running back up those stairs. Come back down and say it to my face."[43] An exchange then occurred between the two of them about bookings and the business.[44] Ms. Grose said words to the effect: "Well look at the books, Chris".[45] Mr. Hill was screaming. He yelled: "Look, you can stay, you can go. As far as I'm concerned you can fuck off", and he said, "I don't care whether you stay or leave, but as far as I'm concerned you can fuck off."[46] Mr. Hill did not terminate her employment then because she kept working as normal for the following two weeks until she had time off for her surgery. She resumed work as normal after the surgery until she was sacked.

WAS THE DISMISSAL CONSISTENT WITH THE SMALL BUSINESS FAIR DISMISSAL CODE?

• [62] Based on the evidence of Ms. Grose, I have found JFB is a small business employer with less than 15 employees. It follows the Code applies. The statutory underpinning of the Code is provided in s 388:

(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.

(2) A person's dismissal was consistent with the Small Business Fair Dismissal Code if:

(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person's employer was a small business employer; and

(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal."

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee's conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee's response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer's job expectations.

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements."

• [64] Ms. Grose's dismissal was effected through a coworker. She was dismissed without notice or warning. I have no evidence of any conduct by Ms. Grose that is sufficiently serious to justify immediate dismissal. I am therefore satisfied JFB did not comply with the Code.

WAS THE DISMISSAL HARSH, UNJUST AND UNREASONABLE?

• [65] Under s 385, to be satisfied that a dismissal is an unfair dismissal, I must find the dismissal did not comply with the Code and that it was harsh, unjust and unreasonable. Section 387 prescribes the matters I must take into account when considering whether a dismissal was harsh, unjust and unreasonable. I will now address each of these in turn.

• [66] For a dismissal to be for a valid reason, the reason should be sound, defensible and well founded and not be capricious, fanciful, spiteful or prejudiced.

• [67] This dismissal was communicated, not by Mr. Hill, but by a coworker. No reason was communicated for the dismissal. It was a matter of "hand over the keys and leave." As no reason was communicated, and JFB was not present at the hearing, I have no reason for dismissal to assess. In the absence of evidence of a reason, I cannot find the reason was valid. I therefore find there was no valid reason for the dismissal.

• [68] No reason was communicated by the coworker in the exchange that effected the dismissal. There was therefore no notification of a reason.

• [69] Given the dismissal was communicated through a coworker who basically said "give me your keys and leave", there was no opportunity to respond.

• [70] Ms. Grose was terminated by a communication delivered "on the spot" by a coworker. She was not offered a support person.

• [71] There is no evidence Ms. Grose's performance was unsatisfactory.

• [72] JFB is a small business and does not employ a HR resource. Even considering the lower expectations of a process of termination by a small business, the process used in this case was poor.

• [73] The lack of HR expertise within JFB does not excuse the use of a proxy to terminate a long-term employee by communicating "give me your keys and leave".

• [74] A matter I consider relevant to the fairness of the dismissal is the 15 years of employment of Ms. Grose. Given her years of loyal service, fairness dictates she deserved better than an immediate dismissal communicated through a coworker.[47]

• [75] The following matters are relevant to my consideration of whether the dismissal was harsh, unjust and unreasonable:

• There was no valid reason for the dismissal.
• Ms. Grose was not notified of a reason for her dismissal.
• She was not given an opportunity to respond to any reason.
• She was not given access to a support person.
• There was no evidence the performance of Ms. Grose in her role as a receptionist was unsatisfactory.
• The procedure used to affect this dismissal did not meet the lower standard expected of a small business.
• The lack of HR expertise within JFB does not excuse the use of a proxy to terminate a long-term employee by communicating "give me your keys and leave".
• A relevant matter I have considered is the unfairness of the manner of termination given the lengthy and loyal service of Ms. Grose.

• [76] Having considered each of the matters specified in s 387, I am satisfied the dismissal of Ms. Grose was harsh, unjust and unreasonable.

• [77] I am satisfied Ms. Grose was a person protected from unfair dismissal. I have found she was unfairly dismissed. It follows I may, subject to the requirements of the Act, order Ms. Grose's reinstatement, or the payment of compensation to her.

• [78] Under s 390(3) I must not order the payment of compensation to Ms. Grose unless

(a) I am satisfied that reinstatement of Ms. Grose is inappropriate; and

(b) I consider the payment of compensation is appropriate in all the circumstances.

Is the reinstatement of Ms. Grose inappropriate?

• [79] In her application Ms. Grose stated, "I do not want reinstatement as I don't believe the work environment there would be safe for me."[48] Based on the evidence of Ms. Grose, it is clear her relationship with Mr. Hill has utterly broken down. I therefore do not consider reinstatement is an appropriate remedy.

Is compensation an appropriate remedy in all the circumstances of this case?

• [80] If reinstatement is inappropriate, it does not necessarily follow that a payment of compensation is appropriate. The order of compensation is discretionary. Ms. Grose has suffered financial loss because of the termination of her long-term employment. In all the circumstances I find it is entirely appropriate to order the payment of compensation.

• [81] Section 392(2) requires all the circumstances of the case to be considered when determining an amount to be paid as compensation in lieu of reinstatement. Section 392 prescribes certain matters I must consider in assessing compensation. What follows is my assessment of the amount of compensation against each of those prescribed matters.

Section 392(2)(a): Viability of the employer's business

• [82] Given the failure of JFB to participate in this proceeding I have no evidence as to whether an order for compensation would affect it.

Section 392(2)(b): The length of Ms. Grose's service with JFB

• [83] Mr. Grose was employed by JFB for fifteen years. This is a lengthy period of employment. It follows there is no discount in the amount of compensation by reason of her length of employment. The lengthy period of employment justifies an increased rather than discounted level of compensation.

Section 392(2)(c): The remuneration Ms. Grose would have received or would have been likely to receive if she had not been dismissed.

• [84] Ms. Grose had worked the same hours for fifteen years. At the time of her dismissal, she was 63 years old. Her evidence was, at the time she was dismissed, she had "two years until I retired." Ms. Grose was expecting to work (at least) until her retirement age.

• [85] Given she had worked for JFB for 15 years, she had a legitimate expectation to work for another two years. I therefore calculate the remuneration she would have received or would likely to have received had she not been dismissed was: $350 (weekly wage) x 52 weeks x 2 years: $36,400.

• [86] Under s 392(6)(a) the compensation cap for unfair dismissal compensation is limited to six months' pay. I will therefore limit this calculation to 26 weeks, which is: $350 (weekly wage) x 26 weeks = $9,100.00.

Section 392(2)(d): The efforts of Ms. Grose to mitigate the loss she suffered as a result of the dismissal

• [87] Because of her age and the difficulties involved in getting a similar job in a sex work venue, Ms. Grose has not sought further employment.

• [88] Around Christmas 2024, Mr. Grose was offered a job doing receptionist work at a sex work venue in Keysborough.[49] She did not accept it because: it was a "long way from home,"[50] it was "very hard, stepping into a place where you know no one"[51] and "she did not have confidence and felt demoralised by the way she was treated" by Mr. Hill.[52]

• [89] One of the reasons she did not seek further work was that, during the period between her dismissal and the hearing of the matter, Ms. Grose had corrective surgery on her eyes following her earlier facelift.[53] She took time to recover from that surgery.

• [90] I understand Ms. Grose's reasons for not seeking employment. I also understand, given her age and line of work, it would have been difficult to obtain alternative employment. However, s 392(2)(d) required Ms. Grose to provide evidence she has taken reasonable steps to mitigate the impact of her dismissal. Accepting as I do the limitations on the sort of work she could have applied for; I am not satisfied she has done enough to support a finding she has taken reasonable steps. I therefore intend to deduct two weeks' pay ($700) for any compensation order.

Section 392(2)(e): Amount of remuneration earned, and reasonably likely to be earned from employment or other work during the period between the dismissal and the making of the order for compensation; and

s 392(f) the amount of any income reasonably likely to be so earned between the making of the order for compensation and the actual compensation.

• [91] On the evidence before me, I can infer Ms. Grose remains unwaged and therefore is unlikely to have earned any remuneration or income between the time of her dismissal and the order for compensation.

Section 392(2)(g): Any other matter the Commission considers relevant

• [92] There is no other matter I consider to be relevant for the purpose of assessing compensation.

• [93] Section 392(5) prescribes that I should make a deduction from compensation if misconduct contributed to the decision to dismiss. There is no evidence of misconduct in this case.

• [94] The amount of compensation I order will not include a component for shock, humiliation, or distress.

• [95] I have taken account of the compensation cap of 26 weeks' pay in my assessment under s 392(2)(c) above.

• [96] As I have now considered each of the factors under s 392, I will calculate the amount of compensation by reference to the Full Bench approved method of calculation known as the Sprigg Formula.

• [97] A Full Bench in Bowden v. Ottrey Homes Cobram and District Retirement Villages[54] approved a method of working out appropriate compensation adopted by an earlier Full Bench in Sprigg v. Paul's Licensed Festival Supermarket[55] under previous legislation. The method is known as the Sprigg Formula. In summary, the steps applied in the Sprigg Formula are:

Step 1: Estimate the remuneration Ms. Grose would have received or would have been likely to have received if the employer had not terminated her.

• [98] I have calculated, if Ms. Grose's employment had not been terminated, she would have continued to be employed for a period of 2 years (or 104 weeks) at the wage of $350 a week. Taking into account the compensation cap set at 26 weeks, I have limited that calculation to 26 weeks' pay which is: 350 (weekly wage) x 26 = $9100.

Step 2: Deduct monies earned since termination. A failure to mitigate loss may lead to a deduction in the amount of compensation awarded.

• [99] For reasons I have given earlier, I have decided Ms. Grose failed to mitigate the loss she experienced because of her termination. I decided to deduct $700 or two weeks' pay as a result. Therefore, step 2 would involve deducting $700 from $9100. It follows 9100 - 700 = $8400.

Step 3: Deduct an amount for contingencies. This is a calculation for future economic loss.

• [100] I make no deduction for contingencies.

Step 4. Consider the impact of taxation and adjust the figure accordingly.

• [101] I have considered the impact of taxation and have elected to settle upon a gross amount of $8,400.00. I leave the taxation for determination in accordance with applicable tax legislation.

• [102] I have taken account of the compensation cap at Step 1.

Assessment of compensation in all the circumstances of the case

• [103] Under s 392(2), I am required to ensure the "amount of compensation is considered appropriate having regard to all the circumstances of the case." I have considered all the circumstances, and for the reasons I have provided, I am satisfied a gross amount of $8,400.00 together with a superannuation is appropriate.

• [104] I have found the dismissal of Ms. Grose on 12 September 2024 was harsh unjust and unreasonable and that compensation is the appropriate remedy. I am satisfied the compensation figure arrived at does not yield an amount that is clearly excessive or inadequate.

• [105] I am also satisfied a remedy of compensation in the gross amount of $8400, taxed as required by law together with superannuation calculated on that amount, is appropriate in all the circumstances of this case. An order to that effect will issue with this decision.[56]

[1] Andrew Campbell v Groovy Freighters [2014] FWC 3458.

[2] Section 383(b): For reasons explained below, I find that JFB was a small business employer.

[47] The lengthy and loyal service of an employee was held to be a matter that should be taking into account in assessing whether a dismissal was unfair in Telstra Corporation v. Streeter [2018] AIRCFB 15, [27].

[54] [2013] FWCFB 431.

[55] [1998] AIRC 989; (1998) 88 IR 21.

[56] PR786351.

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