s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - Failure of Respondent to attend or engage with the proceedings - Election to proceed in the absence of the Respondent - Unfair dismissal found - Reinstatement not appropriate - Compensation appropriate - Compensation ordered.

• [1] This decision concerns an application for an unfair dismissal remedy made to the Fair Work Commission (the Commission) by Ms Kate Southern, in relation to the termination of her employment by her employer, Lucky 88 Enterprises Pty Ltd (Lucky 88 Enterprises or the Respondent). In her application, Ms Southern claims her dismissal was unfair.

• [2] The Respondent has not meaningfully engaged in these proceedings and my decision has been made without an appearance, submissions or evidence from Lucky 88 Enterprises. The Commission's attempts to engage with the Respondent are set out below. As a result of the Respondent's failure to engage with those attempts, I was satisfied that the Respondent did not wish to participate in proceedings before the Fair Work Commission and that it was fair in all the circumstances that I proceed to determine Ms Southern's application in the absence of the Respondent.

• [3] Ms Southern appeared at and gave submissions and evidence about her application at hearings conducted by me on 9 and 20 January 2025.

• [4] After consideration of the material before me, I find that Ms Southern was unfairly dismissed, that reinstatement is not appropriate and that compensation is appropriate and is ordered for payment.

• [5] The following attempts to engage with the Respondent and have them provide submissions or evidence include the following;

• On 28 October 2024, in response to an email from the Commission providing the Applicant's Form F2 to Mr George Sleiman, the contact person listed for the Respondent in the Applicant's Form F2, Mr Sleiman requested that correspondence needing to go to the Respondent be forwarded to an email address, payslips@lucky88.net.au.

• After that advice correspondence from the Commission was routinely sent to that address and an email was sent to that address seeking contact and the provision of the name of a contact person.

• No response to that email was ever received by the Commission from payslips@lucky88.net.au. No response to any further correspondence sent to that email address by the Commission was ever received by the Commission.

• A conciliation conference, to be convened by the Commission's conciliation staff was listed for 8 November 2024. No representative of the Respondent attended the conciliation on 8 November. The Commission attempted to contact the Respondent, calling the mobile number of George Sleiman provided on the Applicant's Form F2. Mr Sleiman answered the call, the following is the notes of that interaction taken by the Commission's employee:

The employer was nominated as George Sleiman at Wellington Park Kennels, he refused to attend and when rung said he was not the Applicant's employer (although she reported to him) but an employee of Precise Training which leases the site from the employer Lucky 88.

George and his brother Peter Sleiman own Precise Training together. George refused to advise me as to who was the correct employer or any details (address, telephone number or name) of Lucky 88. Peter Sleiman owns a number of businesses including Lucky 88.

I rang the telephone number [omitted] for Lucky 88 which is a call centre and they could not put me in touch with Peter Sleiman, I left a message but don't expect to hear back. An address that has appeared in searches in relation to Peter Sleiman is [omitted].

• The matter was allocated to my Chambers on 14 November. On 18 November, my Chambers sent an email to the Parties, notifying them that the matter had been allocated to me and requesting the Applicant provide Chambers with copies of her most recent payslips, to assist the Commission in determining who she was employed by.

• A Notice of Listing and Directions were then sent to the Parties on 28 November 2024, listing the matter for hearing of the merits of the matter on 9 January 2024. This email was sent to both payslips@lucky88.net.au and george@avsgroup.com.au. The Notice of Listing, Directions and a printout of the contents of the email were also mailed, by express post, to both [omitted], the address identified by the Commission in searched in relation to Mr Peter Sleiman and Lucky 88 Enterprises Pty Ltd and to Wellington Park Kennels, [omitted], the address specified by the Applicant in her Form F2.

• On 13 December, my Chambers sent an additional email to the Respondent reiterating that the Directions issued on 28 November required the Respondent to file and serve its material in reply by 4:00PM Friday, 3 January 2025.

• At the hearing on 9 January, Ms Kate Southern appeared on her own behalf and no representative of the Respondent attended. My Chambers called Mr George Sleiman's mobile number at 10:31 that day, the phone rang indefinitely, with no opportunity for a message to be left. At 10:35, my Chambers called Mr Sleiman's mobile number again with no answer. An email was also sent to the Parties at 10:35, (including both payslips@lucky88.net.au and george@avsgroup.com.au) prompting the Respondent to join the hearing and providing the Microsoft Teams link to join.

• The hearing took place on 9 January without the Respondent in attendance. During the 9 January hearing, I made the decision to adjourn the matter to a later date, to give the Respondent a final opportunity to file such submissions in evidence as it may have wished in response to the Commission's earlier Directions. A transcript of the hearing was also made and sent to the Respondent on 10 January 2025.

• Later on 9 January, an email was sent to the Parties, listing the matter for a further hearing on Monday, 20 January 2025.

• At the second hearing of this matter before me, at 3:30PM on Monday, 20 January 2025, Ms Kate Southern appeared on her own behalf. No representative of the Respondent attended the hearing. At 3:30, my Chambers emailed the Parties, prompting the Respondent to join the Hearing, which did not occur.

• [6] As a result of these attempts to contact the Respondent, I was satisfied that it did not wish to participate in proceedings before the Fair Work Commission and that it was fair in all the circumstances that I proceed in the absence of the Respondent.

Section 396 - Initial matters

• [7] Section 396 of the FW Act requires the determination of four initial matters before consideration of the merits of the application. Those matters are, whether the application was made within the period required in s 394(2) of the FW Act, whether the person was protected from unfair dismissal, whether the dismissal was consistent with the Small Business Fair Dismissal Code, and whether the dismissal was a case of genuine redundancy.

• [8] In relation to these matters I am satisfied that Mr Southern made her application within the period required in s.394(2). Her dismissal took effect on 13 October 2024 and she lodged her unfair dismissal application the same day.

• [9] I am also satisfied that Ms Southern was a person protected from unfair dismissal without protection being in respect of her employment with Lucky 88 Enterprises. On 8 February 2023, Ms Southern was offered full-time employment with a business by the name of "Precise Training/Wellington Park kennels". At some short time after this offer was made and accepted, the entity employing Ms Southern changed to Lucky 88 Enterprises. Ms Southern says that her employment with Lucky 88 Enterprises commenced on 27 March 2023.[1] Amongst other materials provided by Ms Southern is an Australian Taxation Office Income Statement for the financial year 2023 - 24 and referable to payments made to Ms Southern by Lucky 88 Enterprises to Ms Southern. That and other material satisfies me that there was a period of continuous service by Ms Southern with Lucky 88 Enterprises, from some time in 2023 until her termination of employment on 13 October 2024. Being satisfied that Ms Southern has completed the minimum employment period, it follows that she was also person protected from unfair dismissal at the time of her termination of employment.

• [10] There is no material before me that would lead me to conclude that Ms Southern's dismissal was consistent with the small business fair dismissal code.

• [11] The meaning of genuine redundancy as set out within s.389 which contains three essential elements; that the person's employer no longer required the job to be performed by anyone because of changes in the operational requirements of the employer's enterprise; that they have complied with the obligations of any applicable award or enterprise agreement to consult about the person's redundancy; and that it would not have been reasonable in all the circumstances for the person to be redeployed either within the employer's enterprise or that of an associated entity of the employer.

• [12] I am not satisfied of any of these essential elements.

• [13] While the termination of employment letter to Ms Southern sets forth that her termination arose because of the employer experiencing financial difficulties due to a lack of work in their industry, Ms Southern is sceptical of the claim, giving evidence that she saw advertisements by her employer for new employees during her notice period. This evidence was given in response to the following questions from me;

"... Do you agree with the statement about why you were dismissed?---No.

And why is that?---Well, considering they advertised for new staff within my two-week notice period. There was peak season coming up, in which case they employed another five people after I left.

How did you become aware that they had employed further people?---I became aware of the advert within my two-week notice period and probably a couple of weeks after that, I was aware of at least one person employed and then over the course of the - you know the following weeks, I heard of others. I started a new job and found out that one of the people who used to work at where I was currently working had gone to work at Wellington Park as well. So that was interesting. It's coincidental."[2]

• [14] Depending on the costs involved, advertising for new staff during a person's notice period could suggest that a business has overstated its poor financial position or that it no longer requires a person's job to be done by anyone. While not definitive of the subject, Ms Southern's evidence leans against a finding that her dismissal was motivated by the need to reduce costs or that the Respondent no longer required her job to be done by anyone.

• [15] Further, Ms Southern submits and I agree that her employment was covered by the Miscellaneous Award[3], which provides for consultation about major workplace change likely to have significant effects on employees in clause 27. The definition of "significant effects" in clause 27.5 includes termination of employment. It follows that there was an obligation on the Respondent to consult with Ms Southern about how likely termination of employment. There is no evidence before the Commission that there was any such consultation and Ms Southern's evidence is that there was not.[4]

• [16] Ms Southern also contests whether any consideration was given by the Respondent to her redeployment, either within its own enterprise or that of an associated entity. Her evidence on the subject was that, within a short period of being notified of her termination of employment, new employees started within the enterprise and that advertising for new employees continued after her employment ended. Ms Southern considers, and I concur, that this advertising would indicate redeployment to another position was not considered by the Respondent and that, as such, a finding is not available under s 389(2) that redeployment would not have been reasonable in all the circumstances.

• [17] These matters, taken as a whole, lead me to conclude that Ms Southern's dismissal was not a genuine redundancy.

• [18] I turn now to consideration of the merits of Ms Southern's application.

• [19] The legislative provisions relevant to this matter are set out in s 387 of the FW Act, which is as follows:

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant."

• [20] So far as it is relevant to the circumstances of this case, a dismissal is unfair, in the case of a person protected from unfair dismissal, when that person is dismissed in a manner that was harsh, unjust or unreasonable, taking into account the criteria within s 387. I will deal with each of the criteria within s 387 in turn.

(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)

• [21] To be a valid reason, the reason must be "... sound, defensible or well-founded." A reason which is "... capricious, fanciful, spiteful or prejudiced ..." cannot be a valid reason.[5] The reason for termination must be defensible or justifiable on an objective analysis of the relevant facts.[6] The valid reason for termination is not to be judged by legal entitlement to terminate an employee, "... but [by] the existence of a reason for the exercise of that right" related to the facts of the matter.[7] Ascertainment of a valid reason involves a consideration of the overall context of the "practical sphere" of the employment relationship.[8]

• [22] On Monday, 30 September 2024 at 4:34 PM, Ms Southern received the following email from her employer, sent from payslips@lucky88.net.au, terminating her employment;

As per our conversation. Over the last several months, we have experienced financial difficulties due to lack of work in our industry. We have explored many options. Unfortunately, our efforts have been unsuccessful, and we find that we must reduce our workforce to ensure the financial stability of the company.

It is with deepest regret that I inform you that your position is one that will be eliminated effective week ending the 13th of October 2024.

Please accept our appreciation for your contributions during your employment with us.

• [23] The letter was given to Ms Southern after a meeting on 30 September 2024with George Sleiman and Amelia Todd, her supervisor. Ms Southern was told in the meeting she would be dismissed, however was not give much of an explanation about her dismissal in the meeting, which commenced at about 4:15 PM and had ended by 4:34 PM when Ms Southern received the above termination letter.

• [24] Given that there has been no appearance in these proceedings from the Respondent, there is some difficulty in determining what may be relied upon by the Respondent as its "valid reason" for Ms Southern's termination. Nonetheless, its letter of 30 September advises Ms Southern that she was to lose her job because of financial difficulties arising from the lack of work in "our industry", presumably being a reference to pet boarding kennels.

• [25] Ms Southern's evidence on this matter includes the matters referred to above in relation to consideration of genuine redundancy, in which she notes advertising for new employees within her notice period. She gave this further evidence about Wellington Park Kennel's workload, which she believes was not undergoing a downturn and from which she draws the view that hers was an unfair dismissal. After referring to her view that a peak business period was coming, Ms Southern elaborated that the peak periods were "when people generally go away on holidays. So at Christmas, Melbourne Cup Day, school holidays, all of those types of things. Public holidays. That's classed as peak period."[10]

• [26] Ms Southern also gave evidence that after the employing entity changed to Lucky 88 Enterprises, she continued to perform ad hoc work for Precise Training as a means to bolster her income. That work however stopped, which Ms Southern attributed to a deteriorating relationship with Ms Todd.[11]

• [27] In her written submissions, Ms Southern noticed that by 30 September 2024, her rostered hours had been changed, from which she concludes that by 29 September 2024, a decision had already been made to dismiss her.[12] She submitted about the subject;

"Notwithstanding there was no valid reason for the dismissal, the decision to dismiss me was made at the latest on 29 September 2024, when Amelia Todd emailed me a new roster for the week commencing 30 September 2024. This new roster reflects the incorrect notice period of 1 week I was subsequently advised of by George Sleiman on 30 September 2024 and to ensure I was under the supervision of Amelia Todd during this final week."[13]

Ms Southern suspects that her age (50) contributed to her dismissal;

"Amelia Todd was my immediate manager and micro managed me from the start. I requested meetings, and walk throughs of the kennels, to ensure that I was doing task the way they needed to be in this particular kennels. There were no policies or procedures to follow other than what was governed by relevant legislation. As such I was directed to write a manual. Despite it never being used.

As time went on, I found my feet and grew in confidence within the role, however it was clear that Amelia didn't like me. She told me in my first year of being there that she would not have employed me if she knew my age and also prevented me from employing a very suitable applicant because the applicant was over the age of 35 years."

• [28] On the basis of Ms Southern's evidence, which I accept unreservedly, I do not find there was a valid reason for Ms Southern's dismissal.

(b) whether the person was notified of that reason

• [29] It is well established that consideration of s 387(b) is directed to whether or not the dismissed person was notified of the valid reason for their termination, before the decision to dismiss them was made, with it being expected that the notification of the valid reason is in explicit terms.

• [30] As I have not found there was a valid reason, further consideration of this criterion is unnecessary.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

• [31] For the Commission to have regard to whether an employee has been given an opportunity to respond to the reason for dismissal, there needs to be a finding that there is a valid reason for dismissal.[14] While so, it is also accepted that "an opportunity to respond" amounts to an opportunity to provide reasoning to a decision maker that would, all things being equal, allow a reasoned explanation to cause the decision maker to accept what is proffered and to change from their foreshadowed path.[15]

• [32] A provision in predecessor legislation, requiring there not be dismissal until "the employee has been given an opportunity to defend himself or herself against the allegations made", has been held to be a requirement not needing any particular formality, being "intended to be applied in a practical, common sense way so as to ensure that the affected employee is treated fairly.[16] Where the employee is aware of the precise nature of the employer's concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of the section".[17]

• [33] Ms Southern was notified of her dismissal in advance of it occurring, being given written notice on the subject. Given that I have not found there was a valid reason for her termination of employment, consideration of this criterion is a neutral factor in my overall determination of whether hers was an unfair dismissal.

(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

• [34] Although Ms Southern was only told of the decision to dismiss her once it had been made, she had the opportunity to briefly respond, however with the opportunity being limited, both by time and a lack of clarity about the reasons for her termination of employment.

• [35] Ms Southern was not aware that she would be in need of a support person when she was called into the meeting with the Respondent. Notwithstanding, she did not ask for a support person to be present consideration of this criterion is again a neutral factor in my overall determination of whether this is an unfair dismissal.

(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal

• [36] No allegations of unsatisfactory performance have been directed to Ms Southern and so consideration of this criterion is also a neutral matter in my determination as to whether Ms Southern was unfairly dismissed.

(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

• [37] There is no evidence before me that would suggest the size of the employer's enterprise likely impacted or did impact on the procedures it followed in effecting Ms Southern's dismissal and so this criterion is a neutral consideration in my overall determination of whether hers was an unfair dismissal.

(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

• [38] There is no evidence before me as to the absence or otherwise of dedicated human resource management specialists or expertise in the enterprise of Lucky 88 Enterprises and so this criterion is also a neutral consideration in my overall determination of whether hers was an unfair dismissal.

(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

• [39] Aside from the matters above, I take into account that at the time of the hearing, Ms Southern was 50 years of age[18] with it being accepted that people above the age of 45 generally have some greater difficulty in obtaining replacement employment. I also take into account that when Ms Southern came to be originally employed, she relocated from Adelaide to Melbourne and that she remains in Melbourne because she was unable to afford to relocate.

• [40] After considering each of the criteria within s 387, I am not satisfied there was a valid reason for Lucky 88 Enterprises' dismissal of Ms Southern.

• [41] The FW Act requires the Commission to consider whether a dismissal was harsh, unjust or unreasonable by taking into account the matters at ss 387 (a) to (h). The meaning of the term 'harsh, unjust or unreasonable' was considered by the High Court of Australia in the matter of Byrne and Frew v Australian Airlines Limited:

"It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted."[19]

• [42] It has been further held that a dismissal may be unjust, because the employee was not guilty of the misconduct on which the employer acted; unreasonable, because it was decided on inferences which could not reasonably have been drawn from the material before the employer; and/or harsh, because of its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct.[20]

• [43] I find that Ms Southern' dismissal was an unfair dismissal, being each of harsh, unjust and unreasonable. It is harsh and unjust as there is no apparent valid reason for her dismissal and it is unreasonable since the former employer could have discussed its business situation with Ms Southern in order to find a mutually acceptable alternative to dismissal, but chose not to.

• [44] The sections of the Act dealing with remedy once a finding of unfair dismissal has been made are set out in ss 390 to 393.

• [45] Pursuant to s 390(3), an order for the payment of compensation to a person must not be made unless the Commission "is satisfied that reinstatement of a person is inappropriate" and the Commission "considers an order for payment of compensation is appropriate in all the circumstances of the case."

• [46] Ms Southern does not argue that reinstatement should be considered by the Commission in the event of a finding of unfair dismissal. After reviewing the evidence and other material before the Commission I concur that in this case, reinstatement would be inappropriate.

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

• [47] Having determined that reinstatement is inappropriate, compensation may only be ordered if the Commission considers an order for payment of compensation is appropriate in the circumstances of the case (s 390(3)(b)). That is, an order for compensation is not automatic if reinstatement is found to be inappropriate, and is instead a discretion to be exercised, subject to certain further consideration. In this regard, s 392(2) of the FW Act requires all of the circumstances of the case to be taken into account when determining an amount to be paid as compensation to the applicant in lieu of reinstatement, including:

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

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

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

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

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

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

• [48] I consider each of these criteria and the circumstances of the case below.

Effect of the order on the viability of the Respondent's enterprise

• [49] There is no material before me that would enable a finding of any type about the effect of an order for compensation on the viability of the Respondent's enterprise.

• [50] Ms Southern's employment, first with the original entity, Precise Training/Wellington Park Kennels and second with Lucky 88 Enterprises was not long. She commenced with the first entity on 27 March 2023, and was employed for a total period of slightly more than 18 months. This is neither exceptionally lengthy employment nor very short employment. Because of this, her length of employment does not compel a change in the amount of compensation I would order.

Remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed

• [51] Determination of the anticipated period of remaining employment with the Respondent that the Applicant may have had in Ms Southern's case has some difficulties.

• [52] If she had not been dismissed, Ms Southern's employment is likely to have continued for some time. Even though she had some difficulties with her employer, there was a financial imperative for her to continue working as she did, at least until she was able to obtain suitable alternative employment. That imperative would be reinforced by the fact that she had moved from Adelaide to Melbourne and a return would incur cost.

• [53] By late September 2024, when Ms Southern was given notice of her termination of employment, she considered the workplace to be toxic, which speaks to the likelihood that the employment relationship would not continue indefinitely. A person who feels they are not valued by their employer or is being marginalised in the workplace would likely seek alternative employment. While it could be argued that in the circumstances, there would be some doubt Ms Southern's employment would have continued for six months or longer. the fact of the matter was that by 20 January 2025 when the hearing of her application was convened, being more than four months after her termination of employment, Ms Southern had still not obtained full-time employment at the same or higher wage rate as she was paid by Lucky 88 Enterprises.

• [54] These considerations lead me to the view that the anticipated period of employment is six months; that is, until mid-April 2025.

Efforts of the Applicant to mitigate the loss suffered by the Applicant because of the dismissal

• [55] Ms Southern related to the Commission the effort she had taken to obtain further employment after being dismissed, which included seeking and obtaining alternative employment within the notice period (noting that it is for less hours and less pay and is a casual position). I am satisfied those efforts are sufficient for the purposes of the obligation she had to mitigate the loss she suffered because of her dismissal.

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

• [56] Ms Southern's evidence is that she obtained alternative employment before her termination of employment from Lucky 88 Enterprises took effect and remained in that employment at the date of the hearing. That employment commenced on 20 October 2023 and involved working as a casual employee for an animal shelter. In her new employment Ms Southern works three shifts per week, as well as being available for undertaking on-call work, getting paid when she is called out.[21] She estimates that in the period until the date of the hearing, she had been working an average of between 35 and 38 hours per week.[22] Despite being a casual rate of pay, the rate was about $2.50 per hour is less than the hourly rate she was receiving from Lucky 88 Enterprises.[23] Further, her new employment, being casual employment, did not give her access to paid leave. Ms Southern continues to look for alternative and better paying employment.

• [57] Given that I do not have precise information about the payments made to Ms Southern in her new employment and only have general evidence on the subject and that I have found the anticipated period of employment is six months I consider it more appropriate for the purposes of this criterion to estimate the amount of remuneration likely to be received by Ms Southern in a six month period (which in this case would end on 13 April 2025). I consider that use of this estimate serves both parties, inasmuch as it allows an estimate to be made about the deduction for remuneration earned elsewhere for the whole anticipated period of employment. I do not consider that a use of this estimate would skew my determination of compensation unfairly in the direction either of the Applicant or the Respondent.

• [58] My calculation of the amount of remuneration likely to be received by Ms Southern in the six month period following her dismissal by Lucky 88 Enterprises is set out in the table below.

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

• [59] I rely upon my comments above in relation to calculation of the amount of remuneration likely to be received by Ms Southern in a six month period.

• [60] I do not consider there are other relevant matters to be taken into account in setting an appropriate order for compensation.

Compensation - how is the amount to be calculated?

• [61] The well-established approach to the assessment of compensation in unfair dismissal matters 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] The approach and Sprigg reasoning has been confirmed several times in Full Bench decisions, including in ERGT Australia Pty Ltd v Kevin Govender.[25]

• [62] 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.

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.

• [63] At the time of her dismissal, Ms Southern was paid at an hourly rate of $35.90 for 37.5 hours per week. Her employment offer was for full-time position with a salary of $70,000.[26]

• [64] It follows that my estimation of the remuneration Ms Southern would have received or have been likely to have received if her employment had not been terminated is $35,000 for a six month period. Added to that amount is $4,025, being the amount of statutory superannuation contributions Ms Southern would have received for the anticipated period of employment on the basis that the applicable rate is 11.5% from 1 July 2024.

• [65] The second step in Sprigg requires the deduction of monies earned since termination, with the only exclusions being monies received from other sources and unrelated to work done. As set out above Ms Southern obtained alternative employment shortly after being dismissed. The amount she would have earned until the end of 6 months after being dismissed by Lucky 88 Enterprises (that is, 13 April 2025 and a total of 25 weeks) is about $23,380 in wages, net of the casual loading for the purposes of equivalence with her assumed earnings with the Respondent, and the amount of $2,689 for the purposes of superannuation.

• [66] These amounts are calculated as follows;

Comparator non-casual rate; ie less 25% casual loading

• [67] It is necessary to consider the impact of both favourable and unfavourable contingencies on the amounts likely to be earned by the applicant for the remainder of the anticipated period of employment,[27] noting that it may not be appropriate to deduct contingencies if all of the projected period of continued employment has passed.[28] In Ms Southern' case, I find there are none that ought to be taken into account in this matter.

• [68] I have considered the impact of taxation but have elected to settle a gross amount as set out in the table below and the compensation to be ordered will be subject to taxation according to law.

• [69] 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."[29]

• [70] I am satisfied that the compensation to be ordered by me is proportionate to the circumstances of the case. In this regard, I consider the total quantum to be appropriate, with no deductions either for efforts to obtain further employment, or post-termination earnings.

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

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

• [72] 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. I have not identified misconduct on the part of Ms Southern, therefore no deduction is made for that purpose.

• [73] My calculation of the amount payable to Ms Southern is set out in the following table:

1. Estimate the amount the employee would have received or would have been likely to receive if the employment had not been terminated,

26 weeks projected lost income at the rate of $1,346.25 per week.

Employer superannuation contribution - 11.5% (as applicable after 1 July 2024)

Less 25% casual loading (for the purposes of comparison) = $935.20

• half of the employee's annual wage OR
• the compensation cap, which is $87,500 for 2024-25

In Ms Southern's case the compensation cap is $35,000 being $1,346.25 x 26.

• [74] An order for compensation consistent with the above table will be issued by me at the same time as this decision.[30] The order will require a payment of wages in the amount of $11,622, to be taxed according to law, and of superannuation in the amount of $1,337, to be paid into Ms Southern' nominated superannuation fund, each to be paid within 14 days of the date of this decision.

[3] See the discussion of coverage of the Miscellaneous Award as it applies to the pet boarding industry in United Voice v Gold Coast Kennels Discretionary Trust t/a AAA Pet Resort [2018] FWCFB 128.

[5] Selvachandran v Peteron Plastics [1995] IRCA 333; (1995) 62 IR 371, 373.

[6] Robe v Burwood Mitsubishi Print R4471 (AIRCFB, Ross VP, Polites SDP, Foggo C, 11 May 1999).

[7] Miller v UNSW [2003] FCAFC 180 (Gray J), [13].

[8] Selvachandran v Peteron Plastics [1995] IRCA 333; (1995) 62 IR 371, 373.

[11] Applicant's Witness Statement, p.1.

[13] Applicant's Outline of Submissions, [14].

[14] Chubb Security Australia Pty Ltd v Thomas (unreported, AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000) Print S2679 [41].

[15] Wadey v YMCA Canberra [1996] IRCA 568 cited in Dover-Ray v Real Insurance Pty Ltd [2010] FWA 8544; (2010) 204 IR 399 at [85].

[16] Royal Melbourne Institute of Technology v Asher (2010) 194 IR 1; [2010] FWAFB 1200 at [26] citing Gibson v Bosmac Pty Ltd [1995] IRCA 222; (1995) 60 IR 1 at 7 (Wilcox CJ).

[17] Gibson v Bosmac Pty Ltd [1995] IRCA 222 (5 May 1995); [1995] IRCA 222; (1995) 60 IR 1 at 7 (Wilcox CJ).

[19] [1995] HCA 24 (McHugh and Gummow JJ), [128].

[20] Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1,10 citing Byrne v Australian Airlines Ltd [1995] HCA 24 (McHugh and Gummow JJ), [128].

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

[25] [2021] FWCFB 5389, [35].

[27] Enhance Systems Pty Ltd v Cox [2001] AIRC 1138, [39]

[28] Bowden v Ottrey Homes [2013] FWCFB 431, [54].

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

[30] PR785370.

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