• [63] Ms Keane gave witness evidence of the medical condition she had suffered as a result of the working environment that has prevented her from finding alternative employment. A medical certificate and referral for specialist care indicates ongoing treatment. The Hearing took place three months after the dismissal, and I observe that insufficient evidence was tendered to explain why the medical condition rendered Ms Keane with no capacity to seek any employment. Ms Keane gave evidence that she had not found employment and relied on Centrelink support. Ms Keane did not provide evidence of other remuneration earned other than reliance on Centrelink payments. In the circumstances, the absence of evidence of efforts to seek employment and incapacity warrants a deduction of two weeks. This reduces the amount of compensation to $9,230.76 gross.

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

• [64] The Applicant provided no evidence of likely income from the date of the dismissal until the order for payment of compensation. Centrelink payment is not relevant therefore I treat this as a neutral consideration.[35]

• [65] The evidence of Ms Keane demonstrates decisions that she made did not help her relationship with her employer and contributed to the work environment. On this basis, I do consider that Ms Keane was not entirely blameless. Despite this, the conclusion on valid reason and procedural fairness remains, but this consideration is another factor to justify the reduction of the compensation to total 6 weeks.

• [66] An order of 6 weeks' pay is awarded and this figure is $9,230.76 gross to be taxed according to law. The Respondent is ordered to make the payment of compensation to the Applicant within 14 days of the order. The applicable tax is to be forwarded to the ATO.

1. I am satisfied that the amount of compensation is appropriate to the circumstances of this case and the criteria for deciding compensation under s.392(2). Misconduct is irrelevant,[36] the figure does not include an amount for shock, distress etc,[37] and the compensation does not exceed the cap.[38]

• [68] An order[39] will be issued for the payment of the net sum ($9,230.76 less tax) within 14 days of this decision into the Applicant's bank account. Superannuation on this compensation is also payable directly into the Applicant's nominated superannuation fund in accordance with the Superannuation Guarantee requirements.

[1] Payslips, Digital Hearing Book ('DHB') pp 267 and 269.

[2] Letter of Termination, Attachment C to the Applicant's outline of submissions, DHB p 29. Employer's Response, attachment A and appendix 1, DHB pp 42-43. However, the payslip of 19 May 2025 shows notice paid in lieu, DHB p 269.

[3] Exhibit A1, Witness statement of Kathryn Keane at [5]-[6], DHB pp 17-18.

[6] Ibid at [44]-[74], DHB pp 22-25.

[7] Medical certificate dated 24 April 2025, DHB p 146.

[8] Email from the Applicant to Joy Hirst on 28 April 2025 at 12.09am, DHB p 145.

[13] Letter of 19 June 2025 responding to the unfair dismissal application, DHB p 39.

[17] Employer's Response, Attachment D, DHB pp 49 - 53.

[18] Employer's Response, Attachment E, DHB p 64.

[19] Alleged warnings, references to patterns of performance in the Employer's Response, the completed Form F3 and Exhibit R1, Witness Statement of Paul Cummaudo.

[20] Dated 5 October 2022, DHB p 108.

[21] Dated 9 November 2022, DHB p 115.

[23] Fastidia Pty Ltd v Goodwin Print S9280 (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000), [43]-[44].

1. [24] Sayer v Melsteel Pty Ltd (2011) FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd [2002] AIRC 317, [69].
2. [25] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371, 373.
3. [26] Walton v Mermaid Dry Cleaners Pty Ltd [1996] IRCA 267; (1996) 142 ALR 681, 685.

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

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

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

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

1. [32] He v Lewin [2004] FCAFC 161, [58].
2. [33] Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O'Callaghan SDP, Foggo C, 28 March 2002), [34] ('Biviano') citing Lockwood Security Products Pty Ltd v Sulocki and Ors PR908053 (AIRCFB, Giudice J, Lacy SDP, Blair C, 23 August 2001), [45].

[34] Biviano, [34] citing Payzu Ltd v Saunders [1919] 2 KB 581.

[35] Sprigg v Paul's Licensed Festival Supermarket (Sprigg) [1998] AIRC 989; (1998) 88 IR 21.

[36] Fair Work Act 2009 s.392(3).

1. [37] Fair Work Act 2009 s.392(4).
2. [38] Fair Work Act 2009 s.392(5).

[39] PR795574.

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