• [58] In my view, Compass did not put on an evidentiary case that rose to those submissions.

• [59] I am not satisfied on the evidence that Compass has established that Ms Budzinauskas engaged in the conduct alleged in Allegations 3 and 4. As this was the basis for the dismissal, I find that there was no valid reason for the dismissal related to Ms Budzinauskas's capacity or conduct.

Notification of reason and opportunity to respond

• [60] As I am not satisfied that there was a valid reason for the dismissal, these criteria have no application to the present circumstances.[47]

Any unreasonable refusal by Compass to allow Budzinauskas to have a support person

• [61] Compass did not unreasonably refuse to allow Ms Budzinauskas to have a support person present in relevant discussions. To the contrary, the letters from Compass to Ms Budzinauskas of 14 October 2024, 17 October 2024, 13 November 2024 and 10 December 2024 invited her to bring a support person of her choice to the meetings to which they referred. The response meeting that had been scheduled for 17 October 2024 was postponed to allow for Ms Budzinauskas's support person to attend.

The size of Compass's enterprise, and access to dedicated human resource management specialists or expertise

• [62] Compass submitted that it is "a large employer and it has comprehensive procedures and guidelines to deal with employee performance"[48] and that it has "dedicated human resource management specialists (HR Specialists) in its business".[49] Any unfairness in the dismissal cannot be attributed to, or ameliorated by, the lack of available resources or expertise.

• [63] Ms Budzinauskas is 50 years of age. She resides in a regional town in the Shoalhaven area of New South Wales.

• [64] Ms Budzinauskas had more than 10 years service with Compass at the time of her dismissal. The Warning is the only evidence of Compass having raised any issues regarding her performance and conduct prior to the events giving rise to these proceedings. As I have already observed, there was some controversy as to the extent to which Compass could rely on the Warning and I have approached it with caution, In any event, as I am not satisfied on the evidence that Compass has established that Ms Budzinauskas engaged in the conduct alleged in Allegations 3 and 4, I consider that the Warning is of no significance for present purposes.

• [65] I am satisfied that Ms Budzinauskas's dismissal was harsh, unjust and unreasonable as there was no valid reason for her dismissal and having regard to her (relatively unblemished) length of service, her age and her regional location.

• [66] Having found that Ms Budzinauskas was a person protected from unfair dismissal and that she was unfairly dismissed, I have the discretion to order her reinstatement, or to order that Compass pay her compensation.[50] Importantly, a finding of unfairness in the dismissal does not oblige me to order one or the other. The question of whether to order any remedy is a matter within my discretion.[51]

• [67] Reinstatement is not appropriate in this case. The assertions that Ms Budzinauskas made about Compass management, and in particular Mr Pritchard, Ms Grana and Mr Metcalf, lead me to conclude that it would be difficult to reestablish an effective working relationship between them. I also have in mind that Ms Budzinauskas relied on statements from former colleagues which were directed to demonstrating a poor culture and work environment at Compass, or what one of them described as a "psychosocial toxic environment".[52] Finally, Ms Budzinauskas stated that she "would never recommend any body to work for Compass".[53]

• [68] I am satisfied, however, that an order for payment of compensation is appropriate in all the circumstances of this case.[54]

• [69] In assessing compensation, I am required to take into account all the circumstances of the case.[55] In doing so, I will adopt the well-established methodology for assessing compensation in unfair dismissal cases set out in Sprigg v Paul's Licensed Festival Supermarket ("Sprigg")[56], 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 they would have received if they had continued in their employment.

• [70] Step 1 requires an assessment of the remuneration that Ms Budzinauskas would have received, or would have been likely to receive, had she not been dismissed.[57] This requires an estimation of her anticipated period of employment;[58] that is, how long she would have remained in employment but for the dismissal, and the remuneration she would have received, or been likely to receive, during that period.[59] There is an element of speculation in this counterfactual task, as it involves an assessment of what would have been likely to happen in the future had Ms Budzinauskas not been dismissed. In making that assessment, I am required to consider the actual state of facts. In each case, it is necessary for the Commission to address itself to the question whether, if the dismissal had not occurred, the employment would have been likely to continue, or would have been terminated at some time by another means.[60]

• [71] Ms Budzinauskas's evidence was that she had planned to "be like" Cheryl Dale, who was employed by Compass for 25 years.[61] I am mindful she also tendered a significant amount of material that she said demonstrated that she had been bullied and otherwise treated unfairly by Compass for two years, with adverse consequences for her health and wellbeing. However, none of that evidence suggested that she wished to leave the company. To the contrary, it is clear that she was seeking to have her concerns addressed so that she could continue in her employment.

• [72] There is nothing to suggest that, but for its findings regarding Allegations 3 and 4, Compass would have sought to bring the employment to an end.

• [73] On the evidence, I consider that the remuneration Ms Budzinauskas would have received, or would likely have received, had she not been dismissed is an amount equal to one year's remuneration. In my view, had she not been dismissed, she would have continued to work for at least that period.

• [74] Step 2 in Sprigg reflects the statutory requirement that the Commission take into account any amounts earned by Ms Budzinauskas from employment or other work since the dismissal.[62] Ms Budzinauskas stated at the hearing that she had been unemployed for five months and was "finding it hard to get a job in a regional town".[63] I accept that evidence. Accordingly, for the purposes of step 2 in Sprigg, there are no earnings since the dismissal that would require an adjustment to the amount of compensation to be ordered.

• [75] I have considered whether any discount should be made for contingencies,[64] consistent with step 3 in Sprigg. A discount for contingencies is a means of taking into account the various probabilities that might otherwise affect earning capacity.[65] There was nothing presented by the parties to suggest that in the circumstances of this case,[66] a deduction should be made for contingencies.

• [76] With respect to step 4 in Sprigg, I have considered the impact of taxation. I will determine compensation as a gross amount, and it will be for the respondent to deduct any amount of taxation required by law.

• [77] As to the remaining statutory considerations, I observe:

• (1) There is nothing to suggest that any adjustment to any proposed order for compensation is warranted having regard to the viability of Compass's business.[67]

• (2) Ms Budzinauskas was employed by Compass for a little over 10 years.[68] This is a lengthy period that supports a significant compensation order being made.

• (3) Ms Budzinauskas provided virtually no evidence that she had taken reasonable steps to minimise the impact of the dismissal. [69] It was for her to do so.[70] Her evidence was limited to her statement that she was "finding it hard to get a job in a regional town", to which I have already referred. I am mindful that Compass made no submission that any order of compensation should be reduced due to any failure by Ms Budzinauskas to mitigate her loss. Even so, in the absence of any evidence of attempts at mitigation, I consider that it is appropriate to make some deduction from the compensation that I might otherwise order.

• (4) There being no findings of misconduct by Ms Budzinauskas, I am not required to reduce the amount of compensation I would otherwise order.[71]

• (5) In considering compensation I have not included a component for shock, humiliation or distress.[72]

• [78] My provisional conclusion is that it is appropriate in all the circumstances of this case, particularly given that there was no valid reason for Ms Budzinauskas's dismissal, that she receive compensation of 20 weeks pay, plus superannuation. This is a provisional conclusion as the evidence does not permit me to determine the quantum of any order.

• [79] There was no evidence led directly regarding Ms Budzinauskas's remuneration. The only information that I have is an entry in Compass's response to the unfair dismissal application that Ms Budzinauskas was paid $30 per hour, and Ms Budzinauskas's employment contract which provides that she was required to work 76 hours per fortnight. Applying simple arithmetic, I might conclude that she was paid $1,140 per week ($30 times 38), but I am loath to make an order on such tenuous footings.

• [80] In any event, I do not have any evidence to ensure that the compensation cap is applied, which in this case is the remuneration that Ms Budzinauskas received or was entitled to receive in the 26 weeks preceding her dismissal.[73] To be clear, provided that the dollar amount of 20 weeks pay is less than the compensation cap, I would consider it to be appropriate having regard to all the circumstances of the case. If that is confirmed to be the situation, I propose to make an order requiring payment of compensation in that amount, plus superannuation. Otherwise, the compensation will be equal to the compensation cap.

• [81] However, I must confirm the dollar value of an order that Ms Budzinauskas be paid compensation of 20 weeks pay, and the compensation cap in this matter, before finalising my order.

(1) By 4.00pm on 1 September 2025, Compass is to file with the Commission, and serve on Ms Budzinauskas a document setting out:

(a) Ms Budzinauskas's weekly pay at the time of her dismissal; and

(i) the total amount of remuneration that Ms Budzinauskas received, or that she was entitled to receive, (whichever is the higher) in the 26 weeks immediately before the dismissal; and

(ii) if Ms Budzinauskas was on leave without pay or without full pay during any part of that period - the amount of remuneration taken to have been received by her for the period of leave in accordance with the Fair Work Regulations 2009.

(2) If Ms Budzinauskas disputes the evidence produced by Compass in accordance with direction (1), she is to file with the Commission, and serve on Compass, a document setting out the basis of her objection and any evidence in support of that objection by 4.00pm on 8 September 2025.

[1] In this decision, all references to legislation are to provisions of the Fair Work Act

[2] Ms Budzinauskas's evidence in chief was contained in a statement comprising both evidence and submissions, and in a large number of documents referred to in, and filed with, the statement. The statement and documents were marked collectively as Exhibit 5. Ms Budzinauskas's material in reply was contained in a statement that again comprised evidence and submissions. That document was marked Exhibit 6.

[3] Two statements of Cheryl Dale, both dated 28 March 2025; Statement of Elizabeth Gulliford, 17 March 2025

[4] Statement of Jason Sands, 29 March 2025

[5] Statement of Bob Pritchard, Attachment 2

[9] Statement of Bob Pritchard, Attachment 3

[10] There was some controversy as to whether Ms Budzinauskas had made prior arrangements for her support person, Cheryl Dale, to be present at the meeting. The evidence of Mr Pritchard and Ms Dale was inconsistent in this regard. As neither was cross-examined, their respective versions were not tested. However, I do not consider this to be material to my decision.

[11] Statement of Bob Pritchard, par 24

[12] Exhibit 5, document included as part of Section 3, document 3b-3c. There is reference in other evidence to an email Ms Budzinauskas sent to Compass on 24 October 2024. I cannot locate an email with that date in the evidence of either party. However, I cannot assume that the email of 24 October 2024 and the one I have reproduced in part are one and the same.

[14] Exhibit 5, document included as part of Section 4, document 3a

[15] Exhibit 5, document included as part of Section 4, document 3a

[16] Exhibit 5, document included as part of Section 4, document 4c

[17] Exhibit 5, document included as part of Section 4 (not separately identified)

[18] Exhibit 5, document included as part of Section 4, document 4b; Statement of John Metcalf, Attachment 4

[19] Statement of John Metcalf, Attachment 5

[20] Statement of John Metcalf, Attachment 6

[22] Statement of John Metcalf, Attachment 7

[23] Section 396

[24] As prescribed by section 394(2)

[25] Within the meaning of section 382

[26] Within the meaning of section 389

[27] Ms Budzinauskas was dismissed on 23 January 2025, and filed her unfair dismissal application on 30 January 2025

[28] As defined in section 23

[29] Section 385

[30] Section 387

[31] Chubb Security Australia Pty Ltd v Thomas, Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000) at [41]; Read v Cordon Square Child Care Centre [2013] FWCFB 762 at [48]- [49]

[32] Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 at [14]

[33] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371 at 373

[34] Walton v Mermaid Dry Cleaners Pty Ltd [1996] IRCA 267; (1996) 142 ALR 681 at 685

[35] Statement of Bob Pritchard, par 20

[39] Exhibit 5, document included as part of Section 4, document 4h

[43] Statement of Bob Pritchard, par 23

[44] Exhibit 6, page 6 (Digital Hearing Book p 169); Transcript PN218

[45] Exhibit 6, page 6 and 9 (Digital Hearing Book pp 169 and 172)

[47] Chubb Security Australia Pty Ltd v Thomas, Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000) at [41]; Read v Cordon Square Child Care Centre [2013] FWCFB 762 at [48]- [49]

[48] Outline of Submissions by Respondent, par 40

[49] Outline of Submissions by Respondent, par 41

[50] Section 390(1)

[51] Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198 at [9]

[52] Statement of Elizabeth Gulliford, 17 March 2025

[54] Section 390(3)(b); Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206 at [17]

[55] Section 392(2)

[56] [1998] AIRC 989; (1998) 88 IR 21, adopted for the purposes of the Fair Work Act in Bowden v Ottrey Homes Cobram and District Retirement Villages [2013] FWCFB 431

[57] Section 392(2)(c)

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

[59] He v Lewin (2004) 137 FCR 266; [2004] FCAFC 161 at [58]

[60] He v Lewin (2004) 137 FCR 266; [2004] FCAFC 161 at [58]- [59]

[62] Section 392(2)(e) and (f)

[64] Section 392(2)(g)

[65] Ellawala v Australian Postal Corporation, Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000) at [43]

[66] Bowden v Ottrey Homes Cobram and District Retirement Villages Inc T/A Ottrey Lodge (2013) 229 IR 6; [2013] FWCFB 431 at [53]

[67] Section 392(2)(a)

[68] Section 392(2)(b)

[69] Section 392(2)(d)

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

[71] Section 392(3)

[72] Section 392(4)

[73] Sections 392(5) and (6)

[74] See sections 392(6)

Printed by authority of the Commonwealth Government Printer