Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Compensation ordered - request to vary compensation amount.

[1] On 9 February 2026, I published a decision and order in this matter, awarding Mr Dale-McCormick (Applicant) an amount of compensation in respect of his unfair dismissal claim under section 394 of the Fair Work Act 2009 (Act).

[2] On 15 February 2026, the Applicant made an application under section 603 of the Act to vary the amount of compensation ordered. The application effectively seeks that the calculation of the remuneration that he "would have received, or would have been likely to receive", for the purposes of paragraph (c) of subsection 392(2) of the Act, be taken to be $1890.18 rather than $1,720. In responding to the present application for a variation, the Respondent has submitted that the Applicant's calculations are incorrect and that the average weekly earnings were $1,723.99 per week.

[3] In a Statement previously published to the parties on 26 February 2026, I indicated that I would ordinarily be very reluctant to depart from an agreed fact. However, I indicated a willingness to revisit the matter on the basis that both parties considered they had been error in agreeing to an average figure. Further to some directions published in the Statement, the parties have provided additional information and a determinative conference was held on 6 March 2025. I allowed the parties to provide further information after that conference, being a set of payslips covering the entirely of the Applicant's period of employment with the Respondent.

[4] A complicating matter in coming to terms with the payment records in this respect is that corrections have at times been made to deal with payroll errors, such that an amount paid in a particular week might not represent work performed in that week. I am grateful for the parties' assistance in navigating these matters.

[5] It became evident that the Applicant's approach to his application to vary the compensation order was to focus on his final 26 weeks of pay to develop an average upon which to basis a forward projection. The Respondent however took the view that there was some seasonality in the work the Applicant had been performing, such that this would be an inaccurate basis upon which to calculate the remuneration the Applicant would have been likely to receive had he not been dismissed.

[6] Upon reviewing the payslip information over the period of employment (which will be recalled was less than a year in any event), there is no clear seasonal pattern other than a low point during the last week of July and the month of August. The assumption of the Applicant remaining in employment for 26 weeks, as noted at paragraph [26] of the decision, is such that the low point would occur during the future predicted period of employment. Taking into the account the payroll amendments and spreading their value across the employment period, I have arrived at an average gross weekly income for the low period of $1,078,14 and $1,781.31 outside that period. Allowing for 22 weeks at the higher figure and 4 weeks at the lower figure, the gross figure (excluding superannuation) is $43,501.40. Applying the 30% reduction I determined in the previous decision gives a figure of $30,451, or $853.03 less than was actually ordered in respect of the non-super component of the compensation order on 9 February. The amount actually ordered on 9 February 2026 has already been paid.

[7] As section 603 only permits me to make a variation to an order, the order ultimately made must still be a compensation order of the type contemplated by section 392 of the Act. That section does not contemplate an applicant in an unfair dismissal case being ordered to make a payment to their former employer, which is what would be required to carry this decision into effect. Accordingly, I will not be making an order to vary the amount set out in sub paragraph 1 of the order dated 9 February 2026.

[8] The superannuation contribution specified at sub-paragraph 2 of the order dated 9 February has not yet been paid by the Respondent. In the course of the determinative conference there was some discussion about the administrative arrangements the Respondent has in place with regards to the payment of superannuation through a clearing house. In all the circumstances, I consider it appropriate to make a variation to sub-paragraph 2 of the order dated 9 February 2026, to take into account the slightly reduced amount. This will be a superannuation contribution of $3,502 rather than the $3,600. This amount is arrived at based on the calculations referred to at paragraph [6] above, the identification of the relevant wage and allowance amounts as superable and the 11.5% contribution rate applicable at the time of the dismissal. The order will also provide additional time to make that superannuation account, in recognition of the administrative arrangements made by the employer and discussed at the determinative conference.

• [9] An order giving effect to this decision is published separately.[1]

[1] PR797548.

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