Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Tocco Italiano Pty Ltd as trustee for B&D Family Trust

Application for relief from unfair dismissal - whether consistent with the Small Business Fair Dismissal Code - whether termination for genuine redundancy - whether harsh, unjust, or unreasonable - application granted - compensation ordered

• [1] Mr Marco Fabbro worked as a Pizza Chef for Tocco Italiano, a restaurant and pizzeria operated by the Respondent, Tocco Italiano Pty Ltd, as trustee for the B&D Family Trust ("Tocco Italiano"). It is common ground that Mr Fabbro was told, on 19 August 2024, that his employment was coming to an end.

• [2] On 23 September 2024, Mr Fabbro applied to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) ("the Fair Work Act") for a remedy, alleging that he had been unfairly dismissed from his employment with Tocco Italiano. Mr Fabbro seeks compensation.

• [3] In summary the main issues in contest in these proceedings were:

(a) whether Tocco Italiano was a small business employer and if so whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(b) in any event, whether the dismissal was a genuine redundancy;

(c) if the dismissal was not consistent with the Small Business Fair Dismissal Code and was not a genuine redundancy, whether the dismissal was an unfair dismissal; and

(d) whether and if so the extent to which Mr Fabbro had suffered any loss, whether he had mitigated his loss, and whether any remedy should be granted.

• [4] In addition, Tocco Italiano initially sought to object to the application on the basis that it was filed out of time. The Respondent subsequently conceded that the employment came to an end on 3 September 2024 and, accordingly, did not press this objection.

• [5] For the reasons set out below I have decided to grant the application.

• [6] Mr Fabbro commenced employment with Tocco Italiano on 31 October 2022. It was not in dispute that the Restaurant Industry Award 2020 applied to Mr Fabbro's employment. Mr Fabbro was a full-time, permanent employee with an annual salary of $80,000.00.

• [7] Mr Fabbro injured his shoulder in April 2024. He was able to keep working. The pain came back prior to the dismissal. He says it interrupted his sleep and got to the point where he could barely move his arm. This prompted physiotherapy sessions and medical investigations. He needed to take sick leave and provided a medical certificate to the Respondent. He says this was the second time he had needed to take sick leave during the whole of his employment with the Respondent. These matters were not in contest.

• [8] On 15 August 2024, Mr Fabbro and Mr Buonocore, an owner of Tocco Italiano, had a text message exchange regarding Mr Fabbro's injury. Mr Buonocore was seeking a copy of a report of an ultrasound that had been taken in relation to Mr Fabbro's shoulder. Mr Fabbro declined to provide it on the basis that the medical certificate he had already provided was sufficient.

• [9] On 19 August 2024, Mr Buonocore wrote to Mr Fabbro, as follows:[1]

Termination of your employment by reason of redundancy

The purpose of this letter is to confirm the outcome of a recent review and restructure of the restaurant's operations that I have conducted considering the economic environment and the impact it has on our business.

As a result of this review, I have had to make a number of decisions, including that the position of Pizza Chef will no longer be required; regrettably this means your employment will terminate.

Based on your length of service, which commenced on 31 October 2022, your notice period is 2 weeks from 21 August 2024. Therefore, your employment will end on 3 September 2024.

We have decided that you will be paid 2 weeks' pay in lieu of the required notice.

You are not entitled to redundancy pay given the application of the Small Business provisions, however, you will be paid your accrued entitlements and any outstanding pay up to and including your last day of employment, and superannuation. This payment along with your statutory entitlements will be paid at the next pay cycle following the 3rd of September 2024.

We thank you for your contribution during your employment with us and we are happy to provide you with a written reference if required; nevertheless if you want, please ask any prospective employers to call me directly for a verbal reference.

We wish you the very best in your future endeavours.

• [10] On 20 September 2024, Mr Buonocore wrote to Mr Fabbro regarding his final payment. That email asserted that Mr Fabbro owed more money to Tocco Italiano than it owed to him.[2]

• [11] In unfair dismissal cases the two main questions are:[3]

• • Was the Applicant "protected from unfair dismissal" at the time their employment ended?[4]

• • Was the Applicant unfairly dismissed?[5]

• [12] These questions are considered in that order. If the Commission is satisfied that the answer to both is yes, then it can consider whether to order a remedy for the unfair dismissal.

• [13] There are various conditions the Applicant must meet to be protected from unfair dismissal. There are also various issues to consider in deciding whether someone has been unfairly dismissed. Issues relating to the Small Business Fair Dismissal Code and genuine redundancy can arise in considering whether the person has been unfairly dismissed and must be decided before considering whether the dismissal was harsh, unjust or unreasonable.

• [14] Section 388 of the Fair Work Act provides for the Minister to declare a Small Business Fair Dismissal Code ("the Code"). Subsection 388(2) provides that a person's dismissal was consistent with the Code if the employer was a small business employer and complied with the Code in relation to the dismissal. The Code is as follows:

The Small Business Fair Dismissal Code comes into operation on 1 July 2009.

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.

• [15] For the purposes of the Fair Work Act, the term "small business employer" is defined by section 23, which provides:

(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.

(2) For the purpose of calculating the number of employees employed by the employer at a particular time:

(a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and

(b) a casual employee is not to be counted unless, at that time, the employee is a regular casual employee of the employer.

(3) For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.

(4) To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee's employment, the employees that are to be counted include (subject to paragraph (2)(b)):

(a) the employee who is being dismissed or whose employment is being terminated; and

(b) any other employee of the employer who is also being dismissed or whose employment is also being terminated.

• [16] "Genuine redundancy" has a particular meaning under the Fair Work Act. Section 389 provides:

(1) A person's dismissal was a case of genuine redundancy if:

(a) the person's employer no longer required the person's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person's dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(b) the enterprise of an associated entity of the employer.

• [17] I will consider this further below. Once various initial matters have been decided, then, if necessary, the Commission will decide whether the dismissal was harsh, unjust, or unreasonable. To do so, the Commission has regard to the matters set out in section 387 of the Fair Work Act.

• [18] As stated above, the application was filed on 23 September 2024. Tocco Italiano provided its response on 7 October 2024. The parties did not resolve their dispute by conciliation.

• [19] I issued directions on 18 October 2024. The matter was listed for hearing on 8 November 2024. Mr Fabbro did not attend because he had injured his back. He subsequently provided a medical certificate to that effect. Mr Buonocore appeared on behalf of the Respondent.

• [20] I issued further directions that day, 8 November 2024. The further directions indicated that the matter would be listed for hearing or determinative conference. After considering the parties' views and whether a hearing would be the most effective and efficient way to resolve the matter, I decided[6] to proceed by way of determinative conference. That determinative conference was held on 23 December 2024. Mr Fabbro appeared for himself and Mr Buonocore again appeared for the Respondent.

• [21] The Applicant gave evidence on his own behalf and also called his former partner Ms Anna Rojatti to give evidence. Ms Rojatti's contribution was hearsay and I have not given it weight. Mr Arturo Buonocore gave evidence on behalf of the Respondent.

• [22] Tocco Italiano filed outlines of argument as to its objections and the merits of the application on 25 October 2024. Mr Fabbro did not file any written submissions or outline of submissions. The parties made submissions at the determinative conference.

• [23] It was not in dispute, and I find that, Mr Fabbro was dismissed, and the dismissal took effect on 3 September 2024. The application was made in time. I am satisfied of the matter in section 385(a) of the Fair Work Act. It was not in dispute and I find that the requirements of section 382 of the Fair Work Act are met. Mr Fabbro was a person protected from unfair dismissal.

• [24] As indicated above the parties were in dispute about the Small Business Fair Dismissal Code and also whether the dismissal was for genuine redundancy. These matters must be considered before considering whether the dismissal was harsh, unjust or unreasonable.[7] This requirement to decide issues in a certain order of priority does not mean they need to be the subject of a separate, preliminary hearing, and this is often not practical where the same facts would, substantially, be considered in both.[8]

Was the dismissal consistent with the Small Business Fair Dismissal Code?

• [25] Tocco Italiano objects to the application in reliance on the Small Business Fair Dismissal Code. If this objection is upheld that is the end of the matter.[9] Section 388 of the Fair Work Act provides that a person's dismissal was consistent with the Small Business Fair Dismissal Code if:

• 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

• the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.

• [26] The Small Business Fair Dismissal Code relates to termination for serious misconduct, misconduct, or lack of capacity. In this case the stated reason for termination was redundancy. Prima facie the Small Business Fair Dismissal Code does not apply. On the Respondent's own case, I am satisfied that the dismissal was not consistent with the Small Business Fair Dismissal Code. I will briefly deal with two other issues in that regard.

• [27] Mr Fabbro sought to argue that the underlying reason for dismissal was his capacity issue related to his shoulder injury. He does this in reliance on the timing of the dismissal, within a few days of a text exchange that he had with Mr Buonocore regarding an ultrasound of his shoulder. This text message exchange was not tendered into evidence, but both Mr Fabbro and Mr Buonocore acknowledged it had occurred. If Mr Fabbro is correct, then there is nothing before me to indicate that the Small Business Fair Dismissal Code was followed in relation to termination on the basis of incapacity. But this is unnecessary to decide given my finding above.

• [28] The parties were also in dispute as to whether Tocco Italiano was a small business employer. Mr Fabbro attempted to assert that Mr Buonocore and his wife were employees of the Respondent. Mr Buonocore said they were not employees. There was also a dispute about whether a particular casual employee was a regular casual employee of Tocco Italiano, employed at the time of the dismissal. During the determinative conference, Mr Buonocore, for Tocco Italiano, gave evidence that his family had two businesses, and three trusts. It was not clear but it appeared that the trusts might have had different corporate trustees. It was not in doubt, though, that the two businesses, and any corporate entities operating them, were controlled by the same people, namely Mr Buonocore and his wife. It is likely that section 23(3) would have applied such that people working in the second business - a cafe - would have been counted towards the number of employees for the purposes of determining whether the Respondent in this matter was a small business employer. However, given my finding, above, as to the substance of the Small Business Fair Dismissal Code, it is not necessary, at this juncture, for me to decide the question of whether Tocco Italiano was a small business employer.

• [29] In light of the foregoing, I am satisfied that the requirement of section 385(c) is met.

Was the dismissal a case of genuine redundancy?

• [30] Tocco Italiano objects on the ground that Mr Fabbro's employment ended by way of genuine redundancy. If this objection is upheld that is the end of the matter.[10] As averted to above this question has to be determined before considering the merits of Mr Fabbro's application,[11] but this can be done in the same hearing (or determinative conference).[12] Under section 389 of the Fair Work Act, a person's dismissal was a case of genuine redundancy if:

• the employer no longer required the person's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise; and

• the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

• [31] As stated above it was common ground, and I find, that the Restaurant Industry Award 2020 ("the Award") applied to Mr Fabbro's employment. Mr Buonocore conceded at the determinative conference that Tocco Italiano had not complied with clause 32 of the Award. The consultation requirement must be met for an employer to establish the dismissal was for "genuine redundancy," within the meaning of that term for the purposes of the Fair Work Act. On that basis subsection 389(1) of the Fair Work Act is not made out, and it is unnecessary to consider subsection 389(2). Accordingly, I am satisfied that the requirement of section 385(d) is met.

• [32] Having considered each of the initial matters, I am required to consider the merits of Mr Fabbro's application.

Was the dismissal harsh, unjust or unreasonable?

• [33] Section 387 of the Fair Work Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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.

• [34] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[13]

Section 387 (a), (b), and (c) - valid reason for the dismissal related to the Applicant's capacity or conduct

• [35] As stated above the employer claims the termination was for redundancy, and the applicant argues the underlying reason was his shoulder injury and issues related to it. On the employer's case, section 387(a) does not arise and is a neutral consideration. On Mr Fabbro's case, section 387(a) does arise. Mr Buonocore's evidence was:[14]

"...as the owner of a small restaurant business I constantly monitor my sales and cost. As I work within the business I have the opportunity to see which levers are the best to manage my business. As employees are 40% of my cost base this warrants my regular attention. Based on my analysis I identified that the sales are balanced across the starter/pasta kitchen and pizzeria sections. Given this, I decided that I needed to change the back of house team composition - historically I have had a structure where specific roles were dedicated to separate areas (i.e. starters, pasta, pizzeria) however now I need a back of house structure and team that is more flexible and can multitask based on the menu and customer ordering.

The pizza chef role was dedicated to the pizzeria section. This therefore doesn't fit my new team structure as I need roles that can move between sections. Given my skill set and the fact that I am already working in the pizzeria section and I control the dough preparation I determined that it was from this section that I can start my new team composition with me having complete control of this section. In the new structure I am the head chef and pizza chef and therefore I no longer need a pizza chef but rather need a position that can work in the kitchen and helping me in the pizzeria when required."

• [36] The Respondent's response also indicated there were two other employees leaving in early September so by the time of Mr Fabbro's sick leave request the week before his dismissal, the business had already started a detailed review to determine the best structure to manage moving forward.

• [37] Having heard from the witnesses I accept that Tocco Italiano reorganised its business and that that was the primary reason for dismissing Mr Fabbro. It is possible that it had more than one reason for dismissing him.

• [38] Tocco Italiano denies that Mr Fabbro's sick leave was the reason for his dismissal. Tocco Italiano notified Mr Fabbro of his dismissal on 19 August, very shortly after the text exchange about the ultrasound on 15 August 2024. It had not engaged in any consultation with Mr Fabbro about redundancy in advance of notifying him of his dismissal so there is no objective evidence that the decision had been made before 15 August 2024. Nor did Mr Buonocore's testimony assist me in finding the decision had been made, or was on the cards, before 15 August 2024. Accordingly, I infer that Tocco Italiano's decision to give effect to the restructure was contemporaneous with, or was made shortly after, the exchange with Mr Fabbro on 15 August. I also infer that the decision to dismiss Mr Fabbro was at least in part made because of his shoulder injury or issues connected with it.

• [39] Though the shoulder injury was a reason for the termination, it was not a valid reason. There is nothing before me to indicate that Mr Fabbro's absence or expected absence, as consequence of his shoulder injury, had been more than temporary, as he was seeking a week's sick leave at the time of the dismissal. I accept that Mr Buonocore sought a copy of the ultrasound report and I also accept that he ultimately did not pursue this request after Mr Fabbro told him it was confidential.

• [40] Proper consideration of s.387(b) requires a finding to be made as to whether the applicant "was notified of that reason". Contextually, the reference to "that reason" is the valid reason, if any, found to exist under s.387(a).[15] I have not made any finding that there was a valid reason for the purposes of paragraph (a). As I am not satisfied that there was a valid reason related to dismissal, this factor is not relevant to the present circumstances.[16] On the same basis, the matter in section 387(c) is also not relevant to the present circumstances.[17]

Section 387(d) - support person

• [41] This consideration does not arise on the evidence.

Section 387 (e) - warning about unsatisfactory performance

• [42] As the dismissal did not relate to unsatisfactory performance, this matter is also not relevant to the present circumstances.

Section 387(f) - size of the Tocco Italiano's enterprise and section 387(g) - the absence of dedicated human resource management specialist or expertise

• [43] As noted above there is some dispute between the parties as to whether the employer is a small business employer within the meaning of that term for the purposes of the Fair Work Act. However it is tolerably clear that Tocco Italiano is a family business that is either a small business employer or close in size to one. Mr Buonocore's evidence is that he works in the business, specifically in the pizzeria. It is also clear from the material that he has been involved in every aspect of this matter from the termination letter to appearing at each listing.

• [44] In all the circumstances, I find that the size of the Respondent's enterprise was likely to impact on the procedures followed in effecting the dismissal in that it had scant resources to devote to re-organising its business and effecting the dismissal. I also find that the business lacked dedicated human resource management specialists and expertise.

Section 387(h) - other relevant matters

• [45] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.

• [46] As stated above I have inferred that the decision to dismiss was at least partly because of the exchange regarding the ultrasound for the shoulder injury, and the shoulder injury itself. Employees are protected from dismissal for temporary absence for injury. This matter weighs in favour of a finding that the dismissal was harsh, unjust, and unreasonable.

• [47] The employer was not entitled to see private medical test results, and it was proper for Mr Buonocore to stop asking for the ultrasound report once Mr Fabbro pointed that out.

• [48] It was not in contest that Tocco Italiano provided a reference to Mr Fabbro.

• [49] Mr Fabbro was entitled to either two weeks' notice, or payment in lieu of two weeks' notice.[18] The termination letter gave two weeks' notice of dismissal. It is not clear on the evidence whether he worked those two weeks, and I expect he did not, given the employer's later, but not subsequently pressed, characterisation of the dismissal as taking effect on 19 August 2024. Either way, it was common ground that Mr Fabbro was not paid for those two weeks, nor in lieu of notice. Mr Fabbro's accrued annual leave also was not paid on the termination of his employment.

• [50] Tocco Italiano wrote to Mr Fabbro on 20 September 2024 claiming that Mr Fabbro owed Tocco Italiano money for "reimbursement for rostered hours not worked." By that letter it indicated the monies said to be owed by Mr Fabbro would be set off against the amounts owing to him for notice and annual leave.[19] Mr Fabbro does not agree that he owed any money to Tocco Italiano and says that he was paid a salary that was not attached to a fixed number of hours.[20]

• [51] Whether he was dismissed with payment in lieu of notice, or dismissed on notice and excused from work during the notice period, Mr Fabbro had an entitlement under the National Employment Standards.[21] He also had an entitlement to be paid for his accrued but untaken annual leave under the National Employment Standards.[22] The total amount payable ought to have been paid without deduction. The failure to pay weighs in favour of a finding that the dismissal was harsh, unjust, and unreasonable.

Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?

• [52] I have made findings in relation to each matter specified in section 387 as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[23] Having considered each of the matters specified in section 387 of the Fair Work Act, I am satisfied that the dismissal was unjust and unreasonable. I find that the requirement of section 385(b) is met.

• [53] In light of my findings above the whole of section 385 is met. I am therefore satisfied that the Applicant was unfairly dismissed within the meaning of that term for the purposes of section 385 of the Fair Work Act.

• [54] Being satisfied that Mr Fabbro made an application for an order granting a remedy under section 394, was a person protected from unfair dismissal, and was unfairly dismissed within the meaning of section 385 of the Fair Work Act, the Commission may, subject to the Fair Work Act, order his reinstatement, or the payment of compensation to him.

• [55] Under section 390(3) of the Fair Work Act, the Commission must not order the payment of compensation to the Applicant unless satisfied that reinstatement of the Applicant is inappropriate, and unless the Commission considers that an order for payment of compensation is appropriate in all the circumstances of the case.

• [56] Reinstatement is not appropriate. The Applicant has taken up another job, with the police. Having found that reinstatement is inappropriate, it does not automatically follow that a payment for compensation is appropriate. Ordering a remedy is discretionary.[24] Where an applicant has suffered financial loss as a result of the dismissal, this may be a relevant consideration in the exercise of this discretion.[25]

• [57] It is not in dispute that Mr Fabbro was not paid for the two weeks from 19 August 2024 until the date the termination took effect, 3 September 2024. Mr Fabbro did not start his job with the police until 18 November 2024.

• [58] In the intervening period Mr Fabbro did not find work. He made a small number of inquiries, around two, looking for casual work. In doing so he intended to work only on weekends before taking up the job with the police.

• [59] Mr Fabbro had intended to travel to Italy at the end of October 2024, for a brief period before commencing work with the police. If he had still been employed he would have taken annual leave for this purpose.

• [60] In all the circumstances, I consider that an order for payment of compensation is appropriate because the dismissal was unjust and unreasonable and Mr Fabbro suffered loss as a consequence.

• [61] Section 392(2) of the Fair Work 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.

• [62] The Respondent did not assert that an order for compensation would have any effect on the viability of its enterprise. I am satisfied that an order for compensation would not have an effect on the viability of the employer's enterprise.

• [63] The Applicant's length of service was almost two years. I consider that the Applicant's length of service does not support reducing or increasing the amount of compensation ordered.

• [64] As stated by a majority of the Full Court of the Federal Court, "[i]n determining the remuneration that the Applicant would have received, or would have been likely to receive... the Commission must address itself to the question whether, if the actual termination had not occurred, the employment would have been likely to continue, or would have been terminated at some time by another means. It is necessary for the Commission to make a finding of fact as to the likelihood of a further termination, in order to be able to assess the amount of remuneration the employee would have received, or would have been likely to receive, if there had not been the actual termination."[26]

• [65] On the applicant's case he would not have been employed beyond 17 November 2024, had he not been dismissed. On the respondent's case his employment would have come to an end for redundancy. If so the employment would have continued at least long enough to exhaust consultation obligations and redeployment opportunities.

• [66] On this basis, and in the circumstances of this case, I find that the employment would have been likely to continue a further month after the date the dismissal took effect.

• [67] The Applicant must provide evidence that they have taken reasonable steps to minimise the impact of the dismissal.[27] What is reasonable depends on the circumstances of the case.[28] Mr Fabbro did very little to mitigate his loss. As stated above he made around two inquiries and only for casual work, with a view to working weekends. On one view he had limited prospects of gaining substantial employment given his planned travel and commitment to start a new full-time role in November. On another, he ought to have made more attempts to find work for the period.

• [68] There is no evidence Mr Fabbro earned any income between the date he was notified of the dismissal and the date on which he took up his job with the police.

• [69] There is no evidence before me on which I could make a finding as to the amount of income reasonably likely to be earned by the Applicant between the making of the order for compensation and the payment of compensation.

• [70] There are no other relevant matters to take into account on the evidence before me.

• [71] In deciding the amount of compensation, the approach to be followed is:[29]

Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).

Step 2: Deduct monies earned since termination. Workers' compensation payments are deducted but not social security payments. The failure of an applicant to mitigate his or her loss may lead to a reduction in the amount of compensation ordered.

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.

• [72] I have estimated the remuneration the Applicant would have received, or would have been likely to have received, if the Respondent had not terminated the employment, to be $6,666.70 on the basis of my finding that the Applicant would likely have remained in employment for a further period of one month. This estimate of how long the Applicant would have remained in employment is the "anticipated period of employment".[30]

• [73] Only monies earned since termination for the anticipated period of employment are to be deducted.[31] Therefore, there are no monies to be deducted on the basis of monies earned. However, there should be a reduction in light of Mr Fabbro's limited attempts to mitigate his loss. If he had made more efforts, he may have been able to acquire paid work for the period. However, as he was available only for a few months that would likely have reduced his employability. I will reduce the compensation amount by 10%.

• [74] The anticipated period of employment finished prior to the hearing, so there is no need to consider the impact of contingencies on any amounts likely to be earned by Mr Fabbro for the remainder of the anticipated period of employment.[32]

• [75] I have considered the impact of taxation but have elected to settle a gross amount of $6,000 and leave taxation for determination.

• [76] Having taken the approach above, 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,"[33] including my findings set out above.

• [77] I am satisfied that the amount of compensation that I have determined above is appropriate, taking into account all the relevant circumstances.

• [78] This is not a matter in which misconduct contributed to the decision to dismiss, so no reduction is necessary on that basis, having regard to subsection 392(3) of the Fair Work Act.

• [79] Given the amount of compensation, no issue arises as to the compensation cap for the purposes of subsection 392(5) of the Fair Work Act.

• [80] In light of the above, I will make an order that the Respondent pay $6000 gross less taxation as required by law to the Applicant in lieu of reinstatement within 28 days of the date of this decision. The order will be issued separately.

[1] Exhibit 3, Witness Statement of Arturo Buonocore, 1, and annexure.

[2] Exhibit 5, letter by email to Mr Fabbro dated 20 September 2024.

[3] Fair Work Act 2009 (Cth) s 390.

[4] Fair Work Act 2009 (Cth) s 382.

[5] Fair Work Act 2009 (Cth) ss 385, 390(1).

[6] Fair Work Act 2009 (Cth) s 399

[7] Fair Work Act 2009 (Cth) s 396.

[8] McKerlie v RateIt Australia Pty Ltd (t/a RateIt) [2020] FWCFB 5131, [58].

[9] Fair Work Act 2009 (Cth) s 385(c).

[10] Fair Work Act 2009 (Cth) s 385(d).

[11] Fair Work Act 2009 (Cth) s 396(d).

[12] McKerlie v RateIt Australia Pty Ltd (t/a RateIt) [2020] FWCFB 5131, [58].

[13] Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

[14] Exhibit 3, Witness Statement of Arturo Buonocore, 1.

[15] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].

[16] Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), [41]; Read v Cordon Square Child Care Centre [2013] FWCFB 762, [46]-[49].

[17] Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), [41]; Read v Cordon Square Child Care Centre [2013] FWCFB 762, [46]-[49].

[18] Fair Work Act 2009 (Cth) s 117.

[19] Exhibit 5, letter by email to Mr Fabbro dated 20 September 2024.

[20] Exhibit 2, witness statement of Marco Fabbro dated 28 October 2024.

[21] Fair Work Act 2009 (Cth) s 117.

[22] Fair Work Act 2009 (Cth) ss 87,90(2).

[23] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6] -[7].

[24] Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198, [9].

[25] Vennix v Mayfield Childcare Ltd [2020] FWCFB 550, [20]; Jeffrey v IBM Australia Ltd [2015] FWCFB 4171, [5]-[7].

[26] He v Lewin [2004] FCAFC 161, [58].

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

[28] Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O'Callaghan SDP, Foggo C, 28 March 2002), [34] citing Payzu Ltd v Saunders [1919] 2 KB 581.

[29] Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206, [16]; Bowden v Ottrey Homes Cobram and District Retirement Villages [2013] FWCFB 431, applying Sprigg v Paul's Licensed Festival Supermarket [1998] AIRC 989; (1998) 88 IR 21.

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

[32] Enhance Systems Pty Ltd v Cox PR910779 (AIRCFB, Williams SDP, Acton SDP, Gay C, 31 October 2001), [39].

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

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