s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - order for compensation

• [1] On 6 February 2026 I issued a decision[1] in which I concluded that the applicant in this matter, Mr. Wen, had been unfairly dismissed by his former employer Sydney VIP Blinds Pty Ltd. I concluded in that decision that Mr. Wen should be paid an amount of compensation for the unfair dismissal. I determined that the amount of compensation should be the equivalent of 4 weeks remuneration based on the applicant's average weekly remuneration over the six-month period preceding the termination of Mr. Wen's employment discounted by an amount of 10% on account of a lack of mitigation efforts on Mr. Wen's part. I also determined that superannuation at the statutory rate of 12% be payable on the amount. I directed the parties to confer with a view to reaching agreement on the amount to be paid. No such agreement was reached and the parties provided short written submissions and some documentation in support of their respective positions as to the orders that should follow from the decision.

[2] It appears from the material provided that the applicant was paid an average of $2,366.96 per week over the six-month period preceding the applicant's termination. However, it also appears that a component of the weekly amount paid, being an amount of $888 (gross) was paid into Mr. Wen's bank account and the balance, being amounts ranging between $1,197 and $1,810 per week, were paid directly to Mr. Wen as cash payments.

[3] The respondent did not dispute the figures that the applicant has provided as to his total earnings, including cash, payments over the relevant six-month period.

[4] In a brief written submission, the respondent asserted that Mr. Wen worked for the respondent as an employee on a part-time basis for which he was paid the weekly wage of $888 and that the applicant also worked as a subcontractor for the respondent for which he was paid separately under the terms of the subcontract. I note that the Form F3 Employer Response filed by the respondent asserted that the applicant was employed as a full-time blinds installer. The Form also stated that the applicant commenced work for the respondent on 10 March 2020. No reference was made to part-time employment in the Form. However Mr. Xiang, the respondent's director, provided a witness statement in the proceedings saying that the applicant became a part-time employee on or about 14 December 2020.

[5] Section 392(2)(c) requires the Commission to take into account the remuneration that the person would have received or would have been likely to receive, if the person had not been dismissed. The reference to 'remuneration' in s.392(2)(c) is broad enough in my view to encompass all of the earnings that the applicant would have received had he not been dismissed, including the amounts that the respondent now claims would have been payable as a result of subcontracting arrangements between the parties. It is therefore unnecessary for me to make any formal findings as to the basis on which the additional amounts paid as cash payments were earned. Had the applicant not been dismissed he would have received or would be likely to have received amounts equivalent to those that he had consistently received in the preceding 6 months even if those amounts had been earned through a legitimate subcontracting arrangement and not as an employee. The unfair termination of the applicant's employment resulted in the cessation of all arrangements between the parties and all payments associated with those arrangements. It is the loss of those payments to which an order for compensation is appropriately directed.

[6] I therefore propose to order that the respondent pay the applicant an amount of $8,521.20 (gross) (being 4 x $2,367, less 10%), less appropriate taxation, together with superannuation contributions on that amount at the rate of 12%.

[7] I also observe that from the material available, it is unclear what if any taxation remittances were made in relation to the cash payments paid by the respondent to the applicant over an extended period. I therefore propose to draw the circumstances of this matter to the attention of the Australian Taxation Office to consider whether further inquiries into that matter are warranted.

An order reflecting the decision above will be published separately.

[1] [2026] FWC 371.

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