s.394 - Application for unfair dismissal remedy

Unfair dismissal application - Applicant unfairly dismissed - Remedy decision - s.392 - Order for compensation made

• [1] Mr Nils Lampert (Applicant) made an application for an unfair dismissal remedy against Barefoot Palmy Pty Ltd (Respondent) which was heard on 26 February 2026 (Substantive Hearing).[1]

• [2] At the hearing in the Substantive Matter, I admitted evidence in relation to the Applicant's earnings with the Respondent, his efforts to mitigate the loss of his job, and evidence in relation to amount of remuneration earned since his employment came to an end on 30 September 2026.[2] This evidence was not contested. The decision with respect to the merits of the case was delivered Ex Tempore at the end of the hearing, the finding of which was that the Applicant was found to have been unfairly dismissed by the Respondent.[3] Further oral evidence in respect to the issue of remedy was also admitted at that hearing and uncontested.[4] Further evidence on the issue of remedy was given by the Applicant at the substantive hearing. The issue of remedy was reserved and this decision will therefore deal with the issue of remedy.

[3] The remedies that the Commission may order in respect of a dismissal that it has found to be unfair are reinstatement or compensation. Reinstatement is not sought and would in any event be inappropriate in this case.

• [4] As to compensation, s.392 requires the Commission to take into account certain matters, including the remuneration that the Applicant would have received if the dismissal had not occurred.[5] In the present case, this would have been the remuneration in respect of the period between the date when the Applicant's employment ended, 30 September 2025, and the date I find the employment would have ended had it not been for his dismissal. The Applicant's significant efforts to finding another job since leaving the Respondent demonstrate a highly motivated individual with a strong work ethic. The Applicant was engaged in the role of Chef which requires significant training skill and expertise. The evidence before the Commission, evinces no reason not to conclude that Applicant's performance in that role was exemplary. Further the working hours of a chef are known to be long and arduous. The Applicant provided evidence that he accepted some 6 jobs in the time since he left the Respondent's employ.[6] A number of those roles overlapped, indicating that the Applicant was reliable and consistent in performing as many hours of work as he could obtain, Further, the evidence demonstrates that the Respondent had no concerns to raise with the Applicant in just under 9 months of service. In all these circumstances, I find no reason to believe other than that the employment would have continued for a further 9 months, had it not ended by the dismissal.

• [5] Payslips submitted by Applicant during his employment with the Respondent, indicate that for the 36 weeks prior to 30 September 2025, the Applicant earned an average of $980.49 per week plus superannuation.[7] Had the Applicant continued employment for a further 34 weeks, he would have earned a further $33,336.66 plus superannuation.[8] This is the Applicant's loss.

• [6] In assessing compensation, the Commission is required by s.392(2)(e) of the Act to take into account amounts earned by the person from employment or other work since the dismissal. As directed by the Commission, the Applicant produced payslips from his new employment. These show that during the period 15 October 2025 and 25 January 2026 the Applicant earned an amount of $21,508.18.[9] I find it reasonably likely based on the last payslip provided to 25 January 2026 and the making of the order, that the Applicant would have worked a further 2 days at the rate of $40 per hour, earning the amount of $608.00.[10] This gives a total of $22,116.18.

• [7] When I deduct the earnings of $22,116.18 from the likely remuneration of $33,336.66, the figure remaining is $11,220.48. There is no evidence before me that this would have any effect on the viability of the employer.[11] The Applicant has demonstrated significant efforts in finding another job, evidencing 37 job applications including follow up correspondence and diligence in the various recruitment process.[12] Furthermore, there is no evidence whatsoever of any misconduct on the part of the Applicant.[13] There are no other relevant matters[14] and therefore there is no discount to be made to the figure of $11,220.48.

[8] The appropriate gross amount of compensation that the Applicant should be paid in respect of his unfair dismissal, is therefore $11,220.48 from which applicable taxation must be withheld. To this should be added a component in respect of superannuation at 12%, which is $1,346.46. I will order these amounts to be paid to the Applicant within 14 days.

[9] An order is issued separately in PR797232.

[1] [2026] FWC 670.

[3] [2026] FWC 670.

[5] Fair Work Act 2009 (Cth) s 392(2)(c).

[7] DCB p.27, Exhibit 4. See also DCB pp.80-112, Exhibit A4.

[8] Fair Work Act 2009 (Cth) s 392(2)(b)-(c).

[9] Ibid s 392(2)(e).

[10] Ibid s 392(2)(f).

[11] Ibid s 392(2)(a).

[12] Exhibit A4; Fair Work Act 2009 (Cth) s 392(2)(d).

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

[14] Ibid s 392(2)(g).

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