What happened

This decision resolves the remedy following the Fair Work Commission's earlier substantive determination in Paula Jane Allen v Kandeena Pty Ltd as Trustee for THE RASMUSSEN FAMILY TRUST. Commissioner Hunt began by recording that, in an earlier decision delivered on 12 February 2020 ([2020] FWC 761), the Commission had determined that the respondent must pay Ms Allen compensation equal to 15.5 weeks' pay, less a 30% deduction for misconduct, together with superannuation ([1]). The present decision was confined to calculating the monetary amounts and deciding the manner and timing of payment.

The Commission directed the respondent to provide payslips for March and April 2019 so the correct weekly amount could be ascertained for a casual employee whose wages varied week to week ([2]). The respondent supplied four fortnightly payslips covering the period 4 March 2019 to 28 April 2019 ([3]). The Commissioner summed the gross amounts shown on those payslips (19 March, 1 April, 16 April and 30 April totals), resulting in total gross earnings of $6,324.22 over the eight week period ([4]). Dividing that total by the eight weeks produced a weekly average of $790.5275 ([5]).

Applying the earlier-determined quantum (15.5 weeks) to the weekly average produced a gross figure of $12,253.1762. The Commissioner applied the 30% misconduct deduction ordered earlier, reducing the gross compensation to $8,577.22. Superannuation of 9.5% was also calculated at $814.84 and was ordered to be paid into Ms Allen's superannuation account ([6]).

The respondent sought to pay the compensation by instalments, asserting it no longer traded, had a small current account balance and that paying a lump sum would cause hardship and potential insolvency ([7], [9]). The respondent did not supply profit and loss statements, bank statements or other documentary evidence of financial incapacity ([7]). The applicant objected to instalments, characterising the request as another delay tactic and highlighting procedural irregularities in the naming of parties ([8]). Commissioner Hunt declined to permit the instalment arrangement sought on the basis that there was no evidence sufficient to persuade the Commission to exercise its discretion to order payment in fortnightly instalments; instead the Commissioner ordered two lump-sum payments and a separate superannuation payment, with specified dates ([11], [12], [13]).

Why the court decided this way

Two central matters drove the Commission's reasoning: first, how to calculate an appropriate weekly figure for a casual worker paid fortnightly; second, whether to permit instalments based on the respondent's asserted hardship.

On the calculation issue the reasoning was straightforward and arithmetic. The Commission required payslips covering the relevant recent period to calculate the applicant's average weekly earnings. Four payslips were provided covering an eight week span, showing fortnightly payments. The Commissioner summed gross pay across those payslips and divided across the eight weeks to obtain a weekly average of $790.5275 ([3]–[5]). That figure was then multiplied by 15.5 weeks to produce the pre-deduction gross entitlement ([6]). This approach follows the ordinary logic of averaging periodic earnings over the relevant period to determine a weekly rate for compensation purposes, and was uncontroversial on the facts.

The instalment issue turned on the exercise of discretion. The respondent's claim that it could not pay without risking insolvency relied on bare assertions and an email stating a current account balance of $738.96. Crucially, the respondent supplied no supporting financial documentation (profit and loss statements, bank statements or other verifiable material) showing its ongoing inability to pay ([7]). The Commission emphasised that the order will be against the corporate trustee entity and not the individual's personal liability, and expressed concern to ensure the applicant was paid without risk of the respondent being liquidated and the applicant becoming an unsecured creditor ([10]). Given the lack of persuasive evidence and the applicant's objections (including concerns of delay and procedural irregularity), the Commissioner exercised discretion against permitting instalments in the manner proposed, and instead ordered two lump-sum payments and a superannuation payment within short, fixed timeframes ([11], [12]).

Before and after state of the law

Before this decision: The Commission had already found in its decision dated 12 February 2020 that compensation of 15.5 weeks, less 30% for misconduct, should be awarded. That prior decision established the substantive entitlement and the misconduct deduction to be applied ([1]). The present decision did not re-litigate liability or misconduct; it confined itself to applying the earlier order to the available payroll evidence and directing payment.

After this decision: The Commission concretised the remedy. It established the methodology for translating fortnightly payslips into a weekly wage basis for a casual employee (aggregate gross over the relevant weeks divided by the number of weeks) and reaffirmed that a pre-determined misconduct deduction will be applied arithmetically to that sum ([3]–[6]). The decision illustrates that the Commission will demand evidentiary support before permitting staggered payments; unsupported claims of financial hardship will usually be insufficient to displace the normal expectation of prompt payment ([7], [11]).

This decision is therefore procedural and remedial rather than doctrinally novel. It clarifies evidentiary expectations where a respondent seeks to avoid an immediate lump-sum payment on the grounds of financial difficulty.

Key passages with plain-English translation

• Passage: "In my decision of 12 February 2020, I determined that the Respondent is to pay to Ms Allen compensation... 15.5 weeks less a deduction of 30% for misconduct, together with superannuation." ([1])

  • Translation: The Commissioner had already decided Ms Allen should get pay equivalent to 15.5 weeks, but the total is reduced by 30% because of misconduct; superannuation also must be paid.

• Passage: "It is clear from the payslips that wages were paid to Ms Allen on a fortnightly basis." ([3])

  • Translation: The payslips show Ms Allen was paid every two weeks, not weekly, so the Commission used those fortnightly figures to compute a weekly average.

• Passage: "The weekly average earnings of Ms Allen over the week period is $790.5275." ([5])

  • Translation: Adding all earnings over the eight weeks and dividing by eight gives an average weekly pay of about $790.53.

• Passage: "The amount of compensation to be paid is 15.5 weeks x $790.5275... less a deduction of 30% = $8,577.22." ([6])

  • Translation: Multiply the weekly average by 15.5, then subtract 30% (for misconduct) to get the gross compensation payable before tax, which the Commission fixed at $8,577.22.

• Passage: "There is no evidence before the Commission that would persuade me to exercise my discretion to make such an order." ([11])

  • Translation: The respondent did not produce documents proving they could not pay now; the Commissioner therefore refused to allow the payment plan the respondent wanted.

• Passage: "In all of the circumstances I consider it appropriate for the order of compensation to be made as follows: $4,288.61 gross... $4,288.61 gross... $814.84 superannuation..." ([12])

  • Translation: The Commission decided on two equal lump-sum payments and a separate superannuation payment, with specific deadlines.

What fact patterns trigger this precedent

This decision will be directly relevant where:

• The Commission has already determined a remedy in principle (weeks of compensation and any deduction) and the parties return for precise calculation of monetary amounts.
• An applicant is a casual employee and their pay fluctuates, with evidence in the form of fortnightly payslips covering a recent period.
• A respondent seeks to pay an award by instalments on grounds of financial difficulty but provides little or no documentary evidence to support that claim.

In such circumstances the Commission will expect payslips covering the relevant period, will average gross earnings across the period to produce a weekly figure for compensation calculations, will apply any misconduct deduction previously determined, and will require substantive documentary evidence before allowing delayed payment or instalments.

How later courts have treated it

This decision is an administrative, remedial order by the Fair Work Commission and does not record subsequent judicial treatment. The text contains no references to any later appellate consideration. Therefore, from the content of this decision alone, there is no record here of how later courts or tribunals have treated it.

Still-open questions

Several areas remain open or unresolved by this decision:

• Threshold for adequate evidence to justify instalments: The Commission refused instalments here due to lack of documentary support. While the decision makes clear that unsupported assertions are insufficient ([7], [11]), it does not further delineate the precise quantum or type of evidence that would suffice (for example, whether a formal cashflow forecast, affidavit evidence, or contemporaneous bank statements would be adequate).
• Treatment of corporate trustees and associated trust assets: The Commission observed that the order is against the corporate trustee entity rather than Mr Rasmussen personally ([10]). The decision does not explore whether and when trust assets could be made available to satisfy an order against a corporate trustee, or the circumstances in which a trustee’s insolvency could impact enforcement.
• Taxation and net payment handling: The Commission states the compensation is "to be taxed" pursuant to the earlier decision and specifies gross figures and superannuation ([6], [12]). The decision does not set out how PAYG or other withholding obligations are to be accounted for in practice, an issue for payroll/compliance teams to manage.
• Variation in averaging periods for casual workers: The Commission used an eight week window based on the payslips before it ([3]–[5]). The decision does not address whether a longer or shorter period might be appropriate in different circumstances where earnings vary substantially over time.

Practitioners should note that while this decision is a useful guide to the Commission's approach to arithmetic, evidentiary expectations and payment scheduling, it is not a comprehensive precedent on instalment applications or insolvency-related payment defences. Where respondents seek instalments, they will need to provide contemporaneous, objective financial evidence to persuade the Commission to depart from prompt lump-sum payment.