s.394 - Unfair dismissal

Seck Enterprises Pty Ltd T/A Pizza Hut North Sydney

Application for an unfair dismissal remedy - jurisdictional objection - genuine redundancy - failure to consult - dismissal unfair - compensation awarded.

[1] Mr Slabko was employed by Seck Enterprises Pty Ltd on a part time basis to undertake delivery work from the Pizza Hut store in North Sydney. Mr Slabko was dismissed in July 2025. He contends that his dismissal was harsh, unjust and unreasonable. Seck denies those allegations and contends that Mr Slabko's employment was terminated because it no longer needed anybody to perform his job.

[2] Section 396 of the Fair Work Act 2009 (Cth) sets out four matters which I am required to decide before I consider the merits of Mr Slabko's unfair dismissal application.

[3] There is no dispute between the parties and I am satisfied on the evidence that:

(a) the application was made within the period required in s 394(2) of the Act;

(b) Mr Slabko is a person protected from unfair dismissal; and

(c) Mr Slabko's dismissal was not consistent with the Small Business Fair Dismissal Code.

[4] As to the fourth initial matter which I am required to consider, there is a dispute between the parties regarding whether Mr Slabko's dismissal was a genuine redundancy. I will address this issue first.

[5] Section 389 of the Act defines genuine redundancy as follows:

(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."

[6] "Associated entity" has the meaning given by s 50AAA of the Corporations Act 2001 (Cth).

The employer no longer required the employee's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise (s 389(1)(a))

• [7] It is necessary to determine whether Seck no longer required the job of Mr Slabko to be performed by anyone because of changes in the operational requirements of Seck's enterprise.[1]

• [8] A job involves "a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employer's organisation, to a particular employee".[2] Where there has been a reorganisation or redistribution of duties, the question is whether the employee has "any duties left to discharge".[3] If there is no longer any function or duty to be performed by that person, their job becomes redundant.[4] For example, an employer may redistribute all the tasks done by a particular person between several other employees or outsource the tasks to a third party, resulting in the person's job no longer existing.

• [9] An employee's job may still be genuinely made redundant when there are aspects of the employee's duties still being performed by other employees.[5] The test is whether the job previously performed by the employee has survived the restructure or downsizing, not whether the duties have survived in some form.[6]

• [10] The reference to "changes in the operational requirements of the employer's enterprise" in s 389(1)(a) of the Act includes circumstances where an employer restructures its business to improve efficiency, productivity, sales, revenue or some other aspect of performance. The operational circumstances of a business which may give rise to a redundancy will reside in the direct knowledge of the employer. The evidentiary onus is on the employer to provide direct evidence about the nature of the employee's job and why it is no longer required to be performed as a result of changes in the operational requirements of the employer's enterprise. There is no requirement in s 389(1) of the Act that the employer act reasonably in deciding that, due to changes in its operational requirements, it no longer required the person's job to be performed by anyone.[7]

• [11] If a dismissal is found to be a genuine redundancy within the meaning of the Act, issues such as unfair selection procedures for redundancy are not relevant, because they go to the merits of the claim that the applicant was dismissed harshly, unjustly or unreasonably.[8]

[12] Mr Chetan Kelra is the franchisee of the Pizza Hut store in North Sydney.

[13] Ms Etka Nischal is the partner of Mr Kelra. Ms Nischal is also the sole director and shareholder of Seck.

[14] Seck operates the Pizza Hut store in North Sydney, including employing all staff who work there, ordering uniforms and stock, and handling administration. Seck does not own or operate any other business.

• [15] On 7 March 2024, Mr Slabko commenced employment with Seck. He was initially employed on a part-time basis to work at least 25 hours per week,[9] undertaking delivery work from the Pizza Hut store in North Sydney. After about two weeks, it was agreed that Mr Slabko's minimum weekly hours would be reduced to 15.

• [16] Ms Nischal gave evidence that revenue from delivery orders at the Pizza Hut store in North Sydney dropped 37% from the first quarter of 2025 (1 January to 31 March) to the second quarter of 2025 (1 April to 30 June).[10] I accept this evidence. It was supported by business records tendered on behalf of Seck.[11]

[17] I also accept the following evidence given by Ms Nischal about the impact of this reduction in delivery orders on Seck's business:

• (a) As the number of delivery orders drops, it becomes financially better for Seck to use UberEats drivers to deliver pizzas, rather than drivers employed by Seck.[12]

• (b) As a result of the reduction in delivery orders between the first and second quarters of the 2025 calendar year and the financial benefit in those circumstances to Seck in using UberEats drivers to deliver pizzas, Mr Slabko's employment was no longer required by Seck.[13]

• (c) Mr Slabko's job was not the only one impacted by these changes in Seck's operational requirements. Seck reduced the number of delivery drivers it engaged to work from the Pizza Hut store in North Sydney from seven in early 2025 to two drivers from July to September 2025.[14]

[18] On 3 July 2025, Mr Slabko worked his final shift for Seck.

• [19] There is a contest on the evidence as to whether Ramesh Kara, an employee of Seck, had a discussion with Mr Slabko about the downturn in business and its impact on Mr Slabko's position with Seck. Ms Nischal contends that on about 3 July 2025 Ramesh Kara told Mr Slabko, by telephone, that there was no more work available as the store was too quiet due to a drop in deliveries and orders.[15] Ms Nischal also contends that Ramesh Kara told Mr Slabko that there could be work available in October or November 2025 when the business picked up.[16] Ms Nischal further claims that Mr Slabko became angry during the telephone call and said that he was going to "sue".[17]

• [20] Mr Slabko denies that he had any such discussion with Ramesh Kara or anybody else on behalf of Seck.[18] Mr Slabko also says that English is not his first language and he does not use, or know the meaning of, the word "sue".[19]

[21] I prefer the evidence of Mr Slabko over the evidence of Ms Nischal in relation to this disputed conversation. First, Mr Slabko gave evidence concerning his denial of the conversation and was not shaken during cross examination on this topic. Secondly, in contrast, Ramesh Kara did not give evidence. Ms Nischal admitted that she was not present during the alleged conversation between Ramesh Kara and Mr Slabko. Ms Nischal's evidence about the alleged conversation is hearsay. Because Ramesh Kara was not called to give evidence at the hearing, Mr Slabko did not have an opportunity to test his evidence in cross examination.

[22] On 7 July 2025, a roster was published without any shifts for Mr Slabko.

[23] On 12 July 2025, Mr Slabko received an automated email from the rostering system used by Seck asking him to confirm his availability for shifts on 18 and 19 July 2025. Mr Slabko confirmed his availability for those shifts but was not assigned the shifts by Seck.

[24] On 22 July 2025, Mr Slabko discovered that he had been removed from Seck's rostering system. This is when Mr Slabko thought that he had been dismissed.

[25] On 24 July 2025, Mr Slabko made an unfair dismissal application in the Commission.

• [26] A reasonable person would conclude that Mr Slabko's employment was terminated on 22 July 2025. At that time, Mr Slabko had not been rostered his regular part time hours of work since 3 July 2025 and his account on the rostering system used by Seck had been made inactive.[20] Accordingly, I find that Mr Slabko was dismissed by Seck with effect on 22 July 2025.

[27] I am satisfied on the balance of probabilities that the real reason for Mr Slabko's dismissal was the redundancy of his position and that Seck no longer required Mr Slabko's position to be performed by anyone because of changes in the operational requirements of Seck's enterprise. The reduction in delivery orders from the first to the second quarter of the 2025 calendar year meant that Seck needed fewer delivery drivers, particularly in circumstances where the reduction in delivery orders meant it became financially beneficial for the business to engage UberEats drivers to deliver pizzas.

• [28] Seck adduced evidence of alleged misconduct by Mr Slabko in 2024 and early 2025. Mr Slabko denies the alleged misconduct. Even though such alleged misconduct was apparently reported to Ms Nischal, she did nothing about it. I do not accept Ms Nischal's evidence that there were "informal discussions/informal verbal warnings/counselling with the Applicant".[21] It became apparent at the hearing that Ms Nischal did not engage in any such discussions with Mr Slabko. She contends that a manager in the business had such discussions with Mr Slabko. None of those managers were called to give evidence. Ms Nischal's account of those discussions is hearsay. Further, no proper details were given by Ms Nischal about precisely when these discussions took place or what in particular was allegedly said. Further, Ms Nischal conceded, properly in my view, that she "should have managed the serious conduct complaints and performance complaints ... received about the Applicant".[22] This concession supports a finding that the issues were not addressed with Mr Slabko. Instead, Ms Nischal decided to bring Mr Slabko's employment to an end as a result of a "sustained contraction" in Seck's business and the impact that had on the hours of work available for delivery drivers.[23] Ms Nischal confirmed that this decision was made before Seck completed its investigation into the allegations of misconduct against Mr Slabko.

Compliance with any consultation obligation in a modern award or enterprise agreement that applied to the employment (s 389(1)(b))

[29] For there to be a genuine redundancy within the meaning of s 389 of the Act, Seck must have complied with any obligation in a modern award or enterprise agreement to consult about the redundancy.

[30] Seck concedes that Mr Slabko was covered by the Fast Food Industry Award 2020 and it did not comply with the consultation obligations in the Fast Food Award in relation to the redundancy of Mr Slabko's position. Those concessions were appropriately made. They are supported by the evidence before the Commission.

Was it reasonable in all the circumstances for the person to be redeployed within the employer's enterprise or the enterprise of an associated entity of the employer (s 389(2))

• [31] The "employer's enterprise" in s 389(2) is its "business, activity, project or undertaking". This provides the scope of the inquiry under s 389.[24]

• [32] "Redeployed" does not require there to be a vacant position.[25] Chief Justice Gageler, together with Justices Gordon and Beech-Jones, explained the position as follows in Helensburgh Coal:[26]

"The word "redeploy" does not, by its ordinary meaning, exclude or prohibit some change to how an employer uses its workforce to operate its enterprise that facilitates redeployment. Indeed, the ordinary meaning of "redeploy" - "to rearrange, reorganise, or transfer" - envisages some reorganisation or rearrangement. In other words, it does not mean that it would only have been reasonable to redeploy the person if there was a vacant position in the enterprise. This is reinforced by the fact that, unlike s 389(1), s 389(2) does not refer to a "job". The text of s 389(2) therefore does not, on its face, assume that a job is readily available. Rather, "redeployed" looks to whether there was work, or a demand for work, within the employer's enterprise or an associated entity's enterprise that could have been performed by the otherwise redundant employee."

• [33] The hypothetical inquiry under s 389(2) of the Act asks what, at the time of the dismissal, could have been done by the employer to redeploy the employee to perform other work within the employer's enterprise or the enterprise of an associated entity.[27]

• [34] As to reasonableness, the High Court in Helensburgh Coal observed that:[28]

"Reasonableness is an objective question to be determined by the FWC. The inquiry does not look to reasonableness only from the point of view of the employer, or only from the point of view of the employee (although they are relevant). It is an inquiry as to reasonableness in the context of the employer's enterprise, with regard to the nature of that enterprise."

• [35] The words "all the circumstances" are unmistakably broad. They can include:[29]

"... the attributes of the otherwise redundant employee, such as their skill set, experience, training and competencies. "[A]ll the circumstances" can also include those attributes of the employer's enterprise that concern its workforce, such as: its policies, including appetite for risk; plans; processes; procedures; business choices, such as a decision to terminate a contract in the future and a decision to persist with using contractors; decisions regarding the nature of its workforce, such as whether it has a blended workforce of both employees and contractors; contract terms, such as whether they are "as needs" contracts and whether the contractors are on daily work orders or on some long-term fixed commitment; practical concerns, such as whether redeployment would require the employee to undergo further training; and anticipated changes, such as another employee going on parental leave or retiring, a contract expiring, or a position being performed by a contractor while waiting for an employee to be hired. These are "circumstances" of how an employer uses its workforce to operate its enterprise, or why it does so in that manner, which can, depending on the circumstances of the case, bear on whether it would have been reasonable to redeploy an employee within the enterprise. These circumstances are not directed at the size, scope or nature of the enterprise, which are fixed at the date of dismissal."

• [36] The language of s 389 does not prohibit asking whether an employer could have made changes to how it uses its workforce to operate its enterprise so as to create or make available a position for a person who would otherwise have been redundant.[30]

[37] I am satisfied on the evidence given by Ms Nischal that Seck did not have any associated entities at the time of Mr Slabko's dismissal.

• [38] I am satisfied that there were no available positions in the enterprise of Seck at the time Mr Slabko's dismissal took place. That is a relevant consideration, but it is not the end of the inquiry. I am also satisfied on the evidence before the Commission that there were no reasonable steps that could have been taken by Seck to redeploy Mr Slabko to perform other work within Seck's enterprise. Seck operates a small business. It usually employs about five employees to work in the Pizza Hut store in North Sydney. At the time of Mr Slabko's dismissal, delivery orders were significantly down, and Seck had a reduced need for staff, particularly drivers. Other drivers were also let go at about the same time, as is evident from the reduction of seven drivers in early 2025 down to two drivers in July to September 2025.[31] It was reasonable for the business to use UberEats drivers to deliver pizzas, rather than employees of Seck, when delivery orders dropped by a significant amount, having regard to the lower cost of engaging such drivers. There was no work which it would have been reasonable for Seck to give Mr Slabko to do at the time his position was made redundant.

[39] For the reasons given, I am satisfied that it would not have been reasonable in all the circumstances for Mr Slabko to have been redeployed within Seck's enterprise.

[40] Seck did not comply with its consultation obligations under Fast Food Award. For this reason alone, Seck's dismissal of Mr Slabko was not a case of genuine redundancy within the meaning of s 389 of the Act. However, it does not automatically follow that Mr Slabko's dismissal was unfair simply because it was not a genuine redundancy within the meaning of the Act.

[41] Because Mr Slabko's dismissal was not a genuine redundancy within the meaning of s 389 of the Act, I must take into account, in determining whether the dismissal was harsh, unjust or unreasonable, the matters set out in s 387 of the Act.

Section 387(a) - valid reason related to capacity or conduct

• [42] If an employee has been dismissed because of changes to the operational requirements of their employer's enterprise, the reason for the dismissal will not be related to the employee's capacity or conduct. It follows that, in those circumstances, there will not be a valid reason for the dismissal related to the employee's capacity or conduct, and s 387(a) should be regarded as a neutral matter with respect to the question of whether the dismissal was harsh, unjust or unreasonable.[32]

• [43] However, if the employee was dismissed because of changes to the operational requirements of their employer's enterprise and it was not reasonable in all the circumstances for the employer to redeploy him or her, they are matters which should be considered under s 387(h) of the Act and are telling against a conclusion that the dismissal was harsh, unjust or unreasonable.[33]

[44] For the reasons set out above, I am satisfied that Mr Slabko was dismissed because of changes to the operational requirements of Seck's enterprise. Accordingly, s 387(a) is a neutral factor in this case.

• [45] I note that Seck submitted that if the Commission was satisfied of its primary case - that Mr Slabko's dismissal was a case of redundancy - it would not be necessary to consider Seck's secondary argument: namely, there was a valid reason to terminate Mr Slabko's employment on the basis of his serious misconduct.[34]

• [46] Section 387(b) relates to notification of "that reason", being a reason related to the person's capacity or conduct.[35]

• [47] Because the reason for the termination of Mr Slabko's employment was the redundancy of his job and such a reason is not related to his capacity or conduct, s 387(b) is a neutral factor in relation to the question of whether Mr Slabko's dismissal was harsh, unjust or unreasonable.[36]

• [48] Section 387(c) is also predicated on there being a reason for dismissal related to the capacity or conduct of the employee.[37]

• [49] It follows that s 387(c) is a neutral factor in relation to the question of whether Mr Slabko's dismissal was harsh, unjust or unreasonable.[38]

[50] Seck did not hold any discussions with Mr Slabko in relation to his dismissal. He was therefore denied an opportunity to have a support person present to assist in any such discussions. This weighs in support of a finding that the dismissal was unfair.

Section 387(e) - warning about unsatisfactory performance

• [51] Mr Slabko's dismissal did not relate to any unsatisfactory performance by him. It follows that s 387(e) is also a neutral factor in relation to the question of whether Mr Slabko's dismissal was harsh, unjust or unreasonable.[39]

Section 387(f)&(g) - size of enterprise and dedicated human resource management specialists

[52] Seck operates a small business and does not have any dedicated human resource management specialists or expertise. These matters had an impact on the procedure followed by Seck in connection with the termination of Mr Slabko's employment. However, this did not excuse Seck from affording any procedural fairness to Mr Slabko.

• [53] There were sound, defensible and well-founded reasons for Mr Slabko's dismissal, namely Seck no longer required his job to be performed by anyone because of changes to the operational requirements of Seck's enterprise. Further, as I have concluded above, there were no reasonable redeployment opportunities available for Mr Slabko. These matters weigh against a conclusion that his dismissal was harsh, unjust or unreasonable.[40] Seck's material failure to comply with its consultation obligations under the Fast Food Award is also a relevant matter which should be considered pursuant to s 387(h) of the Act.[41] However, a failure to consult does not necessarily mean a dismissal was harsh, unjust or unreasonable.[42] The weight to be given to a failure to consult depends primarily on the degree to which, if any, the absence of proper consultation led to any unfairness in practice.[43]

[54] My view is that a proper consultation period which complied with the requirements of the Fast Food Award would have lasted a period of two weeks. I am persuaded that two weeks is the amount of time which would have been required to give Mr Slabko a proper opportunity to consider the proposed change and its impact on his position, including providing information in writing from Seck in relation to those matters, permitting Mr Slabko to ask questions about the change, and allowing for Mr Slabko to have proper discussions with Ms Nischal about the change, the reasons for it and any steps that could be taken to ameliorate the impact of the change on Mr Slabko. Had Seck complied with its consultation obligations and consulted with Mr Slabko for a period of two weeks, I am satisfied on the balance of probabilities that Mr Slabko's employment would have been terminated at the end of the two-week period on the ground of redundancy. I do not consider it likely that Seck would have kept Mr Slabko employed because it had a reduced need for delivery drivers and there was no other work available for Mr Slabko to perform.

• [55] Like the situation in cases such as Maswan[44] and Smith v Alice Car Centre Pty Ltd[45] , I am satisfied in the particular circumstances of this case that if consultation in accordance with the requirements of the Fast Food Award had occurred, "it would have made no difference to the ultimate outcome",[46] save that Mr Slabko would have remained employed by Seck for a further period of two weeks. Although I have concluded no different outcome would have resulted had proper consultation been undertaken, Seck's abject failure to properly consult with Mr Slabko gives weight to his argument that his dismissal was harsh, unjust and unreasonable.

[56] Of further relevance is the fact that Mr Slabko was not afforded any procedural fairness. The fair and decent thing to do, even absent knowledge of the consultation obligations under the Fast Food Award, would have been to arrange a meeting with Mr Slabko to inform him of the situation and the reasons why Seck no longer required his position.

• [57] I also accept that the termination of Mr Slabko's employment was harsh because the dismissal had severe personal and financial consequences for Mr Slabko, who is the primary income earner for young dependants.[47]

Conclusion - harsh, unjust and/or unreasonable dismissal

[58] After considering each of the matters specified in s 387 of the Act, my evaluative assessment is that Seck's dismissal of Mr Slabko was harsh and unreasonable. Although Seck had a valid reason to make Mr Slabko's position redundant, Seck's unreasonable and extensive failure to comply with its consultation obligations in relation to Mr Slabko meant that he had no real opportunity to consider and form a view on his possible redundancy and present those views and suggestions to Seck prior to being dismissed. In the result, Mr Slabko was dismissed in circumstances where I am satisfied on the balance of probabilities that compliance with Seck's consultation obligations would have resulted in Mr Slabko working for a further two weeks. Although I have found, on the balance of probabilities, that Mr Slabko's employment would have come to an end at the conclusion of the consultation process, he has missed out on two weeks' pay (during the consultation process) and the opportunity to engage in meaningful dialogue with Seck in an attempt to persuade management of a different outcome. The dismissal was also harsh because of the failure to afford any procedural fairness to Mr Slabko, as well as the personal and financial impact which the dismissal has had on Mr Slabko.

[59] Having found that Mr Slabko was protected from unfair dismissal, and that his dismissal was harsh and unreasonable, it is necessary to consider what, if any, remedy should be granted to him. Mr Slabko did not seek the remedy of reinstatement. In any event, I am satisfied that reinstatement would be inappropriate in all the circumstances because trust and confidence has broken down between the parties and Seck.

• [60] Section 390(3)(b) of the Act provides the Commission may only issue an order for compensation if it is appropriate in all the circumstances. A compensation remedy is designed to compensate an unfairly dismissed employee in lieu of reinstatement for losses reasonably attributable to the unfair dismissal within the bounds of the statutory cap on compensation that is to be applied.[48]

[61] Having regard to all the circumstances of the case, including the fact that Mr Slabko has suffered financial loss as a result of his unfair dismissal, I consider that an order for payment of compensation to him is appropriate.

[62] It is necessary therefore for me to assess the amount of compensation that should be ordered to be paid to Mr Slabko. In assessing compensation, I am required by s 392(2) of the Act to take into account all the circumstances of the case including the specific matters identified in paragraphs (a) to (g) of this subsection.

• [63] I will use the established methodology for assessing compensation in unfair dismissal cases which was set out in Sprigg v Paul Licensed Festival Supermarket[49] and applied and elaborated upon in the context of the current Act by Full Benches of the Commission in a number of cases.[50] The approach to calculating compensation in accordance with these authorities is as follows:

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 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 he would have received if they had continued in their employment.

Remuneration Mr Slabko would have received, or would have been likely to receive, if he had not been dismissed (s 392(2)(c))

• [64] Like all calculations of damages or compensation, there is an element of speculation in determining an employee's anticipated period of employment because the task involves an assessment of what would have been likely to happen in the future had the employee not been dismissed.[51]

[65] I am satisfied on the balance of probabilities that if Mr Slabko had not been dismissed on the grounds of redundancy on 22 July 2025, his employment would have terminated at the conclusion of a proper consultation process, which would have lasted a period of two weeks. That is, Mr Slabko would have been made redundant on 5 August 2025. My reasons for making this finding are set out above.

• [66] At the time of his dismissal, I am satisfied that Mr Slabko was employed by Seck on a part time basis, earning $30 per hour, with an entitlement to work at least 15 hours per week. I consider it more likely than not that Mr Slabko would have continued working 15 hours per week if he had been retained in employment for a further two weeks after 22 July 2025. Hence, I am satisfied that if Mr Slabko had remained employed from 22 July 2025 to 5 August 2025 (inclusive) he would have received $900[52] plus $108 in statutory superannuation.

Remuneration earned (s 392(2)(e)) and income reasonably likely to be earned (s 392(2)(f))

[67] In the period from 22 July 2025 until 5 August 2025 (inclusive), I accept Mr Slabko's evidence that he did not receive or earn any remuneration.

• [68] Thus, my view is that $900 plus $108 in statutory superannuation is the gross amount of remuneration Mr Slabko would likely have earned had he not been dismissed by Seck and instead continued to be employed until the conclusion of a further two-week period commencing on 22 July 2025 and concluding on 5 August 2025. This calculation is intended to put Mr Slabko in the position he would have been in but for the termination of his employment.[53]

[69] Seck submits that it is a small employer and it has experienced a significant downturn in delivery orders in 2025. It submits that this supports the making of a small compensation order.

[70] The compensation order I am contemplating, $900 plus $108 superannuation, is small. The limited financial evidence before the Commission does not satisfy me that making such a compensation order will have a significant impact on the viability of Seck's enterprise.

[71] My view is that no adjustment is required on this account.

[72] My view is that Mr Slabko's period of service with Seck (about 1.35 years) does not justify any adjustment to the amount of compensation.

[73] The evidence establishes that Mr Slabko has made reasonable efforts to obtain alternative employment following his dismissal on 22 July 2025. I accept that Mr Slabko has applied for many jobs since his dismissal by Seck.

[74] In all the circumstances, my view is that Mr Slabko acted reasonably to mitigate the loss suffered by him because of the dismissal and I do not consider it appropriate to reduce the compensation on this account.

• [75] It is necessary to consider whether to discount the remaining amount ($900 plus $108 in statutory superannuation) for "contingencies". This step is a means of taking into account the possibility that the occurrence of contingencies to which Mr Slabko was subject might have brought about some change in earning capacity or earnings.[54] Positive considerations which might have resulted in advancement and increased earnings are also taken into account.

• [76] The discount for contingencies should only be applied in respect to an "anticipated period of employment" that is not actually known, that is a period that is prospective to the date of the decision.[55]

[77] Because I am looking in this matter at an anticipated period of employment which has already passed (22 July 2025 until 5 August 2025), there is no uncertainty about Mr Slabko's earnings, capacity or any other matters during that period of time. In all the circumstances, my view is that it is not appropriate to discount or increase the figure of $900 plus $108 in statutory superannuation in statutory superannuation for contingencies.

[78] Save for the matters referred to in this decision, my view is that there are no other matters which I consider relevant to the task of determining an amount for the purposes of an order under s 392(1) of the Act.

[79] I have considered the impact of taxation, but my view is that I prefer to determine compensation as a gross amount and leave taxation for determination.

[80] If misconduct contributed to Seck's decision to dismiss Mr Slabko, the amount of compensation can be reduced on account of the misconduct. For the reasons explained above, I am not satisfied on the evidence before the Commission that the alleged misconduct committed by Mr Slabko contributed to Seck's decision to dismiss him on the ground of redundancy. As Ms Nischal explained in her evidence, Seck was still investigating these allegations at the time it decided to terminate Mr Slabko's employment as a result of the downturn in business. Accordingly, this factor does not impact my assessment of the compensation that should be awarded to Mr Slabko.

Shock, distress or humiliation, or other analogous hurt (s 392(4))

[81] I note that in accordance with s 392(4) of the Act, the amount of compensation calculated does not include a component for shock, humiliation or distress.

[82] The amount of $900 plus $108 in statutory superannuation in statutory superannuation is less than half the amount of the high income threshold immediately before the dismissal. It is also less than the total amount of remuneration to which Mr Slabko was entitled in his employment with Seck during the 26 weeks immediately before his dismissal. In those circumstances, there is no basis to reduce the amount of $900 plus $108 in statutory superannuation by reason of s 392(5) of the Act.

[83] No application has been made to date by Seck for any amount of compensation awarded to be paid in the form of instalments.

• [84] In my view, the application of the Sprigg formula does not, in this case, yield an amount that is clearly excessive or clearly inadequate. Accordingly, there is no basis to reassess the assumptions made in reaching the amount of $900 plus $108 in statutory superannuation.[56]

[85] For the reasons I have given, my view is that a remedy of compensation in the sum of $900 (less taxation as required by law) plus superannuation at the statutory rate of 12% ($108) in favour of Mr Slabko is appropriate in the circumstances of this case. An order will be made to that effect PR796756

[86] Mr Slabko contends that his wages were underpaid during his employment with Seck. The Fair Work Commission does not have jurisdiction to determine such claims. Mr Slabko can pursue such claims in a court of competent jurisdiction.

[2] Jones v Department of Energy and Minerals [1995] IRCA 292; (1995) 60 IR 304 at 308 per Ryan J; applied in Ulan Coal Mines Limited v Howarth [2010] FWAFB 3488; (2010) 196 IR 32 (Ulan Coal 1) at [17]

[5] Dibb v Commissioner of Taxation [2004] FCAFC 126; (2004) 136 FCR 388 at 404-5

[6] Kekeris v A. Hartrodt Australia Pty Ltd [2010] FWA 674 at [27] per Hamberger SDP

[7] Helensburgh Coal Pty Ltd v Bartley & Ors [2025] HCA 29 at [31]

[8] Johnston v Blue Circle Southern Cement Pty Ltd (2010) 202 IR 121 at [48]

[15] Hearing Book at pp 78[12] and 83[34]

[23] Hearing Book at pp 81-83[25]-[35]

[32] UES (Int'l) Pty Ltd v Harvey [2012] FWAFB 5241 (UES) at [42]; Ventyx Pty Ltd v Murray [2014] FWCFB 2143 (Ventyx) at [142]

[34] Hearing Book at pp 71-72[18] & [22]

[35] UES at [43]; Ventyx at [143]

[36] UES at [43]; Ventyx at [143]

[37] UES at [43]; Ventyx at [144]

[38] UES at [43]; Ventyx at [144]

[39] UES at [45]; Ventyx at [146]

[40] UES at [33] & [47]; Ventyx at [149]-[150]

[42] UES at [49]; Maswan v Escada Textilvertrieb [2011] FWA 4239 (Maswan) at [39]; Ventyx at [151]-[162]

[43] Gomes v OE & DR Pope Pty Ltd [2014] FWC 8342 at [59] per Hampton C

[45] Ltd [2013] FWC 9093 (Alice Car Centre) at [53]

[48] Kable v Bozelle, Michael Keith T/A Matilda Greenbank [2015] FWCFB 3512 at [17]

[49] [1998] AIRC 989; (1998) 88 IR 21

[50] Tabro Meat Pty Ltd v Heffernan [2011] FWAFB 1080; Read v Golden Square Child Care Centre [2013] FWCFB 762; Bowden v Ottrey Homes Cobram [2013] FWCFB 431

[51] Double N Equipment Hire Pty Ltd v Humphries [2016] FWCFB 7206 at [16]- [17]

[52] 15 hours x $30 per hour x 2 weeks = $900

[53] Bowden at [24], citing Ellawala v Australian Postal Corporation Print S5109 at [35]

[54] Ellawala v Australian Postal Corporation Print S5109 at [36]

[55] Enhance Systems Pty Ltd v Cox PR910779 at [39]

[56] Smith v Moore Paragon Australia Ltd [2004] AIRC 57; (2004) 130 IR 446 at [32]

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