WHAT COULD MY FAIR WORK CASE BE WORTH?
By pursuing an Unfair Dismissal or General Protections application in the Fair Work Commission, you may be awarded a payment of money (compensation) or your job back (reinstatement).
One key difference between an Unfair Dismissal and a General Protections application is the compensation that may be awarded. For Unfair Dismissal, the amount awarded is meant to compensate in place of reinstatement, and is intended to reasonably place the dismissed employee in the financial position they would have been in, had they not been dismissed. Compensation for Unfair Dismissal applications is capped at the Applicant’s 26 weeks’ pay or $76,800 at maximum. By contrast, for General Protections, the amount of compensation available is not capped, and Applicants can also seek damages for non-economic pain and suffering.
POSSIBLE OUTCOMES
→ Unfair Dismissal Cases←
Reinstatement
Compensation (capped at 26 weeks’ pay)
→ General Protections Cases ←
Reinstatement
Compensation
General Damages
CALCULATION OF COMPENSATION
When making orders, the Fair Work Commission calculates compensation following the decision in Sprigg v Paul’s Licensed Festival Supermarket (1988) 88 IR 21, which requires undertaking the following steps:
1. Assess remuneration lost
» Estimate the remuneration the Applicant likely would have received if their employment was not terminated
» This usually involves considering how much longer the Applicant’s employment would have reasonably continued.
2. Deduct amount earned since termination
» The Commission may also consider whether the Applicant made a sufficient effort to mitigate their losses.
This means that if an Applicant did their best to avoid losing more money, they may be more eligible for compensation.
3. Deduct an amount to account for contingencies
» That is, the Commission may reduce the amount of compensation awarded by a certain percentage to reflect the uncertainty of whether the Applicant would have received the remuneration lost if not terminated.
» This may involve considering the uncertainty of whether the employment would continue.
4. Calculate the impact of taxation, to estimate the actual amount the Applicant would have received if their employment continued
» That is, the Commission would identify what the net compensation amount would be, so the Applicant would know how much they are entitled to after tax.
In determining a final amount of compensation to be awarded, in place of reinstatement, the Commission may then consider the following factors:
- a. The effect of the order on the viability of the employer’s enterprise.
- b. The length of the person’s service with the employer
- c. The remuneration the person would have received, or would have been likely to receive, if the person had not been dismissed.
- d. The efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal.
- e. The amount of any remuneration earned by the person 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 person during the period between the making of the order for compensation and the actual compensation.
- g. Any other matter that the FWC considers relevant.
Further, if the Applicant was dismissed due to misconduct, the amount of compensation is to be reduced by an appropriate amount determined by the FWC.
UNFAIR DISMISSAL CASES
Torres-Carne v Darwin Aboriginal and Islander Women’s Shelter (DAIWS)
Factual Details:
The Applicant was employed as a casual Domestic Violence Support Worker by the Respondent for almost four years. The Applicant was dismissed because her personal circumstances had changed and she was only available for specific shifts, which the Respondent claimed they could not accommodate.
Decision on Unfair Dismissal:
Deputy President Sams determined that the dismissal was unfair because even though there was a valid reason, the Applicant was deprived of procedural fairness.
Remedy:
The Applicant was awarded 5 weeks’ compensation, to the amount of $3,576.38 gross.
Misconduct Cases
Bowden v Ottrey Homes Cobram and District Retirement Villages Inc. [2013] FWCFB 431 View moreFactual Details:
The Applicant was employed for four years and three months, beginning as a casual employee and becoming a permanent part-time employee after 10 months of employment. The Applicant was dismissed for alleged misconduct relating to Facebook exchanges and sending a Workplace Politics document to colleagues.Decision on Unfair Dismissal:
The FWC determined that the dismissal was unfair because the Applicant was summarily dismissed rather than with notice. The person who had made the allegations against the Applicant was also equally participating in the Facebook exchanges for which the Applicant was dismissed. Furthermore, the dismissal was especially harsh because there were no previous allegations or complaints against the Applicant to warrant summary dismissal without notice or pay in lieu of notice.Remedy:
The Full Bench of the FWC ordered that the Applicant was to be paid $7,500 gross less applicable taxation as compensation in lieu of reinstatement. This amount was reached by first calculating the gross amount the Applicant would have received in the six months since the dismissal, then discounting the amount of compensation by 20% to account for the misconduct of the Applicant leading to dismissal.
Decision on Unfair Dismissal:
In this case, although there were sufficient grounds for termination based on misconduct, the dismissal was unfair because of a lack of a fair procedure. The Applicant was not able to respond to the allegations against him, even though any such response would not have altered the decision to terminate him.Remedy:
The Applicant was awarded $7,459.41 in remuneration for three weeks’ pay, as it was found that the Applicant would have been employed for a further three weeks.Factual Details:
The Applicant was summarily dismissed for alleged misconduct, via a telephone call. It was alleged that the Applicant had walked past a workshop employee and had grabbed the employee’s testicles. The Applicant denied this, arguing that he had only flicked the other employee on the bottom with a folder as he walked past. The Applicant argued that the allegations against him resulting in his dismissal had arisen due to raising safety issues in the workplace on seven occasions.Decision on Unfair Dismissal:
Commissioner Simpson of the FWC determined that the dismissal was unfair because the misconduct was not a valid reason for dismissal and the Applicant was not afforded procedural fairness. The Applicant was not given an opportunity to respond prior to the decision being made, without notice of the call or an opportunity to discuss the purported issues.Remedy:
The Applicant was awarded compensation of $19,253.72 gross, plus 9.5% superannuation. This amount was calculated by the estimate that the Applicant’s employment would have lasted at least another 16 weeks if not dismissed, minus a reduction of four weeks to account for the Applicant’s failure to mitigate his loss (though accounting for difficulty to find another job due to COVID-19), therefore leading to a total of 12 weeks.
Factual Details:
The Applicant was employed as a trade assistant in the heavy machinery industry. The Applicant was summarily dismissed for misconduct, without notice. The Applicant’s misconduct was taking his 11-year-old son to work and seating him on a potentially operating forklift, while the Applicant took a photo and posted it to his private Facebook account. It was a serious safety concern to the company for a child to be placed on a forklift unauthorised, as well as a reputational concern by the photo being posted to Facebook.Decision on Unfair Dismissal:
The FWC determined that the Applicant’s summary dismissal without notice was harsh. Even though the misconduct warranted dismissal, it did not warrant summary dismissal, and thus the Applicant should have been received five weeks’ notice (or this pay in lieu of notice).Remedy:
The Applicant was awarded his five weeks’ notice, but discounted by 20% to account for the misconduct. The total sum awarded was $2,356.00 plus 9.5% superannuation.Redundancy Cases
Williamson v Tilling Timber Pty Ltd [2020] FWC 4275 View more
Factual Details:
The Applicant was employed for almost eight years as a full-time employee, during which time he was promoted a number of times, most recently to the position of Team Leader of the afternoon shift in 2016.
Redundancy:
The company alleged that the dismissal was a genuine redundancy due to a downturn in the construction industry, but the Applicant alleged that he was targeted by the redundancy after he advised his employer that he required hip surgery and would need time off work. The hip injury had been incurred prior to commencing employment, but had recently become aggravated. On 31 January 2020, the Applicant booked himself in for hip surgery for 25 February 2020, and informed his employer of such. Eight days later on 7 February 2020, the Applicant was advised that his role was redundant and there were no other opportunities for redeployment.
Decision on Redundancy:
Commissioner Yilmaz of the FWC determined that the termination was not a genuine redundancy because the company failed to consult and redeploy him. This failure of consultation and redeployment also led to the finding that the termination was an unfair dismissal.
Remedy:
The Applicant was awarded total compensation of $10,492.63 gross, which was calculated after deducting:
- Already received 13 weeks’ severance pay, 4 weeks’ notice and 3 weeks’ authorised personal leave, leaving 32 weeks of the 52 weeks of likely continued employment.
- A contingency of 50%, as it is uncertain whether the Applicant would have accepted a role on lesser pay, leaving 16 weeks.
- A contingency of 25% for the reduction in work due to reduced sales and the COVID-19 pandemic, leaving 12 weeks.
- A further deduction of 20% for lack of evidence of effort of the Applicant to find alternative work (therefore not mitigating his losses), leaving 9.6 weeks.
Paramore v Knight Watch Security Pty Ltd [2020] FWC 4423View More
Factual Details:
The Applicant was employed in a senior management role for one year and four months in the security services industry. The Applicant was dismissed for reason of redundancy, but the Applicant argued it was not a genuine redundancy.
Redundancy:
The Applicant argued that he should have been considered for the newly created role of General Manager of NSW, considering he had the skills and experience to do so. The Applicant further contended that he was not considered for this role because his relationship with his superior had broken down.
Decision on Redundancy:
The FWC determined that the redundancy was not genuine because the Applicant could have reasonably been redeployed in the employer’s enterprise.
Decision on Unfair Dismissal:
The FWC determined that the dismissal was unfair because there was no valid reason for dismissal. The FWC concluded there was no evidence of poor performance warranting dismissal, as alleged by the Respondent.
Remedy:
The Applicant was awarded compensation of $17,856.92 gross. It was estimated that the Applicant’s employment would likely not have continued for more than 16 weeks given the breakdown in the employment relationship. Therefore, the Applicant was awarded the 16 weeks’, less 8 weeks’ pay he received at termination and 2.2 weeks of JobSeeker payment.
Green v Duratec Limited [2020] FWC 4960 View more
Factual Details:
The Applicant was employed by the Respondent for less than three years as a skilled labourer. The Applicant was dismissed for reason of redundancy. The issue in this case was whether the Applicant was dismissed by way of a genuine redundancy, and if so, the Applicant would not have been eligible for an Unfair Dismissal remedy.
Redundancy:
The Applicant argued that he was not consulted about his redundancy and dismissed on the same day he was notified. Additionally, the Applicant believed that he was targeted by the redundancy because he had raised concerns about his job security prior to being dismissed. Conversely, the Respondent (the company) argued that the redundancy of the Applicant was due to a downturn in business in Victoria during the COVID-19 pandemic, and that the Applicant was one of 17 other staff members who were also made redundant.
Decision on Redundancy:
The FWC determined that dismissal was not a genuine redundancy because at the time the Applicant was dismissed, his position was not yet redundant, as the company had not yet decided which positions were surplus to the company’s organisational requirements.
Unfair Dismissal:
If established that the redundancy was not genuine, the Fair Work Commission then considers whether the dismissal is an ‘unfair dismissal’. The Applicant argued the dismissal was unfair because of a lack of procedural fairness, particularly because he was dismissed immediately without notice or discussion about other proposals. The company did not require the Applicant’s job to be performed by anyone. The company had considered redeployment opportunities for the Applicant but had not identified any other available work for him.
Decision on Unfair Dismissal:
The FWC determined the dismissal was justified, but the Applicant should still have been consulted about his dismissal for redundancy, even if the outcome would have still been the same. Therefore, the lack of consultation meant that the dismissal was unfair.
Remedy:
The Applicant was awarded compensation to the amount of one week’s pay ($1,672.20 gross), plus 9.5% superannuation (total of $1,831.06 gross). This amount of compensation reflected the fact that the Applicant would still have likely been dismissed due to the company’s financial situation.
GENERAL PROTECTIONS CASES
Roohizadegan v TechnologyOne Limited (No 4) [2020] FCA 1729 View more
Exercise of a Workplace Right:
The Applicant was a senior executive in a large public enterprise software company who made complaints about his employment, including about bullying.
Adverse Action:
In respect of making these complaints, the Applicant was terminated from his employment, which constituted adverse action.
Remedy:
The Federal Court of Australia ordered the Respondent to pay over $5.2 million in respect of compensation, damages and penalties. This was a record ruling. This $5.2 million sum was constituted by:
- $2,825,000 for future economic loss due to the termination
- $756,410 as compensation for lost share options
- $1,590,000 as compensation for breach of contract
- $10,000 in general damages
- $47,000 in penalties.
Liu v Compuworld Pty Ltd [2020] FWC 2569
View More
Discrimination:
The Applicant was discriminated on the basis of pregnancy and disability, namely in relation to gestational diabetes resulting from pregnancy.
Exercise of a Workplace Right:
The Applicant also exercised a workplace right to take personal leave to attend medical appointments, in respect of her pregnancy and disability.
Adverse Action:
The Applicant was terminated from her employment as adverse action for exercising a workplace right and being discriminated against. The Company argued that it was a redundancy, though the Applicant argued that the termination was directly as a result about requesting sick leave for her medical appointments for her pregnancy and resulting disability.
Remedy:
Deputy President Asbury of the FWC ordered the Respondent to pay the Applicant compensation to the total amount of $37,094.60 gross, which was constituted by:
- $5,768 to compensate for economic loss incurred in the two months between the order and the termination
- $13,330.80 to compensate for the Applicant’s lost entitlement to paid maternity leave
- $15,934.10 for future economic loss
- $2,061.70 in superannuation contributions for past and future economic loss.
Lamont v University of Queensland (No 2) [2020] FCA 720View More
Exercise of a Workplace Right:
The Applicant, employed in the higher education industry, exercised their workplace right to make a complaint about the conduct of one of their colleagues.
Adverse Action:
The Applicant was subjected to adverse action by the colleague about whom he had made the complaint, who informed two other professors about the contents of the Applicant’s complaint. Soon after and as a result of making the initial complaint, the University threatened to conduct an investigation into the Applicant’s own conduct, constituting further adverse action.
Remedy:
Rangiah J of the Federal Court of Australia awarded the Applicant $15,000 as damages for mental and emotional distress resulting from the breach of general protection laws. However, the Applicant was not awarded any compensation for economic loss.