Any other matters that the Commission considers relevant

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Overview

See Fair Work Act 2009 s.392(2)(g)

The Fair Work Commission can consider any other factors that it deems relevant to the consideration of ordering compensation for an unfair dismissal.^[1]

Case examples

Consideration of other relevant factors

Hillbrick v Marshall Lethlean Industries Pty Ltd

Hillbrick v Marshall Lethlean Industries Pty Ltd [2010] FWA 7704 (Cribb C, 15 October 2010).

The employee was able to find new employment; however the employment was casual labour hire and less secure and reliable, and the rate of pay was slightly lower, than his employment with his previous employer. The employee was also 48 years of age and suffered a medical condition which rendered him unable to seek alternative employment for a number of months. These factors were taken into account, along with the other factors under s.392, in calculating the amount of compensation to be ordered.

McKerrow v Sarina Leagues Club Incorporated T/A Sarina Leagues Club

McKerrow v Sarina Leagues Club Incorporated T/A Sarina Leagues Club [2012] FWA 6684 (Asbury C) 7 August 2012.

The dismissed employee submitted she was unable to obtain employment within 45km of her home due to her reputation being tarnished by the respondent after the dismissal. The Commission found this was a relevant factor when calculating the amount of compensation to order.

The Commissioner used the Australian Tax Office formula for business travel as a guide to come to an amount that should be added per week to the compensation as a consequence of her additional travel.

Misconduct reduces amount of compensation

See Fair Work Act s.392(3)

If the Commission finds that an employee’s misconduct contributed to their dismissal, the Commission must reduce the amount of compensation by an appropriate amount.^[2]

Misconduct after the dismissal may be taken into account in assessing remedy.^[3]

Misconduct may involve:

A breach of workplace health and safety^[4]
negligent culpability^[5]
threats of violence,^[6] or
swearing at management.^[7]

Case examples

Misconduct by employee

Tabro Meat Pty Ltd v Heffernan

Tabro Meat Pty Ltd v Heffernan (2011) 208 IR 101.

On appeal, the amount of compensation ordered was reduced by 15% on account of the misconduct of the employee which contributed to this dismissal. The employee had committed a serious breach of health and safety policy by incorrectly driving a forklift. The employee also later swore at a Director of the employer.

Tenix Defence Pty Ltd v Galea

Tenix Defence Pty Ltd v Galea, PR928494 (AIRCFB, Giudice J, Lawler VP and Bacon C, 11 March 2003).

The employee was found to have engaged in threatening behaviour towards colleagues on 2 occasions after his dismissal.

The Full Bench found that although threats of this nature will often mean that reinstatement is inappropriate, in the present case the relationship between the employee and employer could improve if the employee was reinstated as the threats were 'a product of his frustration' and not indicative of his likely future conduct. However, it was found that the threats against a witness were not 'idle' and were serious in nature and for this reason reduced the amount ordered for lost remuneration

Shock, distress etc disregarded

See Fair Work Act s.392(4)

The Commission can only make an order to compensate for lost remuneration.

The amount cannot include an element for shock, distress or humiliation (or any other similar hurt) caused by the manner of the employee’s dismissal.^[8]

This reflects the common law position that shock, distress or humiliation resulting from dismissal is not compensable.^[9]

References

^[1] Fair Work Act s.392(2)(g).

^[2] Fair Work Act s.392(3).

^[3] Tenix Defence Pty Ltd v Galea, PR928494 (AIRCFB, Giudice J, Lawler VP, Bacon C, 11 March 2003).

^[4] Tabro Meat Pty Ltd v Heffernan (2011) 208 IR 101, 109‒110.

^[5] Robat v Iveco Trucks Australia Ltd [2011] FWA 2915 (Lewin C, 16 May 2011) at para. 64.

^[6] Tenix Defence Pty Ltd v Galea, PR928494 (AIRCFB, Giudice J, Lawler VP, Bacon C, 11 March 2003).

^[7] Tabro Meat Pty Ltd v Heffernan (2011) 208 IR 101, 109‒110.

^[8] Fair Work Act s.392(4).

^[9] Addis v Gramophone Co Ltd [1909] AC 488; and Baltic Shipping Co v Dillon (1993) 176 CLR 344; as cited in Explanatory Memorandum to Fair Work Bill 2008 at para. 1564.

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Last updated

16 March 2021

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