An overview of legal procedure & case law
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]
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:
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]
[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.