See Fair Work Act 2009 s.392(2)(d)
When considering ordering compensation it is necessary to consider what steps a person has taken to mitigate their loss.[1]
This means that a person must provide evidence that they have taken reasonable steps to minimise the impact of the dismissal.[2]
What is reasonable depends on the circumstances of the case.[3]
A person is not required to take unreasonable steps to mitigate their loss such as:
Mitigation means the employee has taken deliberate, positive steps to lessen the effect that the dismissal has had on them, such as by seeking new employment.
The general position is that a wrongfully dismissed person cannot claim a loss which would have been avoided by accepting a reasonable offer of new employment.[5] The refusal of another position with the employer at the same rate of pay may amount to a failure to mitigate.[6]
The following circumstances may not amount to a failure to mitigate when re-employment is offered:
[1] Fair Work Act s.392(2)(d).
[2]Biviano v Suji Kim Collection, PR915963 (AIRCFB, Ross VP, O'Callaghan SDP, Foggo C, 28 March 2002) at para. 34; citing Lockwood Security Products Pty Limited v Sulocki and Ors, PR908053 (AIRCFB, Giudice J, Lacy SDP, Blair C, 23 August 2001) at para. 45.
[3]Biviano v Suji Kim Collection, PR915963 (AIRCFB, Ross VP, O'Callaghan SDP, Foggo C, 28 March 2002) at para. 34; citing Payzu Ltd v Saunders [1919] 2 KB 581.
[4]Biviano v Suji Kim Collection, PR915963 (AIRCFB, Ross VP, O'Callaghan SDP, Foggo C, 28 March 2002) at para. 35; citing Burns v M.A.N. Automotive (Aust.) Pty Ltd (1986) 161 CLR 653, 659 per Gibbs CJ and at 677 per Brennan J; Jewelowski v Propp [1944] 1 All ER 483, 484 (Lewis J); and Elliot Steam Tug v Shipping Controller [1922] 1 KB 127, 140‒141.
[5]Biviano v Suji Kim Collection, PR915963 (AIRCFB, Ross VP, O'Callaghan SDP, Foggo C, 28 March 2002) at para. 45; citing Williamson v Commonwealth (1907) 5 CLR 174, 185.
[6]Biviano v Suji Kim Collection, PR915963 (AIRCFB, Ross VP, O'Callaghan SDP, Foggo C, 28 March 2002) at para. 45; citing Brace v Calder [1895] 2 QB 253.
[7]Biviano v Suji Kim Collection, PR915963 (AIRCFB, Ross VP, O'Callaghan SDP, Foggo C, 28 March 2002) at para. 48.
[8]Biviano v Suji Kim Collection, PR915963 (AIRCFB, Ross VP, O'Callaghan SDP, Foggo C, 28 March 2002) at para. 47; citing Bostik (Australia) Pty Ltd v Gorgevski (No. 1), (1992) 36 FCR 20, 32.