Compensation for unlawful dismissal
The title of this post is technically abstract because there is no cause of action known to Australian law called “unlawful dismissal”; it is a colloquial term and its correct title should probably be “compensation for a breach of the general protections involving a dismissal.” So that is what this post is about.
Compensation for a contravention of the general protections will be assessed by reference to the true loss the unlawful conduct occasions, and not upon the principles of some contrived argument to the effect it should be limited to the loss and damage which would have been suffered if it had not occurred.
“Compensation for Breach
- Since the date of termination with the respondent on 22 August 2016:
- a) the applicant was out of work for almost 8 months; and
- b) he applied for approximately 66 positions as well as making informal approaches within his own circle of contacts.
- On 19 June 2017 he commenced a project role with Toll Holdings.
The applicant has been out of work further 265 days being a loss of $112,673.11 based on a salary of $155,000 per annum. This should be added to that calculation superannuation entitlements calculated at 9.5% being $10,703.95 and 2.8 weeks of annual leave based on a weekly rate of $2,980.70 equalling $8,346.16. A total loss of wages and entitlements total $131,723.22.
- The applicant is also entitled to statutory interest from 22 August 2016 pursuant to s.546(3)of the FW Act.
- S.545(1)and s.545(2)(b) of the FW Act provide:
545(1) The Federal Court or the Federal Circuit Court may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision.
545(2) Without limiting subsection (1), orders the Federal Court or Federal Circuit Court may make include the following:
(b) an order awarding compensation for loss that a person has suffered because of the contravention;
- As noted above at  the respondent admits that the Applicant is entitled to be paid $1,266.12 as reimbursement for expenses paid.
- The respondent submitted compensation should be limited by regard to the entitlements that the applicant was entitled to upon the terminated his employment or alternatively that if the employment was not terminated on 22 August 2016 it could have been terminated lawfully thereafter on five weeks’ notice.
- That submission fails to tackle that there has been a breach of the Act and the applicant is entitled to compensation arising from the breach. The consequence of the breach has been that the applicant has been out of work for a considerable period of time. The respondent’s submission would have the Court act as if the breach never occurred or that there was no the benefit to be derived from the existence of protection afforded by the legislation.
- No evidence has been placed before the court such as to persuade the court that employment was unlikely to continue for an extended period had the contravention not occurred. Whilst the respondent raised as an issue that the applicant had failed to follow directions from executive staff those claims lacked any detail in the evidence filed and did not substantiate those claims. The extent of the respondent’s evidence concerning a failure to follow directions is referred to in  above. In relation to concerns that the applicant had on numerous occasions failed to provide adequate notice of his absences from work, the only evidence in relation to that issue was email correspondence between the applicant and Matthew Griffiths on 24 October 2013 and that email correspondence indicates the applicant was absent from work for short period due to illness.
- Further, the tone adopted by the applicant in the correspondence to Ms Kaliviotis, Mr Tiller and Mr Bolton was not such as to indicate that the relationship between the applicant and his employer had broken down to the point that his employment was likely to cease in the near future but for the breach.
- My view the applicant is entitled to compensation in the sum is outlined above together with interest pursuant to s.546of the FW Act.”
Fatouros v Broadreach Services pty Ltd (2018) FCCA 769 delivered 29 March 2018 per McNab