1 Fair Work Act 2009 s.394 - Application for unfair dismissal remedy Mr Joshua Donaldson v All Lifting & Safety Pty Ltd (U2025/17304) COMMISSIONER CONNOLLY MELBOURNE, 27 APRIL 2026 Application for an unfair dismissal remedy – remedy decision – compensation ordered. [1] On 31 October 2025, Mr Donaldson (the Applicant) made an application under s.394 of the Fair Work Act 2009 (the Act) alleging that he was unfairly dismissed from his employer and that his dismissal on the same day was harsh, unjust or unreasonable. [2] Mr Donaldson’s employer is All Lifting & Safety Pty Ltd (the Respondent). Mr Donaldson commenced working for the Respondent in April 2022. [3] The Respondent disputes Mr Donaldson has been unfairly dismissed. Their position is that Mr Donaldson was terminated with cause and notice because of his failure to attend work on a regular basis after taking over 150 days off over the period of his employment and being warned he would be dismissed if his attendance did not improve. [4] On allocation to my Chambers, directions were issued for a determinative conference to be held on 18th February 2026 to consider the merits of Mr Donaldson’s application. In advance of proceedings, parties were directed to file any material on which they wished to rely on at the determinative conference. Both parties filed relevant material. [5] The determinative conference proceeded as listed on Wednesday, February 18th. Mr Donaldson appeared at the FWC in Melbourne in accordance with my directions. Mr Warner attended for the Respondent, joining proceedings after they had already commenced and connecting on MS Teams from Indonesia. [6] Both Mr Warner and Mr Donaldson provided evidence and submissions to the Commission. I considered all these materials. [7] Being satisfied that Mr Donaldson has made his application within the required time and was earning below the high-income threshold, I have also been satisfied Mr Donaldson is a person protected from unfair dismissal. It is not contested that the dismissal was consistent with the Small Business Fair Dismissal Code. It is also not asserted, and I am satisfied this is not a case of genuine redundancy. [2026] FWC 1506 DECISION [2026] FWC 1506 2 [8] As I have been satisfied that the requirements of s.396 are met, I am required to consider the merits of whether Mr Donadson’s dismissal was harsh, unjust or unreasonable. [9] At the conclusion of the determinative conference, I advised the parties of my findings with respect to Mr Donaldson’s application. A record of these findings was recorded in transcript and what follows is an edited version of these conclusions: “THE COMMISSIONER: Okay. All right. Well, I'm conscious of both the time and the circumstances confronting you, Mr Warner, given where you are. So unless there's anything further, I've heard everything that there is in this case, from both of you, on the criteria I must consider. In the circumstances, what I'm proposing to do is to make a determination now, as I've indicated, as to what my assessment is, on balance. Any objections to that approach, Mr Warner? MR WARNER: No. THE COMMISSIONER: Mr Donaldson, anything from you? MR J DONALDSON: No. THE COMMISSIONER: 387(a): was there a valid reason? I've heard what you've both had to say about this, and I think that the concerns the employer had about both attendance and effort, or otherwise, may well constitute a valid reason for termination, and I'm satisfied that that's the case in these circumstances. On balance, that factor weighs in favour of the Respondent. Now, the issue, I think, overwhelmingly, and I know what you've had to say about this, Mr Donaldson, is that the concerns about attendance and Mr Warner's remarks about that, I think support that being the case. So that's the first criteria. 387(b): The next criteria is notification. Now, on this factor I'm not satisfied, Mr Warner, to your point that Mr Donaldson was made aware of the concerns that you had about his attendance. There's no evidence before me to suggest that that is the case. There's nobody here to say there was verbal warnings presented, unfortunately, for your case, Mr Warner, and the evidence you have provided makes it clear that the warning he was provided, in August, was about failing to notify. It wasn't about his absences, it wasn't about that he took a lot of sick leave. It explicitly says, 'This is for failing to notify me of your absences'. Mr Donaldson had a right to be made properly aware of the concerns. If the employer had a concern about the number of days off, he was entitled to be provided that, in clear detail, and that wasn't what he was provided in August. What he was provided in October does raise some concerns about his performance, and I accept that and I've taken those into account already, in the findings that I've made about the valid reason. But on notification, I'm not satisfied that he was properly notified of the reason, the valid reason for termination, that you say led to his dismissal. [2026] FWC 1506 3 387(c): In terms of the next criteria, which is an opportunity to respond. In this case, on this factor, I accept that there was an opportunity to respond to the concerns about capacity or conduct and there was at least an opportunity to put those in writing, Mr Donaldson, and you did that. The evidence is that you set out a whole series of concerns in October, and you responded to them, as they were put to you, in the meeting of the 21st. So, on that factor, that's the finding I make. 387(d): In terms of a reasonable refusal to allow the person to have a support person present, there's no contest here and this is an irrelevant factor, because you don't say there was an unreasonable refusal and the Respondent hasn't made any remarks about it. 387(e): In terms of was there a warning of unsatisfactory work performance, on that factor I think there was a warning. There was at least the meeting in October, and that weighs in favour of the Respondent. 387(f) & (g): In terms of size of the Respondent's enterprise, I'm not satisfied that that's a relevant factor. And in terms of the absence of a human resource management specialist, again, I'm not satisfied that a business of not inconsiderable size, it's not a small business, it has locations across Australia and a significant number of employees. Certainly, on your own evidence, Mr Warner, it's plus 50 employees domiciled within the realms of the Fair Work Act. That's not an insignificant business and there's been no substantive submissions to support that. While I accept that you don't fire people very often, Mr Warner, on your evidence, it was not a factor that played a role in these circumstances. It's not that you've never done it before, I think, is your evidence. So, on that factor I consider it to be a neutral consideration and not relevant to the determination I have to make. 387(h): In terms of the other matters, there is one other matter that I do consider relevant, and that's really what occurred on the day of Mr Donaldson's termination and what followed. They are in his favour. That he was just told verbally that he was being dismissed, that the person who dismissed him didn't reply, on his evidence, that I have no reason to discount, and he's provided me documentary evidence of the request he made for written reasons to be provided to him, that was ignored. That's his evidence. I accept his evidence to be the case and it's not disputed otherwise. So that procedure and the way the termination occurred, and the fact there was no subsequent communication weighs, again, in Mr Donaldson's favour. If I go through the criteria again, just to balance things out from my perspective. On valid reason Mr Warner, it's in your favour. On notification it's in Mr Donaldson's favour. In opportunity to respond it's in your favour, Mr Warner. Unreasonable refusal, it's a neutral consideration. As for warning, that balances in your favour, Mr Warner. The next considerations are neutral, and the considerations of other matters are balanced in Mr Donaldson's favour. Weighing all of those matters up my conclusion is that the dismissal was harsh, unjust and unreasonable and what I'm proposing to do is to consider submissions on whether or not, Mr Warner, Mr Donaldson should be reinstated, which is the primary remedy. Then once I've considered those submissions I'll consider, if necessary, whether or not compensation is appropriate.” [2026] FWC 1506 4 Remedy [10] Following the above remarks, the Applicant and the Respondent expressed their views on opposition to reinstatement. Mr Donaldson sought an order for the payment of 12 weeks compensation in the alternative to being reinstated. In difficult circumstances, Mr Warner sought an opportunity to make written submissions with respect to the Respondent’s position on remedy. I determined to provide this opportunity to both parties and sought the Applicant and the Respondent to provide their written submission on remedy by the 4th of March 2026. Both the Applicant and the Respondent filed additional material. [11] My consideration of this material and determination with respect to the above finding Mr Donaldson was unfairly dismissed is set out below. [12] Under section 390(3) of the Act, I must not order the payment of compensation to the Applicant unless: (a) the FWC is satisfied that reinstatement of the Applicant is inappropriate; and (b)the FWC considers an order for payment of compensation is appropriate in all of the circumstances of the case. Is reinstatement of the Applicant inappropriate? [13] Considering all the circumstances in this case and the submissions, I do not consider reinstatement appropriate or possible. Both the Applicant and the Respondent oppose reinstatement, and I am satisfied in these circumstances it is not an appropriate remedy in this case. Is an order for payment of compensation appropriate in all the circumstances of the matter? [14] Having determined that reinstatement is not appropriate, it does not automatically follow that a payment for compensation is appropriate. As noted by the Full Bench: “[t]he question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one…”1 [15] Where an Applicant has suffered financial loss as a result of the dismissal, this may be a relevant consideration in the exercise of this discretion.2 [16] Mr Donaldson’s evidence is that he has been out of comparable full-time work since being dismissed, a period of almost 17 weeks. The Respondent is opposed to any order of compensation. They submit that on termination Mr Donaldson was paid a further 3 weeks’ notice in addition to payment for his last week’s work. [17] Mr Donaldon’s further evidence is that during this time he has continued work on a casual basis earning an average of $483.00 per week since dismissal. He submits the [2026] FWC 1506 5 approximate weekly difference between his earnings since being dismissed is a loss of $807.00 per week. [18] These facts are not in dispute. On this basis, I am satisfied that the Applicant has incurred financial loss in the period since his termination and that some order for compensation is appropriate. Compensation – what must be taken into account in determining an amount? [19] Section 392(2) of the Act requires all the circumstances of the case to be taken into account when determining an amount to be paid as compensation to the Applicant in lieu of reinstatement including: (a) the effect of the order on the viability of the employer’s enterprise; and (b) the length of the person’s service with the employer; and (c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and (d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and (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; and (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; and (g) any other matter that the FWC considers relevant. [20] After the conclusion of the determinative conference, both parties were provided the opportunity to address these criteria and make additional submissions. Considering all the circumstances of this case, the evidence before me and the additional submissions, I am satisfied I can form a view as to compensation and consider each of these criteria below. (a) the effect of the order on the viability of the employer’s enterprise [21] No submissions have been made in respect of this factor, and no case is made that the Respondent is not an enterprise with capacity to make good its debts and liabilities. I have taken these factors into account in my consideration of the amount of any compensation and whether any compensation is appropriate in the circumstances of this case. (b) the length of the person’s service with the employer [22] The Applicant commenced working for the Respondent in April 2022 and remained employed until terminated. This is not a particularly significant period. [23] Therefore, I do not consider that the Applicant’s length of service supports increasing the amount of any compensation ordered in the circumstances of this case. [2026] FWC 1506 6 (c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed [24] As stated by a majority of the Full Court of the Federal Court: “…in determining the renumeration that the Applicant would have received, or would have been likely to receive…. the Commission must address itself to the Question whether, if the actual termination has not occurred, the employment would have been likely to continue, or would have been terminated at some time by another means. It is necessary for the Commission to make a finding of fact as the likelihood of a further termination in order to be able to assess the amount of renumeration the employee would have received, or would have been likely to receive, if there had not been the actual termination”.3 [25] In the present circumstances, the Applicant’s own evidence is that he would have continued his employment indefinitely. The Respondent’s position was that it had formed a view the Applicant had been given adequate warning that his attendance and performance had to improve and it had failed to do so. And further that they had formed a sound, defensible and well-reasoned decision to bring his employment to an end because of this failure. [26] I have considered these submissions. Considering the Applicant’s acceptance that his attendance record could have been better, I am satisfied that his employment with the Respondent would not have extended much longer than it did. I also consider that even if the Applicant had been clearly warned of the reason for his dismissal and provided a further reasonable opportunity to improve, it is unlikely that he would have done so to the Respondent’s satisfaction. Because of these reasons, I consider that in light of the valid reason the Respondent identified, had they taken the necessary procedural steps to provide the Applicant with notice his employment was at risk and an opportunity to respond to their issues with his attendance record, it is more likely than not that the Respondent would have terminated his employment before the conclusion of the 2025 calendar year. [27] Given the Applicant’s and Respondent’s circumstances, I anticipate the procedural steps for this process to have been concluded by Friday 19th of December 2025. [28] On this basis, I consider the 7-week period between 31st October and 19th of December 2025 to be the ‘anticipated period of employment’.4 [29] It was not disputed the Applicant was paid an average gross weekly wage of $1280.00 per week. (d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal [30] The Applicant submits he has made significant attempts to secure comparable employment and mitigate his loss because of the dismissal. I accept these submissions and they are not in dispute. His evidence includes he has continued performing work in a casual role, earning an average of $473.00 gross per week since the time he has been dismissed. [2026] FWC 1506 7 (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 [31] Mr Donaldson’s evidence is that since his dismissal he has continued to earn on average a gross wage $473.00 per week from ongoing and inconsistent casual work. He has had no other earnings and submits these earnings were not a replacement for his full-time role, but from a secondary role he maintained through his period of employment. (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 [32] I have found the anticipated period of employment would have ended on 19th of December 2025. There is no evidence presented of the Applicant’s earnings between the time of making the order and the actual compensation. Therefore, I consider this a neutral factor. Compensation – how is the amount calculated? [33] As noted by the Full Bench: “[t]he well established approach to the assessment of compensation under s.392 of the FW Act … is to apply the ‘Sprigg formula’ derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul’s Licenced Festival Supermarket (Sprigg). This approach was articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages”.5 [34] The approach in Sprigg is as follows: Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost). Step 2: Deduct monies earned since termination. Workers’ compensation payments are deducted but not social security payments. The failure of an Applicant to mitigate his or her loss may lead to a reduction in the amount of compensation ordered. Step 3: Discount the remaining amount for contingencies. Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment. Step 1 [35] I have estimated that Mr Donaldson would have remained employed until 19th of December 2025. [36] The remuneration Mr Donaldson would have received, or have been likely to have received, from his dismissal on 31st of October to 19th of December 2025 equals an amount of $8,960,00 gross, plus superannuation contributions. [2026] FWC 1506 8 Step 2 [37] Only monies earned since termination for the anticipated period of employment are to be deducted.6 Mr Donaldson has earnt, on average, a gross weekly wage of $473.00 since the time of his dismissal. These earnings amount to a total sum of $3,311.00 for the 7-week period of anticipated employment. Mr Donaldson was also paid a further $3,840.00 in lieu of notice on termination. The amount I have estimated he would have earnt of $8,960.00 less these amounts is the sum of $8,960.00 – $3,311.00 – $3,840.00 = $1,809.00. Step 3 [38] I now need to consider the impact of contingencies on the amounts likely to be earned by Mr Donaldson for the remainder of the anticipated period of employment.7 In the circumstance of this case, I have found the anticipated period of employment to be the 7-week period from 31st of October 2025. I can identify no contingencies that need to be taken into account with respect to this period. Step 4 [39] I have considered the impact of taxation but have elected to settle a gross amount of $1.809.00, plus superannuation. Compensation – is the amount to be reduced on amount of misconduct? [40] If I am satisfied that misconduct of the Applicant contributed to the employer’s decision to dismiss, I am obliged by s.392(3) of the Act to reduce the amount I would otherwise order by an appropriate amount on account of the misconduct. [41] In this case, I have not been satisfied that the conduct of Mr Donaldson amounts to a form of misconduct. Having not been satisfied of any misconduct, this factor is not relevant and no reduction is required. Compensation – how does the compensation cap apply? [42] Section 392(5) of the Act provides that the amount of compensation ordered by the Commission must not exceed the lesser of: (a) the amount worked out under s.392(6); and (b) half the amount of the high income threshold immediately before the dismissal. [43] Section 392(6) of the Act provides: The amount is the total of the following amounts: (a) The total remuneration: i. Received by the person; or ii. To which the person was entitled; [2026] FWC 1506 9 (whichever is the higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal. [44] The Applicant earnt an average weekly wage of $1,280.00. This calculation leaves a total a total compensation cap of $33,280.00 applying in accordance with s.392(6) of the Act. Is the level of compensation appropriate? [45] Having applied the formula in Sprigg, I am nevertheless required to ensure that “the level of compensation is an amount that is considered appropriate have regard to all the circumstances of the case”.8 [46] The application of the Sprigg formula has resulted in an outcome where Mr Donaldson would be awarded a gross compensation amount of $1,809.00, plus $217.08 in superannuation. [47] I have been satisfied that Mr Donaldson was unfairly dismissed from his work. Taking all the circumstances of the matter before me into account, I am satisfied the level of compensation is appropriate. The total amount of compensation I have determined payable to Mr Donaldson, therefore, is $1,809.00 gross, plus $217.08 in superannuation. [48] I am satisfied the amount of compensation that I have determined considers all the circumstances of the case as required by s.392(2) of the Act. Compensation Order [49] Given my findings above, an order [PR799112] will be issued requiring the Respondent to pay the Applicant in this matter the amount of $1,809.00 less taxation as required by law, plus superannuation of $217.08 to be paid into the Applicant’s nominated fund, with both payments to be made within 14 days of the date of this decision. COMMISSIONER Final written submissions: 4 March 2026 Printed by authority of the Commonwealth Government Printer <PR799111> [2026] FWC 1506 10 1 Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198 at [9]. 2 Vennix v Mayfield Childcare Ltd [2020] FWCFB 550 at [20]; Jeffery v IBM Australia Ltd [2015] FWCFB 4171 at [5]-[7]. 3 He v Lewin [2004] FCAFC 161 at [58]. 4 Ellawala v Australian Postal Corporation Print S5109 (AIRCFB Ross VP, Williams SDP, Gay C, 17 April 2000) at [34]. 5 [2013] FWCFB 431. 6 Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFC 7206 at [19]. 7 Enhance Systems Pty Ltd v Cox PR910779 (AIRCFB, Williams SDP, Action SDP, Gay C, 31 October 2001) at [39]. 8 Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFC 7206 at [17]-[19].