1 Fair Work Act 2009 s.394—Unfair dismissal Dylan Iddles v Tight Seal Pty Ltd (U2025/2773) DEPUTY PRESIDENT BOYCE SYDNEY, 17 NOVEMBER 2025 Application for an unfair dismissal remedy – applicant unfairly dismissed – reinstatement inappropriate – compensation an appropriate remedy – compensation ordered Introduction [1] Mr Dylan Iddles (Applicant) has filed a Form F2 application (Application) for an unfair dismissal remedy with the Fair Work Commission (Commission) alleging that he was unfairly dismissed (within the meaning of s.385 of the Fair Work Act 2009 (Act)) by his former employer, Tight Seal Pty Ltd (Respondent). [2] By way of its Form F3 Employer Response, the Respondent says that it did not dismiss the Applicant from its employment. Rather, the Respondent says that the Applicant was not its employee, but an independent contractor, and that it did not dismiss the Applicant. [3] On 1 October 2025 I conducted a hearing to resolve the Respondent’s objections to the Application proceeding. At the conclusion of that hearing, I issued orders dismissing both of the Respondent’s objections [PR792294, 2 October 2025]. In doing so, I found that the Applicant is a person protected from unfair dismissal by the Respondent. [4] On 13 November 2025, I conducted a hearing to determine whether or not the Applicant’s dismissal was unfair (i.e. harsh, unjust or unreasonable). At the end of that hearing, I issued a decision on transcript, finding in favour of the Applicant, and determining that his dismissal by the Respondent was unfair. In making this determination, I also found that: a) reinstatement of the Applicant to the Respondent’s employ would be inappropriate; and b) that an order for compensation (payable by the Respondent, to the Applicant) is appropriate in all of the circumstances of this case. [5] This decision is limited to determining the amount of compensation to be awarded to the Applicant. Compensation – what must be taken into account in determining an amount? [2025] FWC 3429 DECISION [2025] FWC 3429 2 [6] Section 392(2) of the Act requires all of 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 Respondent’s enterprise; (b) the length of the Applicant’s service; (c) the remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed; (d) the efforts of the Applicant (if any) to mitigate the loss suffered by the Applicant because of the dismissal; (e) the amount of any remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for compensation; (f) the amount of any income reasonably likely to be so earned by the Applicant during the period between the making of the order for compensation and the actual compensation; and (g) any other matter that the Commission considers relevant. [7] I consider all the circumstances of the case below. Effect of the order on the viability of the Respondent’s enterprise (s.392(2)(a)) [8] Business viability refers to a business's capacity to sustain its operations and generate profits over the medium to longer term.1 Assessments as to viability are not limited to the financial health of a business, but extend to (for example) industry and enterprise specific issues, business structures, available work, economic conditions, and profits. [9] An employer carries the onus to bring relevant evidence as to the impact (or likely impact) that an order for compensation will have upon the viability of its business.2 [10] The Respondent made no specific submissions on this criterion, and brought no specific evidence as to its current financial position as at 13 November 2025. I treat s.392(2)(a) as a neutral consideration in this case. Length of the Applicant’s service (s.392(2)(b)) [11] The Applicant, at the time of his dismissal, was employed by the Respondent for a period of around 10 years. I consider that the Applicant’s not insignificant length of service is such that it does not favour any downward adjustment or reduction to any compensation amount awarded. [2025] FWC 3429 3 Remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed (s.392(2)(c)) [12] As stated by a majority of the Full Court of the Federal Court, “in determining the remuneration 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 had 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 to the likelihood of a further termination, in order to be able to assess the amount of remuneration the employee would have received, or would have been likely to receive, if there had not been the actual termination.”3 [13] I accept that the Applicant had formed no intention to leave the Respondent’s employ, and had made no plans to deal with his employment ending so abruptly after nearly ten years of service. [14] There is no evidence of any genuine performance or conduct issues involving the Applicant in respect of his work for the Respondent, i.e. that would suggest that his employment was potentially at risk but for his unfair dismissal. [15] I conclude that the Applicant’s employment, but for his unfair dismissal by the Respondent, would have continued on with the Respondent for at least a further six months. In the facts and circumstances of this case, there is no logical basis to conclude that the Applicant would not have remained employed by the Respondent, but for his unfair dismissal, for less than six months. [16] Turning to the remuneration that the Applicant would have earned (or received) had his employment continued for a further six months, both parties agree that the Applicant was entitled to an above award hourly rate of $47 per hour, and that he worked 40 hours per week. Superannuation was paid on this amount. His weekly gross (i.e. before tax) wage was thus $1,880 per week, plus 11.5 percent superannuation on this amount. [17] Multiplying the Applicant’s weekly rate of $1,880 per week by 26 weeks (6 months) comes to a gross figure of $48,880. Having regard to the above, if the Applicant remained in the Respondent’s employ for a further six months, I find that he would have received $48,880, plus 11.5 percent superannuation on that amount. Efforts of the Applicant to mitigate the loss suffered because of the dismissal (s.392(2)(d)) [18] An applicant must provide evidence that he or she has taken reasonable steps to minimise the impact of his or her dismissal.4 What is reasonable depends on the circumstances of the case.5 [19] I am not satisfied on the evidence that the Applicant has made reasonable efforts to mitigate his loss post his dismissal. Indeed, he has made no efforts to find alternative employment since his dismissal. In all of the circumstances, an adjustment to the compensation payable to the Applicant of 25 percent is appropriate. This leaves a figure of $36,660 (i.e. $48,880 – 25% ($12,220) = $36,660). Income earned by the Applicant following his dismissal (s.392(2)(e)) [2025] FWC 3429 4 [20] The Applicant did not receive payment in lieu of notice upon his dismissal, and has had no other paid work since his dismissal. Consequently, I apply no discount to the proposed amount of compensation under this criterion. Amount of income reasonably likely to be so earned by the Applicant during the period between the making of the order for compensation and the actual compensation (s.392(2)(f)) [21] There is no evidence before me that the Applicant is likely or ‘reasonably likely’ to earn income between the making of an order for compensation, and the payment of that compensation. Consequently, I make no deduction in respect of likely earnings in the period. In short, I do not consider it appropriate for prospective earnings to reduce the amount of compensation to be awarded to the Applicant in this case. Any other relevant matter (s.392(2)(g)) [22] No other relevant matters were raised by the Applicant or the Respondent going to an order for compensation, nor am I aware of any. Misconduct (s.392(3)) [23] In determining the amount by which it is appropriate to reduce an order for compensation on account of misconduct, the Commission must consider, amongst other things, whether the Applicant engaged in misconduct and, if so, whether that misconduct contributed to the Respondent’s decision to dismiss the person. A Full Bench of this Commission has observed that, “[t]he section seems to require such consideration even if the FWC has found there was no valid reason for the person’s dismissal.”6 However, the Full Bench goes on to say that, “if there was no valid reason for the dismissal we think that may be relevant to the FWC’s decision as to the ‘appropriate’ amount by which to reduce the amount of compensation the FWC would otherwise order.”7 [24] I have found that the Applicant’s dismissal was not for a valid reason. There is no evidence to suggest that there was misconduct on the part of the Applicant during his employment with the Respondent (leading to his dismissal, or otherwise). I do not reduce the amount of compensation to be awarded to the Applicant on the basis of misconduct. Instalments (s.393) [25] The Respondent has not applied for instalment payments. Shock, Distress (s.392(4)) [26] I note that the amount of compensation calculated does not include a component for shock, humiliation or distress. Compensation – how is the amount to be calculated? [2025] FWC 3429 5 [27] 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 Licensed Festival Supermarket (Sprigg).8 This approach was articulated in the context of the Act in Bowden v Ottrey Homes Cobram and District Retirement Villages.”9 [28] The approach in Sprigg is as follows: Step 1: Estimate the remuneration the Applicant would have received, or have been likely to have received, if the Respondent employer had not terminated the employment (remuneration lost). Step 2: Deduct monies earned since termination. 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. Sprigg - Step 1 [29] I have estimated the remuneration the Applicant would have received, or would have been likely to have received, if the Respondent had not terminated his employment to be $36,660 (including a 25% reduction for misconduct) on the basis of my finding that it is likely the Applicant would have remained in employment for a further period of six months. This estimate of how long the Applicant would have remained in employment is the “anticipated period of employment”.10 Sprigg - Step 2 [30] I have found that the Applicant has not earned any remuneration since the date of his dismissal, and that he is unlikely to earn any remuneration between the making of the order for compensation and the payment of compensation. [31] Only monies earned since termination for the anticipated period of employment are to be deducted. Consequently, no deductions are to be made for earnings. I have also found that the Applicant has taken reasonable steps to mitigate his losses, and consequently no deduction is to be made in this regard. Sprigg - Step 3 [32] I now need to consider the impact of contingencies on the amounts likely to be earned by the Applicant for the remainder of the anticipated period of employment.11 [33] I consider it appropriate to deduct ten percent from the sum of $36,660 on the basis of contingencies. This leaves a figure of $32,994 (i.e. $36,660 – 10 percent ($3,666) = $32,994). Sprigg - Step 4 [2025] FWC 3429 6 [34] I have considered the impact of taxation but have elected to settle on a gross amount of $32,994, which is to be subject to normal taxation law requirements and deductions. Compensation and all the circumstances of the case [35] Having applied the formula in Sprigg, I am nevertheless required to ensure that “the level of compensation is an amount that is considered appropriate having regard to all the circumstances of the case.”12 [36] I am satisfied that the amount of compensation that I have determined above takes into account all the circumstances of the case, including as required by s.392(2) of the Act, and that the amount of $32,994 (plus superannuation at the rate of 11.5% on that amount) is appropriate in this case. Compensation – how does the compensation cap apply? [37] 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 section 392(6); and b. half the amount of the high income threshold immediately before the dismissal. [38] The amount worked out under section 392(6) is the total of the following amounts: (a) the total amount of the remuneration: (i) received by the Applicant; or (ii) to which the Applicant was entitled; (whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and (b) if the Applicant was on leave without pay or without full pay while so employed during any part of that period – the amount of remuneration taken to have been received by the Applicant for the period of leave is in accordance with the regulations. [39] The gross amount of $32,994 is less than the compensation cap. No further adjustment of the amount is necessary. Conclusion [40] I am satisfied that the amount of compensation that I have determined to be awarded to the Applicant (being the figure of $32,994 (plus 11.5 percent superannuation on that amount)), in the facts and circumstances of this case, does not yield an amount that is clearly excessive or clearly inadequate. [2025] FWC 3429 7 [41] I am equally satisfied that my finding as to the Applicant’s dismissal being unfair, and the amount of compensation to be awarded to the Applicant, ensures that a fair go all round has been afforded to both the Applicant and the Respondent in this case.13 [42] The Respondent is to pay the Applicant the amount of $32,994 (less applicable taxation as required by law), plus 11.5 percent superannuation on that amount ($3,794.31), within 21 days. An order to this effect will be issued separately to this decision. DEPUTY PRESIDENT The Applicant (Mr Dylan Iddles) appeared for himself. Ms Zeinab Tawbe, Lawyer, One Group Legal, appeared (with permission) for the Respondent (Tight Seal Pty Ltd). Printed by authority of the Commonwealth Government Printer <PR793782> 1 See definition of “commercial viability’ from Cambridge Online English Dictionary, and “viability” from the Merrian-Webster online dictionary. 2 Moore v Highpace Pty Ltd (18 May 1998, AIRC, Bolton J, Watson SDP and Whelan C, Print Q0871). 3 He v Lewin [2004] FCAFC 161, at [58]. 4 Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), at [34] citing Lockwood Security Products Pty Ltd v Sulocki and Ors PR908053 (AIRCFB, Giudice J, Lacy SDP, Blair C, 23 August 2001), at [45]. 5 Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), at [34] citing Payzu Ltd v Saunders [1919] 2 KB 581. 6 Read v Gordon Square Child Care Centre Inc [2013] FWCFB 762, at [83]. 7 Ibid. 8 (1998) 88 IR 21. 9 [2013] FWCFB 431; Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206, at [16]. 10 Ellawala v Australian Postal Corporation Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000), at [34]. 11 Enhance Systems Pty Ltd v Cox PR910779 (AIRCFB, Williams SDP, Acton SDP, Gay C, 31 October 2001), at [39]. 12 Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206, at [17]. 13 Section 381(2) of the Fair Work Act 2009.