Unfair Dismissal in a Small Hospitality Business: When an Employer Skips the Process and Fails to Prove Misconduct, How Does the Fair Work Commission Determine Unfairness and Compensation?

Based on the authentic Australian judicial case [2025] FWC 1995 (U2025/2787), this article disassembles the Court’s judgment process regarding evidence and law. It transforms complex judicial reasoning into clear, understandable key point analyses, helping readers identify the core of the dispute, understand the judgment logic, make more rational litigation choices, and providing case resources for practical research to readers of all backgrounds.

Chapter 1: Case Overview and Core Disputes

Basic Information

Court of Hearing: Fair Work Commission
Presiding Judge: Commissioner
Cause of Action: Application for unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth)
Judgment Date: 11 July 2025
Core Keywords:
Keyword 1: Authentic Judgment Case
Keyword 2: Unfair dismissal
Keyword 3: Small Business Fair Dismissal Code
Keyword 4: Ex parte hearing
Keyword 5: Procedural fairness
Keyword 6: Compensation assessment

Background

This case concerns a dismissal in a small hospitality workplace where the Applicant said he was told, at the end of a shift, not to return to work. The Applicant alleged the dismissal happened abruptly, without a prior warning, without a meeting, and without written reasons. The Respondent asserted a different narrative in its initial paperwork, including allegations of serious workplace misconduct and reliance on the Small Business Fair Dismissal Code. A central feature of the case is that, after lodging an objection and then confirming receipt of directions, the Respondent ultimately did not participate in the final hearing, leaving the Commission to decide the matter on the Applicant’s evidence alone.

Core Disputes and Claims

The legal focus of the dispute was whether the termination of the Applicant’s employment was harsh, unjust or unreasonable within the meaning of s 387 of the Fair Work Act 2009 (Cth), including whether the Respondent had a valid reason connected to capacity or conduct and whether basic procedural steps were taken.

The Applicant sought an unfair dismissal remedy. The Respondent’s position, as foreshadowed in its jurisdictional objection, was that the dismissal complied with the Small Business Fair Dismissal Code and that the Applicant’s conduct justified termination.

---

Chapter 2: Origin of the Case

The relationship began as a long-running employment arrangement in a restaurant setting. The Applicant said he commenced work years earlier and continued through changes in ownership and business details. From the Applicant’s perspective, the day-to-day reality did not materially change even after the business was sold to the Respondent: the same workplace, similar duties, consistent hours, and pay deposited in a regular pattern.

The conflict, however, did not arise in a vacuum. According to the Applicant, a key turning point arrived when he received an Australian Taxation Office letter about discrepancies in wage reporting. That letter triggered him to review his records and compare what he believed he should have been paid under minimum wage settings against what he said he actually received. He then raised concerns verbally with the Respondent about underpayment.

In ordinary workplaces, a pay dispute can be handled through payroll checks, structured discussions, and written clarification. In this workplace, the Applicant’s evidence was that matters escalated quickly. He said that, within days, the working relationship deteriorated to the point that, after finishing a shift, he was told not to come back. That is the decisive moment in the narrative: the legal relationship ended not through a documented process, but by a blunt instruction delivered at the workplace.

A further foreshadowing event followed soon after. The Applicant said he returned to request a termination letter, notice payments, and a separation certificate, only to find a replacement had already been hired, and the Respondent refused to provide the requested documentation and payments. This sequence mattered because it shaped the Commission’s assessment of procedural fairness and whether the dismissal appeared connected to the Applicant raising a workplace concern.

---

Chapter 3: Key Evidence and Core Disputes

Applicant’s Main Evidence and Arguments

1. Employment continuity materials: The Applicant relied on records such as payslips and bank statements to support continuity of employment, hours, and payments over time.
2. ATO discrepancy letter: The Applicant described receiving a letter indicating wage reporting discrepancies, which prompted him to check pay records.
3. Underpayment calculation narrative: The Applicant gave evidence about his standard hours and his understanding of minimum wage rates during a specific period, and the resulting shortfall he believed existed.
4. Verbal complaint evidence: The Applicant said he raised the underpayment concern verbally with the Respondent on the same day he reviewed the ATO issue.
5. Dismissal account: The Applicant’s central evidence was that, on a specific date after finishing work, he was told not to come back, without a warning, notice, or written reasons.
6. Post-dismissal interaction: The Applicant described returning shortly after, requesting a termination notice, separation certificate, and notice payments, and being refused, while observing a replacement worker.

Respondent’s Main Evidence and Arguments

The Respondent did not provide evidence at hearing. Its position was only reflected in its earlier filed form, which included:
1. A different commencement date contention, implying shorter service.
2. Misconduct allegations including verbal abuse of employees, going on strike during work hours, and theft of ingredients.
3. Reliance on the Small Business Fair Dismissal Code as a jurisdictional defence.

Core Dispute Points

1. Valid reason: Whether there was a proven reason related to capacity or conduct to justify termination.
2. Procedural fairness: Whether the Applicant was notified of reasons, given an opportunity to respond, and warned if performance was an issue.
3. Small business code compliance: Whether the Respondent established that it complied with the Small Business Fair Dismissal Code.
4. Motive inference: Whether the timing suggested the dismissal was connected to the Applicant raising underpayment concerns.
5. Remedy: If unfair dismissal was found, what compensation should be ordered, applying the statutory criteria.

---

Chapter 4: Statements in Affidavits

In this matter, the Commission was dealing with an evidentiary situation where the Applicant put forward a detailed written statement and then adopted it in oral evidence, while the Respondent did not file substantive hearing materials and did not attend to test the Applicant’s account.

The Applicant’s statement functioned as a structured narrative: it connected the ATO discrepancy letter, the underpayment concerns, the verbal raising of those concerns, and the abrupt dismissal. The persuasive technique was chronological causation. Each event was presented as leading naturally to the next, culminating in the termination and the alleged refusal to provide post-termination documents and payments.

By contrast, the Respondent’s position, as reflected in its initial form, used an allegation-based approach: it asserted misconduct categories that, if proven, might be capable of constituting a valid reason. However, without sworn evidence, without documentary particulars, and without participation in cross-examination, those allegations did not mature into probative material.

Strategically, procedural directions about statements and submissions are designed to crystallise the issues and ensure each party knows the case to meet. Here, the Respondent’s failure to comply with directions and its failure to appear meant the Commission had limited options: it either adjourned repeatedly or proceeded ex parte where fairness permitted. The Commission took the view that the Respondent knew about the hearing and chose not to engage, so it proceeded to determine the application on the evidence available.

---

Chapter 5: Court Orders

Before the final hearing, the Commission made procedural arrangements typical in unfair dismissal matters, including:
1. Listing the matter for a directions hearing.
2. Issuing directions for the filing of submissions and materials.
3. Following up missing material and confirming service details.
4. Confirming the hearing would proceed even if a party failed to participate.
5. Preparing and distributing a digital court book for efficient conduct of the hearing.
6. Arranging an interpreter for the hearing to ensure evidence could be properly given and understood.

---

Chapter 6: Hearing Scene: Ultimate Showdown of Evidence and Logic

Process Reconstruction: Live Restoration

The hearing proceeded with the Applicant appearing on his own behalf. The Respondent did not attend. That absence shaped the hearing dynamic: the Applicant’s account was not challenged by cross-examination, and the Commission’s task became one of assessing credibility and internal coherence, rather than choosing between two competing live narratives.

In practical terms, when there is no cross-examination, “the showdown” occurs in a different form. It occurs between:
1. The Applicant’s oral adoption of his written statement;
2. The documentary materials he produced; and
3. The Respondent’s earlier allegations, which remain untested assertions without evidentiary support.

The Commission’s method was to identify what it could safely accept on the evidence before it. It did not invent a version for the absent Respondent. It assessed the Applicant’s evidence as the only evidentiary account and asked whether that evidence met the statutory questions under s 387.

Core Evidence Confrontation: The Decisive Points

The most decisive confrontation in this case involved the gap between allegation and proof.

On one side, the Respondent alleged misconduct categories that, if proven with particulars and tested evidence, might justify termination. On the other, the Applicant’s account was simple and specific: he raised a pay concern, and shortly afterwards he was told not to return, with no process.

The Commission had to decide whether there was a valid reason and whether the Applicant was notified and given an opportunity to respond. In the absence of Respondent evidence, the misconduct allegations did not produce an evidentiary chain. The Applicant’s account did.

Judicial Reasoning: How Facts Drove the Result

A key determinative statement concerned the Commission’s acceptance of the Applicant’s account and its conclusion on valid reason:

“The Applicant adopted his evidence at the Hearing, and it is the only evidence before me. I accept that evidence… Based on the evidence, the Respondent did not have a valid reason for termination.”

This statement mattered because it resolved the first and most influential factor under s 387: valid reason. The Commission did not treat the Respondent’s earlier allegations as evidence. It treated the hearing evidence as decisive. Once valid reason was not established, and procedural fairness deficiencies were also found, the pathway to unfairness became logically direct.

A second determinative statement concerned the inference drawn from timing:

“This leads to a clear inference that his dismissal was related to his having raised the issue of alleged underpayment.”

This mattered because it fed into the “any other matters” discretion under s 387(h). It did not convert the matter into a general protections case, and it did not purport to decide an underpayment dispute. But it did supply a contextual reason why the dismissal appeared particularly harsh or unjust in the circumstances.

---

Chapter 7: Final Judgment of the Court

The Commission determined that the jurisdictional objection based on the Small Business Fair Dismissal Code was not made out on the evidence available, and the Commission proceeded to determine unfairness under s 387.

The Commission found the dismissal was harsh, unjust and unreasonable and therefore unfair. The Commission declined reinstatement on practicality and appropriateness grounds and instead ordered compensation.

The Commission issued an order that the Respondent pay compensation of AUD $7,953 gross, taxed according to law, and pay 11.5 per cent superannuation contributions on that amount into the Applicant’s nominated superannuation fund, within 14 days of the decision.

The Commission also noted that any underpayment or minimum entitlement dispute was not determined in this proceeding and would need to be pursued in a different jurisdiction if the Applicant wished to do so.

---

Chapter 8: In-depth Analysis of the Judgment: How Law and Evidence Lay the Foundation for Victory

Special Analysis

This decision has jurisprudential value for one deceptively simple reason: it demonstrates how, in unfair dismissal litigation, procedure and proof are not optional extras. A party can raise defences and allegations early, but if it does not participate, does not file materials as directed, and does not attend to test evidence, the Commission will decide the case on what is actually proven. In small business settings, there is sometimes an assumption that informality is acceptable. This case shows that small business context can explain imperfect process, but it does not replace the core minimum requirements: a valid reason, notification, and an opportunity to respond.

It is also notable for its treatment of the Small Business Fair Dismissal Code. The Code is not a magic shield. It must be substantiated. An employer who asserts compliance but does not lead evidence is exposed to the ordinary s 387 analysis, where procedural unfairness can be determinative.

Judgment Points

1. The Commission treated attendance and participation as litigation choices with consequences. Once satisfied the Respondent knew about the hearing, the Commission proceeded ex parte rather than allowing non-participation to stall the administration of justice.
2. The Commission confined itself to the statutory unfair dismissal framework and did not exceed jurisdiction by deciding underpayment entitlements within the unfair dismissal remedy.
3. The Commission applied s 387 in a structured way, addressing valid reason, notification, opportunity to respond, support person considerations, and contextual factors.
4. The Commission’s inference about the underpayment complaint demonstrates how timing and workplace context can be relevant under s 387(h) without transforming the case into a different cause of action.
5. The compensation reasoning shows disciplined application of statutory criteria and the established approach in Sprigg v Paul’s Licensed Festival Supermarket.

Legal Basis

The Commission’s analysis was anchored in:
1. Fair Work Act 2009 (Cth) s 394, establishing the unfair dismissal remedy application pathway.
2. Fair Work Act 2009 (Cth) s 387, setting the criteria for whether a dismissal is harsh, unjust or unreasonable, including valid reason, notification, and opportunity to respond.
3. Fair Work Act 2009 (Cth) s 392, governing compensation where reinstatement is not ordered, including the factors and the compensation cap.
4. The Small Business Fair Dismissal Code framework, raised as a jurisdictional objection, which required evidentiary substantiation by the employer.
5. Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21, applied as part of the compensation assessment methodology.

Evidence Chain

The decision’s logic can be expressed as a chain, each link strengthening the next:

1. Only one party led hearing evidence: the Applicant’s witness statement and oral adoption were unchallenged by cross-examination.
2. The Applicant’s evidence described dismissal without warning, without written notice, and without a meeting.
3. The Respondent’s allegations of misconduct remained unproven because no evidentiary material was led at hearing and the Respondent did not attend.
4. The statutory criteria under s 387 placed heavy weight on valid reason, notification, and opportunity to respond, each of which failed on the evidence accepted.
5. The timing between the Applicant raising underpayment concerns and the dismissal supported a contextual inference relevant to harshness and unjustness.
6. Reinstatement was not pursued and was not practical, so the remedy turned to compensation under s 392.
7. Compensation was calculated by reference to likely continued employment over a further period, with no mitigation earnings and no deductions for viability due to absence of employer evidence.

Judicial Original Quotation

A first decisive quote addresses unfairness through valid reason and process:

“I have weighed each of the matters I am required to consider under s.387 of the Act. I am satisfied that the Respondent did not have a valid reason and the dismissal was also procedurally unfair. I have concluded that the dismissal was harsh, unjust and unreasonable and therefore unfair.”

This was determinative because it shows the Commission did not rely on a single defect; it weighed the statutory checklist and found both substantive and procedural failure. That combination is particularly powerful in unfair dismissal reasoning.

A second decisive quote addresses compensation outcome and orders:

“I have determined to issue an order that the Respondent pay to the Applicant $7,953 gross taxed according to law and 11.5% superannuation contributions on that amount into the Applicant’s nominated superannuation fund, within 14 days of the date of this decision.”

This was determinative because it reflects the culmination of s 392 reasoning into enforceable orders, including superannuation, demonstrating that remedy reasoning is not merely arithmetical but statutory and structured.

Analysis of the Losing Party’s Failure

1. Failure to convert allegations into evidence: The Respondent asserted misconduct, but did not file evidentiary material, did not attend the hearing, and therefore did not prove a valid reason connected to capacity or conduct.
2. Failure to meet minimum procedural steps: On the accepted evidence, the Applicant was not notified of a reason before dismissal and was not given an opportunity to respond, which are central considerations under s 387.
3. Failure to substantiate the small business code defence: Reliance on the Small Business Fair Dismissal Code required proof. Non-participation meant the Commission was not satisfied the Code was complied with.
4. Failure to contest the causal narrative: The Applicant’s evidence supported a chronology suggesting the dismissal followed the underpayment complaint; the Respondent did not challenge that sequence.
5. Failure to lead viability evidence: Under s 392, the effect of compensation on the viability of the business is relevant. Without evidence, the Commission made no deduction on that basis.
6. Litigation strategy failure: Initial engagement followed by silence and non-attendance undermined the Respondent’s position across jurisdiction, liability, and remedy.

Key to Victory

The successful party’s most critical strengths were not rhetorical. They were evidentiary and structural:

1. A coherent timeline supported by records: The Applicant anchored the story in dated events, payments, and an external trigger.
2. A simple, specific dismissal account: The alleged termination event was described in concrete terms: told not to return after a shift, no warnings, no process.
3. Consistency with statutory questions: The evidence was framed, directly or indirectly, around the s 387 criteria: valid reason, notification, response opportunity, warnings, and fairness.
4. Mitigation evidence: The Applicant gave evidence of seeking other work and of having no income since dismissal, reducing grounds for remedy deductions.
5. Remedy realism: The Applicant did not insist on reinstatement where the relationship had broken down, enabling the Commission to focus on compensation.

Disassembly of Judgment Basis: 8 Victory Points Using the Five-Link Structure

Victory Point 1: Controlling the Evidentiary Field
Statutory Provisions: s 387 requires the Commission to weigh specific factors.
Evidence Chain: The Applicant provided the only hearing evidence; the Respondent provided none at hearing.
Judicial Original Quotation:

“It is the only evidence before me. I accept that evidence…”
Losing Party’s Failure: The Respondent’s non-participation left it unable to prove a valid reason or rebut the Applicant’s narrative.
Why it wins: In adversarial fact-finding, unchallenged coherent evidence often becomes the factual foundation for legal conclusions.

Victory Point 2: Valid Reason Cannot Be Alleged; It Must Be Proven
Statutory Provisions: s 387(a) requires consideration of whether there was a valid reason related to capacity or conduct.
Evidence Chain: Misconduct allegations existed in a form, but no evidence substantiated them; the Applicant’s account described no reason given before termination.
Judicial Original Quotation:

“Based on the evidence, the Respondent did not have a valid reason for termination.”
Losing Party’s Failure: The Respondent did not discharge the practical burden of establishing a defensible reason through evidence.
Why it wins: Valid reason is not a label. It is a conclusion supported by proven facts.

Victory Point 3: Notification and Response Opportunity Are Core Fairness Mechanics
Statutory Provisions: s 387(b) and (c) address notification of reason and opportunity to respond.
Evidence Chain: The Applicant said there was no warning and no formal meeting; the Respondent led no evidence of a meeting, warning, or notice of allegations.
Judicial Original Quotation:

“The Applicant was not given the reasons prior to being dismissed… [and] was not given an opportunity to respond…”
Losing Party’s Failure: The Respondent did not show it provided procedural steps that often prevent a dismissal being characterised as unjust.
Why it wins: Even where misconduct is suspected, procedural fairness can be the difference between a defensible dismissal and an unfair one.

Victory Point 4: Small Business Context Explains, But Does Not Excuse, Non-Compliance
Statutory Provisions: s 387(f) and (g) permit consideration of business size and absence of HR expertise.
Evidence Chain: The Respondent was said to have only a small number of employees.
Judicial Original Quotation:

“The Respondent… noted that it had only 3 employees.”
Losing Party’s Failure: Small size did not supply evidence of code compliance or fair process.
Why it wins: The law recognises practical constraints, but it does not remove the minimum architecture of fairness.

Victory Point 5: Timing and Context Can Strengthen the Harshness Finding
Statutory Provisions: s 387(h) allows consideration of other relevant matters.
Evidence Chain: The Applicant raised underpayment concerns and was dismissed shortly after; no alternative proven rationale existed.
Judicial Original Quotation:

“This leads to a clear inference that his dismissal was related to his having raised the issue of alleged underpayment.”
Losing Party’s Failure: The Respondent did not challenge the chronology or offer a proven alternative explanation.
Why it wins: Context can turn an already procedurally deficient dismissal into one that appears retaliatory and therefore particularly unjust.

Victory Point 6: Remedy Strategy Matters: Reinstatement Not Pursued, Compensation Focused
Statutory Provisions: s 392 provides compensation in lieu of reinstatement.
Evidence Chain: The Applicant did not seek reinstatement; the circumstances suggested it was impractical.
Judicial Original Quotation:

“The Applicant has not sought an order for reinstatement… I do not intend to make such an order.”
Losing Party’s Failure: The Respondent’s absence meant no evidence undermined the compensation pathway.
Why it wins: Remedy realism aligns the proceeding with outcomes the Commission can order confidently.

Victory Point 7: Compensation Is a Structured Statutory Exercise, Not a Sympathy Payment
Statutory Provisions: s 392(2) factors; s 392(4) excludes distress-type components; s 392(5) cap.
Evidence Chain: The Applicant’s weekly earnings, time since dismissal, lack of alternative income, and mitigation efforts were accepted.
Judicial Original Quotation:

“The amount… does not exceed the legislative cap.”
Losing Party’s Failure: No evidence was led on viability or mitigation to reduce the quantum.
Why it wins: The Commission applies a disciplined framework; parties who do not contest inputs often cannot contest outputs.

Victory Point 8: Viability Deductions Require Evidence
Statutory Provisions: s 392(2)(a) requires consideration of effect on the viability of the employer’s enterprise.
Evidence Chain: The Respondent provided no evidence about business viability impacts.
Judicial Original Quotation:

“As the Respondent did not bring any evidence… I make no deduction on that account.”
Losing Party’s Failure: Silence on viability removed a common deduction pathway.
Why it wins: A statutory factor cannot reduce compensation unless it is evidenced and persuasive.

Reference to Comparable Authorities

Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21: This authority is commonly used as a framework for assessing compensation in unfair dismissal matters, focusing on estimating likely future earnings but for the dismissal, then adjusting for contingencies, mitigation, and statutory caps.

Where relevant in submissions, practitioners often also compare decisions addressing procedural unfairness and the weight of s 387(b) and (c) in circumstances of abrupt termination without meeting, warning, or response opportunity, especially where an employer fails to participate and allegations remain unproven.

Comparable authority usage should be carefully tailored to the factual pattern: small business context, absence of evidentiary support for misconduct, and clear procedural omissions.

Implications

1. If you raise a workplace concern, keep records and timelines. It does not guarantee protection, but it tends to strengthen your ability to prove what happened and when.
2. In unfair dismissal disputes, the strongest story is usually the one supported by documents and consistent oral evidence, not the one spoken loudest.
3. Employers do not need perfect paperwork, but they do need a fair process: clear reasons, a chance to respond, and a rational basis grounded in evidence.
4. If you receive a sudden dismissal, focus first on what the law will ask: what was the reason, were you told, and did you have a chance to answer. Those questions tend to decide outcomes.
5. Litigation is not only about being right. It is also about showing up, following directions, and proving your case. Silence tends to surrender the field.

Q&A Session

Q1: If an employer alleges misconduct in a form, is that enough to prove a valid reason?
A1: Allegations alone tend to carry limited weight unless they are supported by evidence, particulars, and tested through hearing processes. A valid reason finding is typically grounded in proven facts, not mere assertions.

Q2: Does the Fair Work Commission decide underpayment claims in an unfair dismissal remedy application?
A2: The unfair dismissal jurisdiction focuses on whether the dismissal was harsh, unjust or unreasonable and on remedies such as reinstatement or compensation. Underpayment disputes often need to be pursued in a different jurisdiction or through different legal pathways.

Q3: What is the practical consequence if an employer does not attend the hearing?
A3: The Commission may proceed in the employer’s absence if satisfied the employer is aware of the hearing. The outcome may then be determined on the evidence led by the attending party, which can significantly affect both liability and remedy.

---

Appendix: Reference for Comparable Case Judgments and Practical Guidelines

1. Practical Positioning of This Case

Case Subtype: Employment termination dispute in the hospitality sector involving alleged misconduct, procedural fairness, and compensation assessment under the Fair Work Act 2009 (Cth)
Judgment Nature Definition: Final judgment determining unfair dismissal and ordering compensation

2. Self-examination of Core Statutory Elements

③ Employment and Workplace Disputes: Industrial Relations Law

Core Test: Unfair Dismissal under the Fair Work Act 2009 (Cth)

Step 1: Coverage and threshold considerations
You must first consider whether the employee is protected from unfair dismissal under the Act, which tends to involve minimum employment period requirements, coverage by modern awards or enterprise agreements, and whether earnings exceed relevant thresholds. These issues can vary by workplace and role, so careful confirmation of coverage and service length is usually necessary.

Step 2: Identify the dismissal act and effective date
You must establish when the dismissal was communicated and when it took effect. This matters for time limits, calculations of loss, and factual chronology.

Step 3: Apply the s 387 criteria to harshness, unjustness, or unreasonableness
The Commission must take into account the matters set out in s 387, including:
(a) Whether there was a valid reason related to capacity or conduct, including effects on safety and welfare of other employees.
(b) Whether the person was notified of that reason.
(c) Whether the person was given an opportunity to respond to any reason related to capacity or conduct.
(d) Any unreasonable refusal by the employer to allow a support person to assist at discussions relating to dismissal.
(e) If dismissal related to unsatisfactory performance, whether the person had been warned about that unsatisfactory performance before dismissal.
(f) The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed.
(g) The degree to which the absence of dedicated HR management specialists or expertise would be likely to impact on the procedures followed.
(h) Any other matters the Commission considers relevant.

Practical evaluation guidance:
A dismissal tends to be more defensible when there is a clear reason based on proven facts, the reason is communicated, the employee is given a real chance to respond, and the process is proportionate to the workplace. Small business context may explain some informality, but it does not usually replace the need for basic fairness.

Step 4: Remedy selection and remedy criteria
If unfair dismissal is found, the usual remedies are reinstatement or compensation. Reinstatement is often considered first but may be impractical where trust and confidence are damaged or the workplace is too small for workable reintegration.

Step 5: Compensation assessment under s 392
When compensation is ordered, the Commission must take into account all circumstances, including:
(a) The effect of the order on the viability of the employer’s enterprise.
(b) The length of the person’s service.
(c) The remuneration the person would have received or would likely have received if not dismissed.
(d) Efforts to mitigate loss.
(e) Remuneration earned between dismissal and order.
(f) Income likely to be earned between order and payment.
(g) Any other relevant matters.

Important constraints:
Compensation must not include amounts for shock, distress, humiliation, or analogous hurt.
Compensation must not exceed the statutory cap, which is the lesser of the specified cap calculation and half the high income threshold immediately before dismissal.

Core Test: General Protections

Step 1: Identify adverse action
You must identify whether the employer took adverse action such as dismissal, injury in employment, alteration of position to the employee’s prejudice, or discrimination between employees.

Step 2: Identify a workplace right or protected attribute
You must consider whether the employee exercised, proposed to exercise, or had a workplace right such as making a complaint or inquiry about employment, or whether protected industrial activity is involved.

Step 3: Causal link assessment
A central question is whether the adverse action was taken because of the workplace right or protected activity. The reverse onus framework in general protections matters can significantly shape strategy and evidence.

Step 4: Remedy considerations
General protections remedies can differ from unfair dismissal and may include different forms of compensation and civil penalties, depending on the pathway and forum.

Core Test: Sham Contracting

Step 1: Identify the true nature of the working relationship
You must evaluate whether the worker is, in substance, an employee or an independent contractor, considering control, financial risk, ability to delegate, provision of tools, and integration into the business.

Step 2: Assess representations and arrangements
You must consider whether the arrangement was structured to avoid employment obligations and whether conduct tends to show a mischaracterisation.

Step 3: Consequences and remedies
If sham contracting is established, remedies can involve compensation, penalties, and corrective orders, depending on jurisdiction and claim framing.

---

3. Equitable Remedies and Alternative Claims

Even where an unfair dismissal claim succeeds, parties often discover that the real practical dispute includes unpaid wages, unpaid superannuation, or other entitlements. Where statutory avenues are exhausted or unsuitable, alternative pathways may be considered, depending on facts and forum.

Procedural Fairness

Did the decision-maker afford natural justice?
In employment-related disputes, procedural fairness usually means an opportunity to be heard, clear notice of allegations, and a decision not affected by bias. In some contexts, procedural fairness is an organising idea rather than a separate cause of action, but it is central to how tribunals evaluate fairness.

How it can function as a counter-attack pathway
If an unfair dismissal claim faces barriers, a party may consider whether decision-making involved jurisdictional error in administrative settings, or whether a different statutory scheme provides a review avenue. In workplace settings, general protections may be considered where there is evidence suggesting retaliation for workplace rights.

Ancillary Claims

Underpayment claims
Where evidence suggests unpaid minimum rates, unpaid overtime, unpaid leave entitlements, or unpaid superannuation, the appropriate forum might differ from the unfair dismissal jurisdiction. Parties may need to consider Fair Work Ombudsman pathways, court proceedings, or other statutory mechanisms depending on the entitlement and evidence available.

Record-keeping failures
Where payslips, rosters, time sheets, or superannuation records are missing or inconsistent, evidentiary inferences can become important. A party alleging entitlements should still attempt to gather bank statements, messages about shifts, and any documents showing hours and rates, because these materials tend to strengthen credibility and quantification.

---

4. Access Thresholds and Exceptional Circumstances

Regular Thresholds

Time limit for unfair dismissal application
An unfair dismissal application generally must be lodged within 21 days after the dismissal took effect. Extensions can be available in limited circumstances, but they tend to require a convincing explanation.

Minimum employment period
Small business and non-small business employers can have different minimum employment periods for protection from unfair dismissal. Careful confirmation of business size, service length, and continuity is important, especially where there are changes in business ownership.

Small Business Fair Dismissal Code
Where the employer is a small business employer, reliance on the Code tends to require evidence of compliance. Assertions without substantiation tend to be risky.

Exceptional Channels

Out-of-time applications
Where a filing deadline is missed, an extension may be possible depending on explanation, length of delay, and prejudice. The risk can be relatively high if the delay is substantial and the explanation is weak.

Service continuity issues
Where there are changes in business ownership, employees may have continuity arguments depending on the nature of the transfer and the reality of work continuity. Outcomes can be fact-dependent and tend to turn on evidence.

Suggestion
Do not abandon a potential claim simply because an initial threshold appears uncertain. Carefully compare your circumstances against statutory exceptions and factual continuity indicators, because these can be decisive in establishing access to a remedy.

---

5. Guidelines for Judicial and Legal Citation

Citation Angle
It is recommended to cite this case in submissions involving:
1. Unfair dismissal findings where an employer fails to attend and misconduct allegations remain unproven.
2. Cases where procedural omissions under s 387(b) and (c) are central.
3. Compensation reasoning where viability deductions are sought without evidence.
4. Reliance on the Small Business Fair Dismissal Code without evidentiary support.

Citation Method
As positive support: Where your matter involves an abrupt termination without warning, without notification of allegations, and without opportunity to respond, this authority can strengthen an argument that dismissal tends to be characterised as harsh, unjust or unreasonable when a valid reason is not proven and process is absent.

As a distinguishing reference: If the opposing party cites this case, you should emphasise factual differences such as documented warnings, proven misconduct evidence, attendance at hearing, and demonstrated Code compliance, to argue the precedent is not applicable.

Anonymisation Rule
Do not use real names of parties; strictly use procedural titles such as Applicant and Respondent.

---

Conclusion

This case distils a practical truth: in unfair dismissal litigation, outcomes are built from proven facts, fair process, and disciplined statutory reasoning, not from untested allegations.

Golden Sentence: Everyone needs to understand the law and see the world through the lens of law. The in-depth analysis of this authentic judgment is intended to help everyone gradually establish a new legal mindset: True self-protection stems from the early understanding and mastery of legal rules.

---

Disclaimer

This article is based on the study and analysis of the public judgment of the Fair Work Commission ([2025] FWC 1995), aimed at promoting legal research and public understanding. The citation of relevant judgment content is limited to the scope of fair dealing for the purposes of legal research, comment, and information sharing.

The analysis, structural arrangement, and expression of views contained in this article are the original content of the author, and the copyright belongs to the author and this platform. This article does not constitute legal advice, nor should it be regarded as legal advice for any specific situation.

---

Original Case File:

👉 Can’t see the full document?
Click here to download the original judgment document.