The initial FWC decision found the employee had been unfairly dismissed for serious misconduct, and the substantial payment was awarded as compensation in lieu of reinstatement. The business appealed both the decision and the compensation amount, however the Full Bench found that public interest would only be served in allowing the appeal of the compensation order.

In the business’ application for permission to appeal, it highlighted the applicant had continued to receive income of workers’ compensation for an injury sustained in the workplace. While this was factored into the initial compensation amount, it was not considered when determining what the ‘applicant would have received, or would have been likely to receive, if the person had not been dismissed’. The Full Bench found the Commissioner should have taken into consideration the fact the applicant would have still been on workers’ compensation benefits following the re-injury when awarding compensation.

When recalculating the compensation order, the Full Bench considered the relevant Return to Work Act as it related to assessing the applicant’s ‘future income-earning prospects’. It was considered to be of ‘critical importance’ that the employer had an obligation to provide suitable employment, even if the employee was dismissed after the start of their incapacity. The calculation of the starting point for the Applicant’s compensation took into consideration both the length of expected employment had the Applicant not been terminated, and the continuing workers’ compensation payments.

The Full Bench did not permit an appeal against the Commissioner’s unfair dismissal. The final payment of compensation was calculated on the basis of the five weeks’ pay in lieu of notice the Applicant was denied when terminated for serious misconduct. The Full Bench found the Applicant should been compensated for this loss and as such, made a final order of compensation of $9,100.

Attend our Advocacy and Representation skills in the Fair Work Commission on 9 March 2017 to gain a more thorough understanding of commission processes and develop your advocacy and representation skills to help you put your best foot forward when defending claims.