UNFAIR DISMISSAL APPLICATION

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2026 WAIRC 00078

DELIVERED : Wednesday, 11 February 2026

FILE NO. : U 51 OF 2024

Applicant

AND

Jacquelyn Danao

Respondent

CatchWords : Industrial Law (WA) - Whether dismissal was harsh, oppressive, or unfair - Dismissal found to be unfair - Remedy - Reinstatement impracticable - Compensation for loss and injury considered - Compensation for loss awarded - Whether dismissal caused further emotional and physical distress - Circumstances of applicant considered - Dismissal caused significant emotional distress - Compensation for injury awarded - Order issued

Legislation : Industrial Relations Act 1979 (WA)

  Minimium Conditions of Employment Act 1993 (WA)

Result : Order Issued

Representation:

Applicant : Ms M Brown (of counsel)

Respondent : No Appearance

Case(s) referred to in reasons:

Anthony & Sons Pty Ltd T/A Oceanic Cruises v Fowler [2005] WAIRC 01744; (2005) 85 WAIG 1899

AWI Administration Services Pty Ltd v Birnie (2001) 81 WAIG 2849

Bogunovich v Bayside Western Australia Pty Ltd [No 2] (1998) 79 WAIG 8

Mr Alan Scicluna v Mr William Paul Brooks T/AS Bayview Motel Esperance, WA [2016] WAIRC 00862; (2016) 96 WAIG 1475

Further Reasons for Decision

1         On 25 September 2025, the Commission issued Reasons for Decision ([2025] WAIRC 00805), in which I found that Ms Kaitlin Larney (applicant) was unfairly dismissed by Ms Jacquelyn Danao (respondent). These reasons supplement the finding of an unfair dismissal handed down on 25 September 2025.

2         At the initial Hearing on 15 January 2025, the respondent did not give any evidence, nor make any submissions about the orders the Commission ought to make in the event the applicant’s dismissal was found to be unfair. Given this, and the finding of an unfair dismissal in [2025] WAIRC 00805, the Commission scheduled a Hearing for 4 November 2025 to hear from the parties on the question of remedy. The respondent did not appear at the Hearing on 4 November 2025.

3         At the initial Hearing on 15 January 2025, the respondent’s evidence was that the applicant’s previous position had been abolished and made redundant. The applicant submits that given the breakdown in trust and confidence with the respondent, reinstatement to her previous role is impracticable. I agree and find that it is impracticable to reinstate the applicant to her former position. Therefore, pursuant to s 23A(6) of the Industrial Relations Act 1979 (WA) (IR Act), I will assess the applicant’s loss and injury caused by the dismissal and make an award in the applicant’s favour for compensation.

4         The applicant submits that an order of compensation equivalent to six weeks’ wages being $6,814.92 and a further order of $5,000.00 for injury, would be appropriate in the circumstances.

5         The applicant contends that six weeks is the minimum period of time it would have taken the respondent to fairly bring about an end to the applicant’s employment.

6         The applicant submits the respondent had been disingenuous when she offered the applicant a part-time position and maintained the deception of continued employment. The applicant adjusted the management of her finances and medical procedures on the basis of the reduction in hours. The abruptness of the change in her circumstances when informed of the immediate termination of employment, caused significant emotional distress and she was required to increase her medication.

7         The method in which the respondent communicated her dismissal was via email and with no reason other than a general statement that it was in the ‘best interests of the business’. The email was communicated whilst the applicant was on leave. The applicant’s evidence is that the method of dismissal was callous and compounded her distress.

8         The applicant gave evidence that she has taken steps to mitigate her loss by applying for jobs and undertaking volunteer work. However, she has not been successful in obtaining alternative employment and attributes this to her visual impairment. The applicant estimates it will take her more than six months to secure alternative employment. The applicant gave evidence that it took her around seven years to find her role with the respondent. The applicant contends that the respondent knew of the challenges she had faced in finding employment and knew of the difficulties the applicant would face in finding alternative employment opportunities.

9         As a person with visual impairment, the applicant submits she faces significant discrimination on a day-to-day basis and particularly in her field of employment. She is also under significant financial stress due to medical costs associated with her ongoing health.

Principles to be applied

10      In determining the amount to be awarded for compensation under s 23A of the IR Act, the Commission applies the principles in Bogunovich v Bayside Western Australia Pty Ltd [No 2] (1998) 79 WAIG 8 (Bogunovich). In Mr Alan Scicluna v Mr William Paul Brooks T/AS Bayview Motel Esperance, WA [2016] WAIRC 00862; (2016) 96 WAIG 1475 [61] (Bayview), the Full Bench distils those principles:

The principles for an assessment of compensation were comprehensively set out in Bogunovich [No 2]. Bogunovich [No 2] was decided prior to the amendments to s 23A in 2002. The principles set out in Bogunovich [No 2] and subsequent decisions of the Full Bench and the Industrial Appeal Court which are referred to below, together with the matters set out in s 23A(7) of the Act which are relevant to the disposition of this appeal, are as follows:

(a) The powers conferred under s 23A to order payment of compensation must be for a demonstrated loss or injury caused by the dismissal.

(b) Such payments are not a means for punishing an employer: Garbett [85] (EM Heenan J). However, an award of compensation is not restricted to the damages which might be recovered at law for wrongful dismissal: Garbett [85] (EM Heenan J). It is a statutory remedy that is different from the species of relief which may be available under the contract of employment: Matthews v Cool or Cosy Pty Ltd [2004] WASCA 114; (2004) 136 IR 156; (2004) 84 WAIG 2152 [60] - [61] (EM Heenan J).

(c) In determining whether an employee has been unfairly dismissed, and in considering whether pursuant to s 23A it should order the employer to pay any, and what amount of compensation to the employee for loss and injury caused by the dismissal, the Commission acts judicially: Helm v Hansley Holdings Pty Ltd (In Liq) [1999] WASCA 71; (1999) 118 IR 126; (1999) 79 WAIG 1860 [9] (Kennedy J).

(d) Like the assessment of an award for general damages, the assessment of compensation under s 23A is not an exact science: Gilmore v Cecil Bros (1996) 76 WAIG 4434, 4447 (Sharkey P), (4449) (Gifford C).

(e) The first step is to assess the total amount of compensation that can be awarded; that is the amount of the remuneration of the employee that would be payable in a period not exceeding six months (see s 23A(8) and s 23A(9) of the Act).

(f) The employee is to establish his or her loss and/or injury on the balance of probabilities. This involves a finding of fact or mixed law and fact, as to what is the loss and injury established on the evidence: Bogunovich [No 2] (9) (Sharkey P), (13) (Kenner C).

(g) The onus of proof of failure to mitigate rests upon the employer. If it is established that an employee has failed to mitigate his or her loss, then it may be that there has not been a loss of remuneration caused by the dismissal. A finding that an employee has a duty or is required to mitigate his or her loss is a misstatement of the law: see the discussion in Sealanes (1985) Pty Ltd v Foley [2006] WAIRC 04110; (2006) 86 WAIG 1239 [99] - [104]; applied in Curtis v Ausdrill Ltd [2006] WAIRC 05656; (2006) 86 WAIG 3133 [35] - [38] (Ritter AP and Gregor SC).

(h) Regard is also to be had to any efforts of the employer to mitigate the loss suffered by the employee as a result of the dismissal (s 23A(7)(a)).

(i) The Commission must assess the proper amount of compensation for loss and/or injury in light of all the relevant circumstances, but disregarding the cap prescribed by s 23A(8). If the amount is in excess of the cap, the amount to be awarded is the permissible maximum: Bogunovich [No 2] (8) (Sharkey P).

(j) The assessment of compensation:

(i) is to be made in light of all relevant circumstances;

(ii) must not be arbitrary;

(iii) must have regard to whether the employee has taken reasonable steps to find alternative employment: Curtis [36] - [38], [43] (Ritter AP and Gregor SC);

(iv) is a determination pursuant to s 26(1)(a) made according to equity, good conscience and the substantial merits of the case, without regard to technicalities and legal forms. This legislative direction does not enable the Commission to determine the matter without resort to established legal principles, where those principles are established. However, as Beech CC observed in Curtis, when considering an award of compensation made pursuant to s 23A [64]:

The Commission should be slow to fetter its own wide discretion under s26(1) to produce an outcome which is just and equitable and not simply lawful. It is not irrelevant to note that the power given to the Commission is to order compensation, not damages; what might be a correct outcome in a court of law may nevertheless be unacceptable according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. There may well be good reason for the inclusion of s23A(7)(c) if it thereby allows the Commission to have regard to any other matter believed to be crucial to achieving a fair go all round to be taken into account in the overall assessment of any compensation ordered in lieu of reinstatement (Sprigg v. Paul's Licensed Festival Supermarket (1998) 88 IR 21 at 31).

(k) The Commission is also bound pursuant to s 26(1)(c) to have regard for the interests of the persons immediately concerned whether directly affected or not.

(l) To the extent that it is relevant, the Commission is directed to take into account the matters set out in s 26(1)(d) of the Act: Gilmore (4447) (Sharkey P), (4449) (Gifford C). Section 26(1)(d) provides:

In the exercise of its jurisdiction under this Act the Commission —

(d) shall take into consideration to the extent that it is relevant —

(i) the state of the national economy;

(ii) the state of the economy of Western Australia;

(iii) the capacity of employers as a whole or of an individual employer to pay wages, salaries, allowances or other remuneration and to bear the cost of improved or additional conditions of employment;

(iv) the likely effects of its decision on the economies referred to in subparagraphs (i) and (ii) and, in particular, on the level of employment and on inflation;

(v) any changes in productivity that have occurred or are likely to occur;

(vi) the need to facilitate the efficient organisation and performance of work according to the needs of an industry and enterprises within it, balanced with fairness to the employees in the industry and enterprises;

(vii) the need to encourage employers, employees and organisations to reach agreements appropriate to the needs of enterprises and the employees in those enterprises.

It is notable, however, that it is unlikely that the matters set out in s 26(1)(d) will be raised on the facts as a relevant consideration when determining an assessment of compensation.

(m) When deciding questions of future loss, assistance can be derived from Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 in which it was held by Deane, Gaudron and McHugh JJ that a court must assess the degree of probability that an event would have occurred or might occur, and adjust its award to reflect the degree of probability. Unless the chance is so low as to be regarded as speculative or so high as to be practically certain, the chance is to be taken into account in assessing compensation: Bogunovich [No 2] (8) (Sharkey P).

(n) How long an employee would have remained employed by the employer is a matter that is relevant to an assessment of loss causally connected to an unfair dismissal. In particular, it may be open to find on the evidence that an unfairly dismissed employee could have been fairly dismissed by the employer at a time post the dismissal: Bogunovich [No 2] (13) (Kenner C). It may also be open on the evidence that an employee may have left the employer's employment voluntarily at some point in the future following the dismissal: Bogunovich [No 2] (13) (Kenner C). However, there would need to be evidence capable of characterisation as more than mere speculation and that there was a real prospect of the employment being terminated fairly at some point thereafter (the dismissal): Fisher & Paykel Australia Pty Ltd [79] (Kenner C), [2] (Ritter AP).

(o) It has been found that unconscionable or culpable conduct on the part of the employer and employee in the employment relationship and the issues that went to the determination of whether the termination of employment was unfair are not relevant in assessing loss and injury; that is, loss or injury is not to be assessed by reference to fault: Capewell v Cadbury Schweppes Australia Ltd (1997) 78 WAIG 299, 302 (Sharkey P), (305) (Coleman CC); Bogunovich [No 2] (8) (Sharkey P), (13) (Kenner C). This principle must be qualified by the observation made by Kenner C in Bogunovich [No 2] at (13), that this principle does not prohibit a finding by the Commission on the evidence that the employment may not have continued for a long period. To this qualification we would add the observation that it is well established by the authorities, in particular Lynam v Lataga Pty Ltd [2001] WAIRC 02420; (2001) 81 WAIG 986 [56] - [58] and AWI Administration Services Pty Ltd v Birnie [2001] WAIRC 04015; (2001) 81 WAIG 2849 [200] (Coleman CC and Smith C) in which it was accepted that the circumstances in which the dismissal from employment has been effected, such as callous treatment, may be sufficient to demonstrate the injury which is experienced. However, it is the injury itself, not the actual conduct of the employer, including callous treatment, which is the condition precedent for compensation for injury. There may be unreasonable conduct but it may not necessarily lead to the employee suffering an injury. That is a question of fact. For example, in Lynam, the evidence was of the stress and injury suffered by Mr Lynam including grinding his teeth at night, feeling hard done by and upset. It was the 'callous, oppressive and humiliating course of conduct culminating in a dismissal and injury to Mr Lynam' [58]. (emphasis added) [61]

11      Applying these principles I now assess the compensation owed to the applicant.

Consideration

12      I agree with the submissions of the applicant in respect to an order of compensation for loss. I consider six weeks would be the minimum period in which the respondent could have terminated her employment fairly. The respondent’s evidence is that she decided to abolish the position held by the applicant because the duties of the position were to be distributed amongst existing staff. The process for the necessary consultation required by the Minimum Conditions of Employment Act 1993 (WA) and the required notice under the Clerks (Commercial, Social and Professional Services) Award, would result in a minimum of six weeks’ payment for redundancy. Applying Bogunovich and Bayview, I will order the respondent pay the applicant $6,814.92 in compensation for the applicant’s loss due to the unfair dismissal.

13      The applicant also seeks an order of compensation for injury, which amounts to $5,000.00. The applicant contends that the termination of her employment has had a significant and ongoing impact on her both financially and emotionally, that is beyond the usual distress associated with a termination.

14      The applicant refers the Commission to the compensation for injury awarded in Anthony & Sons Pty Ltd T/A Oceanic Cruises v Fowler [2005] WAIRC 01744; (2005) 85 WAIG 1899 (Fowler) as the starting point for assessing the amount that ought to be awarded in this matter. The applicant submits the facts in Fowler are similar to this matter. The termination in Fowler was abrupt and the applicant in this matter experienced a similar level of shock and humiliation to that of the employee concerned in Fowler. However, the applicant also points to differences and contends that the award ought to be greater in this matter, particularly given the applicant’s contextual situation. In Fowler, the Full Bench determined an amount of $2,000.00 for injury. I note that the equivalent value of the order issued in 2005 cumulatively indexed to 2025, is about $3,460.20.

15      In AWI Administration Services Pty Ltd v Birnie (2001) 81 WAIG 2849 (AWI Administration Services), cited in Fowler, the Full Bench upheld a decision of the Commission to award $5,000.00 in compensation for injury. The circumstances in AWI Administration Services were that the employee was given to believe by his employer that he was being considered for promotion. However, the employee was subsequently informed thereafter, that he was redundant in the following 24 hours. The equivalent value of the order issued in 2001, cumulatively indexed to 2025, is about $9,625.00. The employee in AWI Administration Services had relied on the prospect of promotion and was shocked, upset and humiliated by the abrupt decision to terminate his employment. Similarly in this matter, the applicant had been given to believe that her ongoing position was secured, by agreeing to consider a reduction in her hours of work in the face of the respondent’s financial constraints. Subsequently, the respondent changed her mind and without any warning or explanation, abruptly terminated her employment via an email.

16      I accept the applicant’s evidence that she was shocked by the respondent’s decision to terminate her employment, and this caused her significant distress. Particularly because the applicant had relied on the respondent’s proposal to continue her employment on reduced, part-time hours. I find that the respondent’s conduct in terminating the employment relationship, without any regard to the circumstances of the applicant, caused significant emotional distress. I accept that the level of distress experienced was beyond that associated with almost all employer-initiated terminations. I accept the applicant increased her medication as a result of the circumstances she found herself in due to the respondent’s decision to abruptly terminate her employment via email.

17      The applicant seeks compensation of $5,000.00 for injury. Applying Fowler and AWI Administration Services, I will award compensation of $5,000.00 for injury.

Conclusion

18      For the reasons outlined above, I will order the respondent pay the applicant $11,814.92 gross within seven days of the date of the order. This is a total amount being $6,814.92 in compensation for loss and $5,000.00 in compensation for injury.