A worker stood down by SC Hydro Pty Ltd worked for two Western Australian companies while still suspended, without the employer’s consent. SC Hydro learned of the jobs from documents produced during the unfair dismissal proceedings. It argued the second jobs would have led to his dismissal within a short time anyway, and that compensation should be cut accordingly. Deputy President Wright rejected that argument and ordered SC Hydro to pay $60,417.85 gross, plus superannuation, within 14 days.
The decision, [2026] FWC 3396, was issued on 21 October 2026 and determined on the papers. It follows an earlier decision of 14 July 2026, [2026] FWC 2411, which found the dismissal harsh and unjust under s.387 of the Fair Work Act 2009, despite a valid reason for dismissal connected with safety procedures, and found reinstatement inappropriate.
At a glance
- Parties: A dismissed worker and SC Hydro Pty Ltd (Snowy 2.0 Project underground works)
- Citation: [2026] FWC 3396, Deputy President Wright, 21 October 2026
- Section: Fair Work Act 2009, ss.390, 392
- Outcome: $60,417.85 gross compensation plus superannuation, payable within 14 days
- Who it affects: Employers relying on secondary employment clauses or later-discovered conduct to limit compensation
The second jobs and the suspension behind them
SC Hydro stood the worker down on 25 June 2025 while it investigated. He was dismissed on 19 January 2026. In between, he worked for View Resources Pty Ltd from about 22 September 2025 to 16 November 2025, then for Aspect Engineering Solutions Pty Ltd from about 17 November 2025 to 19 January 2026.
Both enterprise agreements that covered him prohibited outside work without the company’s written consent. The earlier agreement’s clause is set out below. The 2025 Agreement repeats it at clause 8.8.
In order to manage fatigue, conflict of interest and other issues, Employee(s) must not engage in any additional employment or provide any paid services to anyone other than the Company during the employment under this Agreement without the prior written consent of the Company.
A payroll manager at Salini Australia gave evidence that from the stand down until the 2025 Agreement started on 5 September 2025, the worker received pay for his rostered ordinary hours alone, about $2,075 a week, without overtime, penalty rates, loadings or allowances. From that date he was paid as though his rostered hours had been worked, averaging $6,797.94 a week. The suspension left him $51,952.34 short over that period.
On 16 August 2025 the worker told SC Hydro the uncertainty was affecting his financial security and wellbeing. He was told the investigation would be finished within days. SC Hydro’s next contact with him came in December 2025.
The Deputy President found it likely that the worker “engaged in secondary employment to address the financial and psychological impact of the suspension, particularly as he did not hear anything further from SC Hydro in August 2025 as promised.”
Why the second jobs did not shorten the award
that the unauthorised secondary employment was a further ground for dismissal and that, allowing for an investigation, the worker’s employment would likely have ended “within a short time”. It also pointed to the valid reason finding, his 3.5 years of service, a claimed loss of trust over his attitude to safety compliance, his age of 65 and a possible reduction in work on the project.
that losing his job caused significant financial hardship, that he relied on savings and sold an investment property, and that at 65 he had found it difficult to obtain comparable permanent work.
that “it is difficult to see how SC Hydro would have had a reasonable basis” for dismissing over the second jobs, and that the worker would have stayed employed for at least another twelve months.
The Deputy President gave three reasons. There was no evidence the worker knew of the consent requirement. The 2021 Agreement was a greenfields agreement made before he started, and the 2025 Agreement was made while he was suspended, so he was absent when its terms were explained under s.180(5). The clauses did not mandate dismissal, and their stated purposes were not engaged. There was no fatigue issue while he was doing no work for SC Hydro, and the two other employers operate in Western Australia, a long way from SC Hydro’s operations. Finally, the reduced pay and the months without contact would have been “strong mitigating factors” making dismissal unlikely.
On the loss of trust, the Deputy President said there was “no evidence to support this submission”. There was also no evidence the worker planned to retire, had health issues, or that overtime on the Snowy 2.0 Project would fall before 19 January 2027.
SC Hydro had relied on two earlier decisions, a 2015 Full Bench decision involving Chevron Australia, [2015] FWCFB 5354, and a 2014 decision involving Broadmeadow Mine Services, [2014] FWC 9309. The Deputy President distinguished both. Each dealt with lost remuneration under s.391(3) ordered alongside reinstatement, and neither established that a valid reason for dismissal makes compensation under s.390(1) inappropriate.
Where the worker lost ground
The worker’s job-search evidence was thin. His SEEK history recorded six applications, made on 26 and 30 June 2026, which was over five months after he was dismissed. He produced no payslips for a fly-in fly-out role he told the Commission about on 5 August 2026. The Deputy President found he was unemployed from 8 March to 5 August 2026 and should reasonably have found work at his previous rate by 1 June 2026.
His evidence of reduced savings came from a bank account in another person’s name, with transfers starting before the stand down. The Deputy President found it related to the suspension, not the dismissal, and did not take it or the property sale into account.
How the figure was reached
Applying the Sprigg formula, the Deputy President estimated lost remuneration at $353,492.88, being 52 weeks at $6,797.94. On the anticipated period of employment, he applied the test from the Full Court of the Federal Court in He v Lewin.
From that figure he deducted $223,812.51 in actual and expected earnings. That sum included $30,027.33 paid in lieu of notice, $32,674 from Aspect Engineering after removing the 25% casual loading from $40,842.50 earned, and an inferred $74,777.34 from the FIFO role. A further deduction for the failure to mitigate, covering 9.3 weeks from 1 June to 5 August 2026, reduced the amount to $66,459.63. No contingency discount was applied.
Under s.392(3), misconduct that contributed to the dismissal requires a reduction. SC Hydro sought at least 25 to 30%. The Deputy President settled on a 10% reduction, citing findings that the conduct “was not deliberate and did not involve a risk of harm to himself and others”, the worker’s good record and his apology. The amount ordered is $60,417.85.
The decision deals with the argument that conduct discovered after a dismissal would soon have ended the employment in any case. Here the Commission tested that claim against the stated purpose of the agreement clause, whether the employee had been told of it, and the employer’s own conduct during the suspension.
Source: [2026] FWC 3396
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