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Daniel Victory, the principal lawyer for employment issues at Maurice Blackburn’s Melbourne office, said the unfair dismissal compensation cap was a trade-off to protect employers from business-destroying payouts.
Adrianna Permus, who was unfairly dismissed by Guzman y Gomez at their Westfield Carousel store.Credit: Tony McDonough
But he added: “I think it is flawed, and it should be changed.”
Permus is now aged 19 and works as an apprentice electrician. But she still bears scars from the end of her first job at Guzman y Gomez (GYG) in Cannington, a southern suburb of Perth.
“It felt pretty bad,” she says, “because I didn’t do anything wrong.”
Permus started at Guzman y Gomez in February 2023 while at school. It began well, she says, but her regular shifts stopped in July 2024.
She offered to work when managers put callouts to a staff WhatsApp group to fill shifts, but she was repeatedly overlooked.
After an internal complaint, Permus filed a general protections claim with the Fair Work Commission, alleging she was a victim of racial discrimination.
Guzman y Gomez denied this, saying Permus did not meet performance standards, though it filed no evidence.
In the following months, before a conference about her discrimination claim, GYG told Permus she was still employed but hadn’t been allocated any shifts.
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Fair Work Commission deputy president Slevin later found Permus was in effect dismissed after a Fair Work meeting on October 10. Her discrimination claim was not resolved or substantiated.
Permus eventually filed an unfair dismissal claim on November 11, outside the 21-day time frame, but Slevin granted an extension because “the conduct of GYG” had created confusion that led to the delay.
Slevin eventually handed down his decision on the merits of Permus’ case on May 1 this year, concluding her dismissal was harsh, unjust and unreasonable.
“I find that Ms Permus was a hard worker who was trusted to train others and was always willing to accommodate the needs of the business by making herself available to do extra shifts and take on additional duties,” Slevin said.
In her statement to the commission, Permus noted the Mexican fast-food chain employed many youths like her who deserved a positive first job experience.
Permus wants the Fair Work Act to be changed, so compensation for unfair dismissal is more equitable.Credit: Tony McDonough
“I was so depressed and feel worthless. I was crushed,” she wrote.
“From the happy young girl that wanted [to] grow and constantly improve self, I was changed to [a] self-isolated person struggling to find motivation to leave [the] bedroom.”
In deciding the remedy, Slevin said the Fair Work Act meant he was “constrained” to order no more in compensation than the $10,252.35 that Permus had earned in her disrupted last 26 weeks.
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“This figure is less than the figure I would otherwise have ordered,” he said.
“I note that the manner in which the cap operates in this case is inequitable to Ms Permus.”
Victory said the cap was often inequitable to the poorest workers, who faced the same costs of a claim as anyone else but whose possible benefits were limited by their low earnings.
“But I think there’s been an extra layer of unfairness in this case,” Victory said, “because it was the employer themselves who reduced the employee shifts over the last six months before the dismissal, and now they’re getting the benefit of that conduct, which they shouldn’t.”
He also suggested the mental harm that Permus endured could warrant additional compensation, but noted section 392(4) of the act explicitly barred unfair dismissal compensation for shock and distress.
“That now is really peculiar to unfair dismissal,” Victory said, pointing out it contrasted with the High Court recently allowing psychiatric injury compensation in contract disputes.
When asked about Permus’ case, a Guzman y Gomez spokesperson said: “While we do not comment on individual employee matters, GYG has taken the findings of the decision in May 2025 seriously. We are always committed to continuous improvement and strive to create the best possible workplace for our people.”
