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Reinstatement After Unfair Dismissal

When an employer breaches the Fair Work Act 2009 when terminating an employee, this is a wrongful or unfair dismissal. The primary remedy for wrongful dismissal is the reinstatement of the employee to their previous position. The Fair Work Commission will only consider another remedy if reinstatement is inappropriate in the circumstances. This article explains reinstatement after unfair dismissal, focusing on a recent case before the Fair Work Commission.

What Is An Order For Reinstatement After Unfair Dismissal?

An order of reinstatement requires an employer to reappoint the former employee immediately to their previous position. If this is impossible, the employer must appoint the former employee to a different position with no less favourable terms and conditions. The Fair Work Commission does not usually specify a particular position for the reinstatement of the employee. The employer has latitude to appoint the employee to a suitable position that suits the company’s needs.

Reinstatement After Unfair Dismissal May Be Unfeasible

Reinstatement is not always possible or even appropriate. For example, the employee may now be unfit to perform the work, or the employer may be unable to reinstate the employee for various reasons. By the time the Commission orders reinstatement of the employee, it may be too late because the employer no longer operates the business. However, it is not sufficient for an employer to simply say that the employee’s former position is no longer available. The employer will almost certainly have filled the position after the employee’s dismissal, but this is not a valid argument against reinstatement after unfair dismissal. The employer must find another position in the company for the employee with comparable conditions.

The employee may be unfit for reinstatement because of illness or injury. The Commission will not order reinstatement when:

  • The employee would be physically unable to meet their contractual obligations or would have to perform radically different duties;
  • There is no chance that the employee will recover from the illness or injury;
  • It would impose an unreasonable burden on the company’s future productivity; or
  • It would impose an unreasonable burden on the employee’s co-workers.

Before ordering reinstatement, the Commission will assess the employee’s fitness to work. In Chetcuti v Coles Group Supply Chain Pty Ltd [2012], an employee was injured at work and undertaking a return to work plan when he was dismissed for failing to provide medical certificates and attend compulsory meetings. The Commission concluded that the employee was unfairly dismissed, and the employee was now fit and capable of resuming his duties. The Commissioner ordered the reinstatement of the unfairly dismissed employee.

Loss Of Confidence And Trust

In many cases, reinstatement is unfeasible because of a loss of confidence and trust between employee and employer, which are essential ingredients in any viable and productive employment relationship.

An employer may be reluctant to reinstate an employee who was fired for misconduct. However, the employer must justify their loss of trust and confidence to the Commission on sound, rational grounds. An employer cannot refuse to reinstate an employee simply because of preference or embarrassment over the termination.

The Commission will consider whether a reasonably minded employer would consider reinstatement the appropriate remedy. On the other hand, the employer may have legitimate grounds (separate from the cause of the dismissal) to distrust the employee, in which case reinstatement is inappropriate.

Reinstatement after unfair dismissal: Case Study

The Full Bench of the Fair Work Commission recently quashed a compensation order in favour of reinstatement after unfair dismissal. In the case of Wally Moszko v Simplot Australian Pty Ltd [2021], Mr Moszko worked at a potato processing plant as a shift feeder. His employer terminated his employment amid allegations that he failed to perform essential processes on several days and falsified a log sheet. The Commissioner found that the employee worked in a team that shared responsibility for the duties in question. As such, the allegations were unsubstantiated, and Mr Moszko’s dismissal was unreasonable and unjust. While the employee sought reinstatement, the Commissioner initially found that reinstatement was inappropriate. The Commissioner agreed that the employer’s trust was damaged by ongoing suspicion over the original misconduct and additional allegations that had arisen during the hearing.

Mr Moszko appealed the decision to the Full Bench, which quashed the original decision and ordered reinstatement with back-pay and continuity of service. The Full Bench pointed out that Mr Moszko was an employee of twenty-three years, and such tenure of employment could withstand some doubt and friction. The employer had not investigated the further allegations, and the Full Bench found they were not rational or currently provable. Ultimately, the Full Bench judged that the employer had failed to demonstrate a loss of confidence and trust in the employment relationship.

The Commercial Law Team at Armstrong Legal can help if you want to pursue reinstatement after unfair dismissal. Please contact our specialist solicitors on 1300 038 223 today for experienced legal assistance with any employment law or discrimination law matter.

Dr Nicola Bowes

This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

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