The Fair Work Act 2009 mandates that the primary remedy for unfair dismissal must be re-instatement of employment. Indeed the Fair Work Commission may not order any other form of relief unless it is positively satisfied that the re-instatement of the employee is inappropriate. Where re-instatement is ordered, the Commission may also order that the employer pay to the employee an amount for lost remuneration.
If the Commission is statisfied that re-instatement is inapprorpiate, it may consider compensation as an alternative remedy (sec 390).
IUnder sec 392, in determing the amount of compensation to be ordered, the Commission is commanded to take into account all the circumstances of the case including
(a) the effect of the order on the viability of the employer’s enterprise;
(b) the length of service;
(c) the remuneration which would have been earned save for the dismissal;
(d) the efforts the employee has made to mitigate his or her loss;
(e) any remuneration earned between the dismissal and the making of the compensation order;
(f) the likely amount the employee will earn between the making of the award of compensation and the payment of it; and
(g) any other matter the Commission considers relevant (although what this means is anyone’s guess since the Commission has already been instructed by the opening words of the section to take into account all the circumstances of the case).
The amount of compensation is not to exceed half of the high income threshold or 6 months’ remuneration.
Given the length of time which is elapsing between dismissals and hearings nowadays, it is submitted that the compensation cap is ridiculous and the Commission should be trusted to award compensation which is a real measure of any loss.