This very useful extract from a recent unfair dismissal case of the Fair Work Commission deals with remedies for unfair dismissal including reinstatement.
“Remedy
[131] Being satisfied that the Applicant:
- made an application for an order granting a remedy under section 394;
- was a person protected from unfair dismissal; and
- was unfairly dismissed within the meaning of section 385 of the FW Act,
I may, subject to the FW Act, order the Applicant’s reinstatement, or the payment of
compensation to the Applicant.
[132] Under section 390(3) of the FW Act, I must not order the payment of compensation to
the Applicant unless:
(a) I am satisfied that reinstatement of the Applicant is inappropriate; and
(b) I consider an order for payment of compensation is appropriate in all the
circumstances of the case.
Is reinstatement of the Applicant inappropriate?
Submissions
[133] The Applicant submitted that reinstatement is appropriate in circumstances where the
FWC finds that Applicant was dismissed without a valid reason.
[2023] FWC 2446
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[134] The Respondent submitted that it did not dispute that reinstatement was appropriate if
the FWC found that there was no valid reason for termination.
[135] Having regard to the submissions and given the absence of any apparent impediment to
the Applicant returning to work for the Respondent, I consider that reinstatement is not
inappropriate.
Reinstatement – to what position should the Applicant be appointed?
[136] Section 391(1) of the FW Act provides that an order for the Applicant’s reinstatement
must be an order that the Applicant’s employer at the time of the dismissal reinstate the
Applicant by:
(a) reappointing the Applicant to the position in which the Applicant was employed
immediately before the dismissal; or
(b) appointing the Applicant to another position on terms and conditions no less favourable
than those on which the Applicant was employed immediately before the dismissal.
[137] Neither party sought to address the issue of the position to which the Applicant should
be reappointed. Given the size of the Respondent’s operation and the nature of the Applicant’s
job prior to his dismissal, I am satisfied that it is open to me to make an order reappointing the
Applicant within seven days of the date of this decision to the position in which the Applicant
was employed immediately before the dismissal.
Reinstatement – is it appropriate to make an order to maintain continuity?
[138] Section 391(2) of the FW Act provides that, if the Commission makes an order for
reinstatement and considers it appropriate to do so, the Commission may also make any order
that the Commission considers appropriate to maintain the following:
(a) the continuity of the Applicant’s employment;
(b) the period of the Applicant’s continuous service with the employer or, if applicable, the
associated entity.
Submissions
[139] The Applicant sought an order to maintain the continuity of his employment and period
of continuous service with the employer.
[140] The Respondent did not oppose such order if the FWC found there was no valid reason
for dismissal.
[141] In all the circumstances, I consider it appropriate to make an order to maintain the
Applicant’s continuity of employment and period of continuous service with the employer.
Reinstatement – is it appropriate to make an order to restore lost pay?
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[142] Section 391(3) of the FW Act provides that, if the Commission makes an order for
reinstatement and considers it appropriate to do so, the Commission may also make any order
that the Commission considers appropriate to cause the employer to pay to the Applicant an
amount for the remuneration lost, or likely to have been lost, by the Applicant because of the
dismissal.
[143] Section 391(4) of the FW Act provides that, in determining an amount for the purposes
of such an order, the Commission must take into account:
(a) the amount of any remuneration earned by the Applicant from employment or other
work during the period between the dismissal and the making of the order for
reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the Applicant
during the period between the making of the order for reinstatement and the actual
reinstatement.
[144] An order to restore lost pay does not necessarily follow an order for reinstatement. The
Commission may only make an order if it considers it appropriate to do so and only make an
order that the Commission considers appropriate.17 Where an employee has engaged in
misconduct, the Commission may refuse to make any order to restore lost pay.18
Submissions
[145] The Applicant sought an order to pay lost remuneration to the Applicant, minus the
period of notice paid by the Respondent.
[146] The Respondent did not oppose such an order if the FWC found there was no valid
reason for dismissal.
[147] I will seek submissions from the parties regarding the amount of remuneration lost by
the Applicant from the date of his termination to the date of his reinstatement and issue a
separate order specifying the amount payable as lost remuneration.
Conclusion
[148] An order will issue for the Applicant to be reinstated into his former position within
seven days of the date of that order, with continuity of employment and period of continuous
service to be maintained. Once submissions on lost remuneration are received and considered,
a separate order for payment of lost remuneration will issue.”
Crook v CITIC Pacific Mining Management Pty Ltd [2023] FWC 2446 delivered 22 September 2023 per O’Keeffe DP