This is a brief extract taken from the Fair Work Commission’s unfair dismissal benchbook which makes the point that the Commission may not make orders for the reinstatement of the employment of an employee who is successful in an unfair dismissal case subject to conditions. Reinstatement for unfair dismsal is in any event very rarely ordered.
“An order for reinstatement CANNOT be made if it is conditional upon a medical, risk or health and safety assessment by a third person after the order has been issued.
The Fair Work Commission must make any required assessment of that nature based on the evidence of the parties. If the Commission cannot be satisfied that the relevant employee is fit to perform the inherent duties of his or her former position, or those of an alternative position that is no less favourable, then reinstatement is not an appropriate remedy.[1]
This does not mean that a reinstatement order may not contain ancillary provisions additional to the requirement that the employee be reinstated to the identified position. For example, a reinstatement order will usually identify a date by which the order is to be complied with; and other necessary ancillary provisions may be included provided that the order is one which retains the essential character of effecting the reinstatement of the employee.[2]”