Reinstatement is the primary remedy for unfair dismissal thus;
“6. The application to lead fresh evidence in the appeal
[48] The Council sought to lead further evidence in the appeal from its Acting General Manager, Mr Porch, concerning its position that the reinstatement of Mr Mills creates a serious work health and safety risk and about the exchanges that occurred between the Council, the Respondent and Mr Mills’ union, the Australian Municipal, Administrative, Clerical and Services Union (ASU) around the time of the scheduled reinstatement of Mr Mills. It was also contended by the Council that this evidence would be relevant to its proposition that Mr Mills had not ceased to take medication containing THC.
[49] Section 607(2) of the Act confers a discretion on the Full Bench to “admit further evidence” and “take into account any other information or evidence” on appeal. In exercising the discretion, the Full Bench is guided12 by the principles set out in Akins v National Australia Bank (Akins).13 Previous Full Benches have described those principles as requiring that “(a) it must be established that the evidence could not have been obtained or adduced with reasonable diligence for use at first instance; (b) it must be evidence which is of such a high degree of probative value that there is a probability that there would have been a different result at first instance; and (c) the evidence must be credible.”14
[50] In Akins, the Court qualified these “general principles” saying that “it is not possible to formulate a test which should be applied in every case to determine whether or not special grounds exist.”15 Full Benches of this Commission have also recognised that it is permissible, in an appropriate case, to depart from these principles, but it will be rare for fresh evidence to be admitted on appeal where the conditions in Akins are not met.16
[51] We declined to admit the fresh evidence in this case. Although some of the evidence could not have been provided at first instance as it related to post-Decision events, the bulk of the proposed “new” evidence dealt with material and facts already before the Commission in one form or the other. Further, the genuinely new evidence may have been credible, however it was not of sufficient probative value and would, in effect, require the Full Bench to permit further direct evidence about many of the matters that have been determined at first instance. This in our view was not an appropriate course of action.
- Consideration
[52] In relation to the grounds of appeal as they impact upon the finding that the dismissal itself was unfair, we do not consider that a reasonably arguable case of appealable error has been made out.
[53] Given the particular circumstances of this matter and the nature and state of the medical evidence before the Commission, it was open for the Deputy President not to make the finding that Mr Mills was unable to safely perform his duties. The reasons for this are adequately stated in the extracts from the Decision set out earlier. These include that the essential purpose and focus of the report provided by Dr McCartney was around the performance of work whilst taking medication containing THC.17 Further, there was little evidence about the context and basis for the workers compensation medical certificate provided by Dr Johnson and the report by Dr Doig was somewhat problematic given that he was not called to give evidence and the report itself was open to interpretation. In this regard, we make no criticism of the Council, noting that it did not seek to rely upon that report as part of its case at first instance and it was only introduced by Mr Mills, who was representing himself.
[54] It would have been open to the Deputy President to find that Mr Mills could not safely perform the work with THC in his system. The uncontested evidence of Dr McCartney provided the basis for such a finding. Although a fair reading of the Decision would indicate that this was consistent with the approach taken by the Deputy President, an express finding of that kind was not made. However, this did not arise in the context of the assessment of the fairness of the dismissal, and we will return shortly to the medical evidence in terms of the appeal grounds impacting upon the reinstatement order. We also observe that the Deputy President accepted Mr Mills’ evidence that if reinstated, he would stop using the medication containing THC.18 This would reasonably have been understood to mean that he would stop, when and if the reinstatement actually occurred. This finding was also reasonably open to the Deputy President.
[55] The finding that the dismissal was unfair was adopted by the Deputy President based upon the particular circumstances of the matter. In addition to the findings made about the existence of a valid reason for dismissal and in relation to the medical evidence more generally, these circumstances included, in effect:
- a final position in relation to alternative pain treatment had not been reached and the Council had not given sufficient time to explore those options;19
- the Council did not give fulsome consideration to the options available under the policy, including an EAP tailored to his circumstances and/or a return to work program and/or a rehabilitation program;20
- the Council was not open to the option of Mr Mills resuming his duties, whilst not using a medication containing THC, despite his desperation and determination to keep his job, even if this meant carrying out his duties in physical discomfort.21 We will return to this aspect; and
- Mr Mills’ personal circumstances and the significant impact of the dismissal upon him.22
[56] The Deputy President found, in effect, that these considerations weighed strongly in favour of a finding of unfairness and outweighed the valid reason for the dismissal and the other
s.387 considerations. This finding was open to the Deputy President, and we do not consider that an arguable case of appealable error has been demonstrated.
[57] In relation to the notion that Mr Mills could carry out his work in discomfort, this must be seen in the context of the particular circumstances evident here and the finding that the unfairness occurred in part because the decision was, in effect, premature and was made without properly exploring other reasonable options. We would emphasise that the mere availability of options other than dismissal would not by itself normally lead to a finding of unfairness. Further, the concept of a worker undertaking work in some discomfort should always be approached with considerable caution having regard to the particular facts of any case.
[58] We turn now to the reinstatement and the appeal grounds as they impact upon that aspect. In Thinh Nguyen and another v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australian23 a Full Bench of this Commission stated:
“[10] Subsection 390(3) underscores the primacy of reinstatement as a remedy for an unfair dismissal as the discretion to order a remedy of compensation may only be exercised if the Commission is satisfied that reinstatement is ‘inappropriate’. Further, one of the objects of Part 3-2 of Chapter 3, in which the unfair dismissal provisions appear, is “to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement”. We would observe that to describe reinstatement as the ‘primary remedy’, is to simply recognise that reinstatement is the first, perhaps even the foremost, remedy under the Act. The relevant question in determining whether to grant the remedy of reinstatement of an employee in relation to a dismissal that is found to have been ‘unfair’ is whether reinstatement is appropriate in the particular case.”
(Footnotes omitted)
[59] It is well established that medical incapacity is a proper basis upon which the Commission may decline to exercise its discretion to order reinstatement.24 In Smith v Moore Paragon Australia Ltd,25 a Full Bench of the Australian Industrial Relations Commission said (in relation to an unfair dismissal remedy application under the Workplace Relations Act 1996):
“[51] The weight to be accorded to ongoing incapacity on the part of an employee when considering whether reinstatement pursuant to s.170CH(3) is appropriate will depend upon all the circumstances of the case. However, when considering whether reinstatement is appropriate for an employee who has an ongoing incapacity arising from illness or injury, the guiding principle ought be that generally reinstatement of a materially incapacitated employee will not be appropriate where:
- further performance of the employee’s contractual obligations in the future would either be impossible or would be a thing radically different from that undertaken by him or her and accepted by the employer under the agreed terms of his or her contract of employment;
- reinstatement would involve imposing a material future productivity burden or some other unreasonable burden on the employer; or
- reinstatement would impose an unreasonable burden on other employees.
Exceptional circumstances would be necessary before reinstatement could properly be regarded as appropriate in such cases.
[52] Reinstatement will involve a material future productivity burden on an employer when the employee cannot be fully or substantially fully productive within the ambit of the employee’s substantive position.”
[60] We observe that there was no indication before the Deputy President that Mr Mills was, or would be, unproductive, or that his circumstances placed, or would place, an unreasonable burden on other employees.
[61] The approach taken in Smith v Moore Paragon Australia Ltd was consistent with the High Court’s analysis of the reinstatement power in Blackadder v Ramsey Butchering Services Pty Ltd.26 In that matter, members of the High Court emphasised that the power of reinstatement necessarily involved not just a restoration of remuneration but a practical return to work. McHugh J said:
“[14] To construe the power “to reinstate” as confined to restoring contractual or other legal rights fails to give full effect to the term “reinstate”. To reinstate means to put back in place. In this context, it means that the employment situation, as it existed immediately before the termination, must be restored. It requires restoration of the terms and conditions of the employment in the broadest sense of those terms. It empowers the Commission to do more than restore the contract of employment. So far as practicable, the employee is to be given back his “job” at the same place and with the same duties, remuneration and working conditions as existed before the termination.”
[62] Similarly, Hayne J said that to effect reinstatement “The employer must provide work to be done by the employee of the same kind and volume as was being done before termination”,27 and Callinan and Heydon JJ said that “To pay the appellant but not to put him back in his usual situation in the workplace would not be to reinstate him.”28
[63] As is confirmed in Samuel Singh v Australian Taxation Office,29 the same approach has been taken in relation to the reinstatement power under the present Act. In Cartisano v Sportsmed SA Hospitals Pty Ltd30 a Full Bench of this Commission said that a reinstatement order under s.391(1)(a) “must be one which achieves an actual return to work in the employee’s pre-dismissal position”, and that likewise an order under s.391(1)(b) appointing a person to an alternative position that is no less favourable “must achieve an actual return to work in the alternative position identified in the order”. The Full Bench stated:
“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 the proper course will be to find that reinstatement is not the appropriate remedy and to turn to the alternative remedy of compensation.”
[64] This requires us to further consider the medical evidence before the Deputy President and the related findings. We have already concluded that it was open for the Deputy President to decline to make the findings sought by the Council given the nature and state of the evidence. This does not mean that there were, and are, no issues about Mr Mills’ capacity to safely perform the relevant work, however these should be assessed on the basis of medical evidence properly directed to that issue. This includes any evidence about whether the performance of the work reasonably required might exacerbate the injury. We observe that the present evidence before the Commission is equivocal about this aspect and open to interpretation.
[65] That is, Dr McCartney did not physically assess Mr Mills, and conceded he would not give a conclusive opinion as to Mr Mills’ physical state without having someone do a ‘very specific functional assessment’. Further, Dr Doig’s report did not expressly refer to any risk of exacerbating an injury should Mr Mills return to work, or any assessment that Mr Mills’ previous return to work had exacerbated any injuries. Dr Doig’s assessment was largely that age will worsen Mr Mills’ symptoms, and that some restrictions would assist with his discomfort.
[66] We earlier referred to the findings concerning the capacity for Mr Mills to safely perform his work whilst relying upon medication containing THC. As we had indicated, a finding that he could not do so was reasonably open on the evidence and a fair reading of the Decision is that the Deputy President adopted that view, including in relation to the remedy.
[67] We also consider that the basis upon which the dismissal was found to be unfair in this case, properly informed the Deputy President as to whether reinstatement was the appropriate remedy.
[68] We have found that the findings made by the Deputy President concerning the medical evidence were reasonably open, and we also do not consider that either of the appeal grounds as they impact upon the reinstatement order are such that the public interest is engaged. The Decision is also confined to its own discrete facts.
[69] We will however shortly return to the issues that do remain as to Mr Mills’ work capacity in light of the Decision.
- Conclusions and disposition of the appeal
[70] For reasons largely set out above, we do not consider that it is in the public interest to grant permission to appeal. We are not satisfied that the appeal raises legal or factual issue of significance or general application, that there is a diversity of decisions at first instance, or that the legal principles applied by the Deputy President are disharmonious when compared with other decisions. Further, we do not consider that given the discrete facts here, the Deputy President’s decision is counter intuitive or manifests an injustice. Section 400(1) of the Act requires that in such circumstances the Commission not grant permission to appeal.
[71] We have earlier noted that there are some unresolved issues concerning Mr Mills’ capacity to safely perform the work in question. Consistent with the concept of reinstatement under the Act, the Decision and Order required that the Council return Mr Mills to his pre- dismissal position. It was also not open to the Deputy President to place preconditions on that reinstatement. At the time of the dismissal, Mr Mills held the position of a full-time Works Officer, with his performance of that work subject to suspension on full pay and a review of his medical condition and other related factors and options. Also consistent with the concept of reinstatement is that the process and options discussed by the Deputy President in the Decision at [62] and [63], and the proper functional assessment of Mr Mills’ fitness for work contemplated by Dr McCartney and discussed at [38] of the Decision, which were clearly open as part of the pre-dismissal position, remain so. We observe that this is also consistent with work health and safety obligations applying to this workplace.
[72] We order that permission to appeal is refused.
[73] The stay of the Order made by the Deputy President is rescinded with effect 7 days from the date of this decision.”
Appeal by Glamorgan Spring Bay Council v Adam Mills [2025] FWCFB 69 delivered 16 May 2025 per Asbury VP, Hampton DP and O’Neill DP