Reinstatement for unfair dismissal

This is a portion of a very rare decision of the Fair Work Commission determining that reinstatement was the appropriate remedy for a case found to be an unfair dismissal.

‘In submitting that he be reinstated, Mr Morrissy relies on the Full Bench in Regional Express Holdings Ltd T/A Rex Airlines v Richards 81 where it said as follows:

“[26] Whenever an employer dismisses an employee for misconduct, assuming the employer is acting honestly, there is an implied loss of trust and confidence in the employee. If it is subsequently found that the termination was harsh, unjust or unreasonable it is appropriate to consider whether the relationship can be restored if the employee is reinstated. That question cannot be answered solely by reference to the views of management witnesses. All of the circumstances should be taken into account. In this case there is a number of relevant matters. They include the fact that not all of the conduct alleged against the respondent has been proven, the respondent’s apparently unblemished record in the performance of his flying duties over a period of 14 years, the fact that the misconduct is not directly related to the performance of the respondent’s professional duties as a first officer and Rex’s failure to pursue any substantial disciplinary action against another pilot who, it is alleged, has been guilty of misconduct at least as serious as that of which the respondent was accused. The significance of the last consideration is that the pilot in question is still carrying out the full range of his duties, despite allegations of conduct of a kind which, in the respondent’s case, is said to have led to an irrevocable loss of trust and confidence. Assuming a positive approach on both sides we find there is a reasonable chance that the employment relationship can be restored with the necessary level of mutual trust.” (Emphasis added by Mr Morrissy)

[234] Mr Morrissy submits that, similarly, the conduct and events which led to his dismissal are not so damaging to the employment relationship that it cannot be restored with the necessary level of mutual trust. Thus, reinstatement is the appropriate remedy.

[235] In responding to Mr Morrissy’s written submissions, the TAC submits that “[t]he Commission should not be persuaded to accept the Applicant’s submissions that reinstatement is an appropriate remedy.” 82

[236] At the hearing when Ms AB was asked about the prospect of Mr Morrissy being reinstated, she said:

“I would be devastated.  I would have to quit my job.  I am scared of him.  I can’t be in a workplace with him.” 83

[237] Mr Poel gave evidence that he felt concerned about the possibility of Mr Morrissy being reinstated. 84 Mr Poel said that, if reinstated, Mr Morrissy would be required to participate in team meetings and, although staff at the TAC were working remotely at the time of the hearing, Mr Poel said he expected that staff would be using the office more regularly in future and that Mr Morrissy would have to participate in both in-person and online meetings if reinstated.85

[238] In cross-examination, Mr Poel said that he would interact directly with Mr Morrissy during his employment “very infrequently” 86 and that:

“Look, if we were in the building, you know, I’d probably see him in the building reasonably regularly.  At the kitchen, et cetera.  But since we’ve been remote, my interactions with team members is different because we’re working very differently.” 87

[239] Mr Poel says he did not look at Mr Morrissy’s skill set and whether he could be redeployed because he had already made up his mind to dismiss Mr Morrissy during the investigation process. 88

[240] In Anderson v Thiess Pty Ltd, 89 the Full Bench included the following regarding remedies for reinstatement:

“[21] We accept the respondent’s submission that a decision as to whether it is appropriate to order the remedy of reinstatement is discretionary in nature. As was explained in the Full Bench decision in Nguyen v Vietnamese Community in Australia28, a broad range of factors may be relevant in a consideration of the appropriateness of reinstatement:

[10] … 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.

[15] In Australia Meat Holdings Pty Ltd v McLauchlan a Full Bench of the AIRC gave consideration to the differences in the provisions of the IR Act and the WR Act and concluded that “a consideration of appropriateness of reinstatement involves the assessment of a broader range of factors than practicability . . . [I]n considering whether to order the reinstatement the Commission is not confined to an assessment of the practicability of such an order are that must decide whether such an order is appropriate”.”

[241] The Full Bench in Nguyen v Vietnamese Community in Australia T/A Vietnamese Community Ethnic School South Australia Chapter 90 distilled the principles relating to the impact of loss of confidence on whether reinstatement was appropriate:

“•  Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement.31

  • Each case must be decided on its own facts, including the nature of the employment concerned. There may be a limited number of circumstances in which any ripple on the surface of the employment relationship will destroy its viability but in most cases the employment relationship is capable of withstanding some friction and doubts.32
  • An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion.33
  • The reluctance of an employer to shift from a view, despite a tribunal’s assessment that the employee was not guilty of serious wrongdoing or misconduct, does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged or destroyed.34
  • The fact that it may be difficult or embarrassing for an employer to be required to re-employ an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate.35

[242] The Full Bench further stated that:

“[28] Ultimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party.”

[243] I adopt these principles in the consideration of this matter.

[244] I accept the evidence of Mr Morrissy that he loves his job and wants to put this matter behind him. I accept Mr Morrissy’s submissions that the issue of reinstatement cannot be about the subjective feelings of one employee.

[245] The TAC is a large organization based in a multi-level building in Geelong. It is not in dispute that hundreds of TAC employees work in the Geelong building. Mr Poel says that there are 460 employees that fall under his management. 91 I accept Mr Morrissy’s statement that he would see 20 to 30 people a day. The TAC office in Geelong is of significant size to accommodate the reinstatement of Mr Morrissy.

[246] Having regard to the matters referred to above, I consider that reinstatement is not inappropriate.

[247] I have insufficient evidence and submissions regarding the matters that I need to consider in s.391 of the Act. Accordingly, issued concurrently with this decision are directions for the filing of further material to address those matters.”

Extract from Morrissy v Transport Accident Commission – [2022] FWC 1061 – 9 May 2022 – Mirabella C