Reinstatement for unfair dismissal; the principles

These comments from a recent appeal in an unfair dismissal case deal with some important legal principles which apply when the Fair Work Commission is considering reinstating an employee who has won his or her unfair dismissal case, namely the implications of the employer having filled the applicant’s position with another employee and trust and confidence.

“We intend to deal with appeal grounds 1(a) and 2 concurrently. Each of these grounds allege error in relation to the Deputy President’s approach to Club Assist’s evidence and submission that Mr Yap’s role at the Chatswood hub had been replaced.

[40] Club Assist contends that Mr Kinsella gave uncontested evidence that Mr Yap’s role at the Chatswood hub had been replaced and the only TRR role available to which Mr Yap could be reinstated was at least a two-hour drive from the Chatswood hub. Club Assist submits that this is a material consideration which it referred to in its closing submissions. It says that the issue warranted proper and genuine consideration by the Deputy President. However, Club Assist contends that Mr Kinsella’s evidence, and Club Assist’s submission in respect of it, were not considered by the Deputy President in the decision at all or were otherwise given insufficient weight.

[41] Club Assist submits that the Deputy President simply restated its submission regarding the replacement of the role. Club Assist’s position is that this does not equate to consideration of the issue. We accept that the Deputy President approached his consideration of remedy by selectively extracting the parties’ respective submissions. However, it is not contended that in doing so, the Deputy President omitted a relevant submission. Rather, the criticism is that the Deputy President did not “grapple with” Mr Kinsella’s evidence in the sense that he did not address why he did not accept that the replacement of the position rendered reinstatement inappropriate, and nor did he deal with the submission at all. However, for the reasons that follow, we are not persuaded that the Deputy President erred in either manner contended.

[42] We accept that the Deputy President did not refer to the evidence given by Mr Kinsella that the closest TRR role in which Mr Yap could be replaced was at least a two-hour drive from the Chatswood hub. In Soliman v University of Technology, Sydney 67 it was said that “there is no requirement that a decision-maker need refer to every piece of evidence and every submission which may be advanced for resolution.”68 It is trite to observe that not every submission and piece of evidence is of equal relevance to a decision. The factual and statutory context and the parties’ contentions may mean that express consideration of certain submissions or evidence is necessary to avoid creating an inference that relevant matters were not taken into account.

[43] In the context of reinstatement under s.390(3)(a), which prohibits an award of compensation unless the Commission is satisfied that reinstatement is “inappropriate,” the statutory task is to consider whether reinstatement of the person is appropriate. 69 We accept that consideration of the remedy of reinstatement must always take into account the circumstances which have pertained since the dismissal took effect.70 Notwithstanding this, not every post-dismissal fact will bear upon the broad discretionary assessment to such a degree that it requires express consideration in a decision-maker’s reasons.

[44] It is not in dispute that the mere fact an employer has filled the position previously occupied by the dismissed employee may be a matter that would rarely, of itself, justify a conclusion that reinstatement is inappropriate. 71 This is because it will often, if not “typically” be the case that an applicant’s position will be replaced prior to the determination of any remedy in an unfair dismissal application. The remedial purpose of the legislation would be undermined if this were a determinative reason for concluding that an order for reinstatement is not appropriate.72

[45] The fact that an applicant’s position is no longer vacant at the time an unfair dismissal application is arbitrated does not, without more, bear so significantly upon the assessment of the appropriateness of reinstatement so as to require its express consideration in a statement of reasons. In our view, for such a requirement to arise the evidence or associated submissions must go further and demonstrate why the replacement of the role bears upon a particular case for reinstatement – that is, with reference to the appropriateness of such an order.

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By appeal ground 1(b), Club Assist contends that the Deputy President failed to consider, or otherwise gave manifestly inadequate weight to the evidence that Mr Yap had commenced working another full-time job as a vehicle delivery coordinator.

[57] The contention is framed on the proposition that Mr Yap having obtained alternative employment is a relevant post-dismissal circumstance that should be taken into account. 80

[58] In support of the contention, Club Assist relies on the Full Bench decision in Seitz v Ironbay Pty Ltd (t/a City Beach IGA) (Seitz), 81 which reasoned that, in assessing whether reinstatement is an appropriate remedy, “it is obviously relevant as to whether the dismissed employee has obtained alternative employment.”82 The context of this proposition is important. In Seitz, the applicant sought only monetary compensation as a remedy for his unfair dismissal. Notwithstanding the applicant’s desired remedy, the decision-maker at first instance found that reinstatement was appropriate and ordered the applicant be reinstated without backpay. The applicant appealed the order. The Full Bench considered that the first instance decision-maker, amongst other things, failed to take into account that the applicant had obtained alternative employment. The Full Bench continued:83

“…Where that new employment is satisfactory to the employee, it will be no remedy at all to reinstate the employee to the pre-dismissal employment to which the employee, for well-founded reasons, has no desire to return. It may be accepted that the fact that an applicant employee does not seek the remedy of reinstatement does not, by itself, necessarily make the grant of reinstatement as a remedy inappropriate. The primacy of the remedy of reinstatement in the sense discussed in Nguyen requires consideration of the appropriateness of reinstatement whether the applicant seeks it or not. However the matters identified above which the Deputy President failed to take into account all strongly tend to demonstrate that reinstatement in this case was inappropriate.”

[59] The factual context of the present appeal is entirely different. Mr Yap did not contend that reinstatement was inappropriate as he had obtained alternative, preferable employment such that it would be “no remedy at all” to order accordingly. Conversely, Mr Yap sought reinstatement since making his unfair dismissal application, identified a significant reduction to his wages in his alternative employment, 84 and gave evidence of the personal reasons underpinning his desire to return to work at Club Assist, including his friendships and job satisfaction.85

[60] Importantly, no submissions were put to the Deputy President by Club Assist addressing how Mr Yap’s alternative employment should weigh upon the assessment of whether reinstatement was appropriate. Regardless of whether it could be contended by an employer that an employee having obtained alternative employment should weigh against them when seeking reinstatement, 86 that contention was never put to the Deputy President.

[61] Club Assist’s contention is that the evidence existed and the Deputy President’s failure to expressly address it in his reasons led him into error. As noted above at [43], not every post-dismissal fact will bear upon the broad discretionary assessment of whether reinstatement is appropriate to such a degree that it requires express consideration in a decision-maker’s reasons to avoid the decision being attended by error. Certainly, it is not clear how and why the matter is so relevant to the assessment of remedy in the particular circumstances of Mr Yap’s application that it warrants express consideration in the decision.

[62] On appeal, Club Assist submits that the passage in Seitz establishes a test which considers whether the alternative employment is “satisfactory” to the employee, and not whether the employee “preferred” one job over another. 87 We consider there to be no practical difference between whether alternative employment is satisfactory to the employee and whether it is preferable to the employee. In any event, the alternative employment is, for the reasons at [59], not satisfactory to Mr Yap.

[63] We consider that the Deputy President afforded the fact that Mr Yap obtained alternative employment no weight in his assessment of whether reinstatement was appropriate. In the circumstances, we consider that it was open to him to do so.”

Appeal by Club Assist Pty Ltd v Yap (2022) FWCFB 175 delivered 15 September 2022 per Catanzariti VP, Millhouse DP and Lee C