Reinstatement for unfair dismissal; the principles

Here is an extract from a recent decision of the Fair Work Commission which sets out the legal principles which are applied when determining whether reinstatement should be ordered for unfair dismissal.

“As a general proposition, it is inappropriate to order reinstatement if an employment relationship has irretrievably broken down and there are no reasonable prospects of it being restored. 83

This proposition flows from the fact that trust and confidence is a necessary ingredient in an employment relationship. However, the mere fact that an employer asserts trust and confidence has been eroded to such an extent that the relationship is irretrievable is not, in itself, a sufficient ground on which to conclude that reinstatement is inappropriate. An objective consideration of the question needs to be made and the conclusion reached should be soundly and rationally based. 84

Further, mere embarrassment or difficulty on the part of an employer is not necessarily indicative of a loss of trust or confidence sufficient to render the employment relationship irretrievable. 85

I accept that in finding there was no valid reason for dismissal it does not automatically flow that reinstatement is the appropriate remedy. 86

Considering all relevant factors, I am not satisfied that reinstatement is inappropriate. I am satisfied that it is both appropriate and necessary in the interests of fairness.”

Chivonivoni v Cobham Aviation Services Engineering Pty Ltd (2020) FWC 3568 delivered 18 August 2020 per Anderson DP