This is an extract from an interesting decision of the Fair Work Commission in an unfair dismissal case in which the employment of the employee who pursued the case was ordered to be reinstated together with orders to facilitate the remedy for the wages lost.
“[123]
I do not consider it inappropriate to order the reinstatement of the Applicant’s employment and I intend to do so.
Form of the order for reinstatement
[124]
Section 391(1) of the Act provides the Commission may order a person’s reinstatement either to the position in which they were employed immediately before the dismissal or to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal. In her reply Statement, the Applicant said “if necessary, I am happy to be relocated to the Longford [sic] where I previously worked for 11 years”86.
[125]
The order I intend to make is that the Applicant be reinstated to the position in which she was employed immediately before the dismissal. This was in her role at the Prospect Vale BWS. However, there is nothing stopping the Respondent and the Applicant discussing a transfer of store, provided the Commission’s order is complied with.
[126]
An order to maintain continuity will also be made, pursuant to s 391(2) of the Act.
85 Supplementary Statement of Wendy Blair, 20 May 2026 [5], [7], [10]
86 Supplementary Statement of Wendy Blair, 20 May 2026, [13]
[2026] FWC 1873
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Order to restore lost pay
[127]
Section 391(3) of the Act provides that, if the Commission makes an order for reinstatement and considers it appropriate to do so, the Commission may also make any order that the Commission considers appropriate to cause the employer to pay to the Applicant an amount for the remuneration lost, or likely to have been lost, by the Applicant because of the dismissal.
[128]
An order to restore lost pay does not necessarily follow an order for reinstatement. The Commission may only make an order if it considers it appropriate to do so and only make an order that the Commission considers appropriate87. The Commission may take into account all of the circumstances of the case, including the conduct of the employee that led to the dismissal88. Where an employee has engaged in misconduct, the Commission may refuse to make any order to restore lost pay.
[129]
I consider it is appropriate to make an order to restore lost pay in this matter. The Respondent’s Form F3 Response said that the Applicant’s weekly wage / salary at the time of the dismissal was $34.08 per hour, 7.4 hours per week (average). There was no other material before the Commission indicating the Applicant’s income. On the basis of what is said in the Response, it appears the Applicant earned about $252.19 per week.
[130]
The Applicant said that after the termination of her employment, on 14 February 2026 she suffered a hairline fracture to her foot and also broke her rib. She said that as at the date of her witness statement, she had not begun applying for jobs yet89. It was evident that, at least at this time, the Applicant had not earned remuneration from any other work since dismissal.
[131]
Compliance with the Orders I will make in this matter must occur within 14 days of the date of my Order. About 29 weeks will have transpired between that date, and the date of dismissal. The Applicant’s entire loss for that period appears to be about $7,313.51.
[132]
Sections 391(4)(a) and (b) of the Act require that I take into account remuneration earned by the Applicant between the dismissal and the date of an order for reinstatement, and remuneration likely to be earned during the period between the making of the order and the actual reinstatement. There is no evidence before the Commission of any such remuneration having been earned.
[133]
However, I consider it appropriate to discount the amount to be ordered to restore lost pay. First, it is appropriate to discount the amount because of the apparent failure of the Applicant to mitigate her loss suffered since dismissal, where, at least on the evidence before me, there had been no attempt made by her to find another job. Second, I consider that while the Applicant’s conduct did not warrant or justify her dismissal, it is appropriate to take it into account by way of a discount applied to the amount to be ordered to restore lost pay. Thirdly,
87 Aurora Energy Pty Ltd v Davison PR902108 (AIRCFB, Watson SDP, Williams SDP, Holmes C, 8 March 2001) [25]
88 Humphries v Buslink Vivo Pty Ltd [2015] FWC 6278 citing Kenley v JB Hi Fi, Print S7235 at [36]
89 Witness Statement of Wendy Blair, [8.9]
[2026] FWC 1873
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some time has transpired since hearing, and the date of this decision, during which time whether the Applicant has earned remuneration from other work is unknown. An order for lost pay is discretionary, and I do not consider it necessary to delay this matter further by calling for more material to be filed about what has transpired since hearing. Rather, for the reasons outlined, I consider it appropriate to discount the Applicant’s loss by 50% and make an order for lost pay of $3,656.755, less taxation as required by law, as well as the appropriate contribution for superannuation.
Orders
[134]
Given my findings above, I will make an Order pursuant to s 391(1)(a) of the Act that the Respondent must reinstate the Applicant’s employment to the position she held immediately before her dismissal. I will also make an Order pursuant to s 391(2) to maintain the continuity of her employment, in so far as it is necessary with respect to the nature of her employment. I will also Order pursuant to s 391(3) that she be paid a sum in respect of remuneration lost of $3,656.755, less taxation as required by law, as well as the appropriate contribution for superannuation within 14 days of the date of the Order. Orders will issue to that effect90.”
Blair v Endeavour Group Limited [2026] FWC 1873 delivered 31 July 2026 per Redford C