These are the introductory remarks in the Fair Work Commission’s unfair dismissal benchbook about the remedy of reinstatement of employment, something which is very rarely sought or ordered as a remedy in a successful case.
“What does an order for reinstatement mean?
See Fair Work Act 2009 s.391
An order for reinstatement means that the employer must:
reappoint the person to the position in which they were employed immediately before the dismissal,[2] or
appoint the person to another position with terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.[3]
When ordering reinstatement the Commission does not have to specify a particular position. It can be left to the employer to choose the position and to comply with the order to provide terms and conditions that are no less favourable than those on which the person was employed immediately before their dismissal.[4]
When is reinstatement not appropriate?
Reinstatement might be inappropriate in a range of circumstances, for example:
if the employer no longer conducts a business into which the employee may be reappointed[5]
if an employee is incapacitated because of illness or injury. The weight to be accorded to ongoing incapacity when considering whether reinstatement is appropriate will depend upon all of the circumstances of the case[6]
where there has been a loss of trust and confidence such that it would not be feasible to re-establish the employment relationship[7]
where reinstatement of an employee would almost certainly lead to a further termination of the employee’s employment (for example, because the employer discovers an act of serious misconduct after the employee’s termination)[8]”