Remedies for unfair dismissal

This extract from a decision of the Fair Work Commission in an unfair dismissal case contains very useful insights into the reasoning and principles of remedies for unfair dismissal.

“Reinstatement

[24] The Respondent submitted that reinstatement is inappropriate for the purposes of and within the meaning of s.390(3)(a) because:

(a) the Applicant’s former position no longer exists;

(b) there are no available alternative equivalent positions at either of the Saraji or Peak Downs Mines; and

[25] The Respondent said the primary issue which must be considered is whether it would

be appropriate to make an order for the Applicant’s reinstatement.12

[26] The Respondent referred to the case of Humphries, where VP Catanzariti said at [54] that the word “impracticality” found in earlier statutes is interchangeable with “inappropriate” under the Act. The Vice President also referred with approval to Perkins v Grace Worldwide (1997) 72 IR 186, where a Full Bench of the Federal Court referred to the practicality of reinstatement as follows:

“Each case must be decided on its own merits. There may be cases where any ripple on the surface of the employment relationship will destroy its viability. For example the life of the employer, or some other person or persons, might depend on the reliability of the terminated employee, and the employer has a reasonable doubt about that reliability. There may be a case where there is a question about the discretion of an employee who is required to handle highly confidential information. But those are relatively uncommon situations. In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether that standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party.

It may be difficult or embarrassing for an employer to be required to reemploy a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee’s employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer’s own making. If the employer is of even average fair-mindedness, they are likely to prove short lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable.”

(Respondent emphasis added)

[27] The Respondent said, first, due to operational reasons, the positions to which the Applicant seeks to be reinstated are not vacant and the Respondent’s workforce is fully at capacity. Further, Mr Costello’s evidence was that, because the Applicant would be surplus to operational requirements, his reinstatement would create a productivity burden on the Respondent. The Respondent said these are matters that weigh against reinstatement.13

[28] The Applicant countered that this submission was no barrier to reinstatement. The Applicant said that the fact of the position that was occupied by the employee being no longer available, on its own, is insufficient for a finding that reinstatement is not appropriate. He continued, the unavailability of a job vacancy is just one factor to be considered in determining whether reinstatement is appropriate.

[29] The Applicant noted that when considering a s.391(1)(b) order for appointment, the lack of a vacant role does not make this inappropriate. He continued, a s.391(1)(b) appointment elsewhere must be “no less favourable”.14

[30] The Respondent said, second, a number of the Respondent’s employees have concerns about the Applicant’s temperamental nature, particularly in a context where they have given evidence against him in this proceeding. These are matters that weigh heavily against reinstatement.15

[31] The Applicant submitted that it would be unfair and inappropriate to decline to reinstate him by reference to historical evidence of Mr Stenning and other colleagues regarding past disagreements. The Applicant said matters of this kind are disputed because they have not been proven, because he was not dismissed over them, because he was not disciplined over them and because of their historical nature.16

[32] The Applicant said the Respondent’s contention is unmeritorious because it is founded on inadmissible evidence, because it ignores the findings in the 24 October Decision and because of the commitments that the Applicant has since given. Further, if the Applicant is reinstated and misbehaves, the Respondent will be perfectly entitled to discipline him, just like any other employee.

[33] Third, the Respondent said it had reasonable concerns about the Applicant’s ability to

safely perform work if he returned to the workplace, a safety-critical setting.

[34] The Applicant said this submission is unmeritorious because it is founded on inadmissible evidence and is irrelevant. Further, if the Applicant is reinstated and acts unsafely, the Respondent will be perfectly entitled to discipline him, just like any other employee.

[35] Fourth, the Respondent said during the course of these proceedings, the Applicant made numerous allegations against the Respondent, and various of its employees, including managerial employees to whom the Applicant would be required to report if reinstated.

[36] The Applicant said the contention is unmeritorious and irrelevant. The matters complained of are an unavoidable part of adversarial litigation. This submission boils down to the Respondent impermissibly taking exception to the Applicant exercising a workplace right via this proceeding.

[37] The Applicant also raised as another relevant matter that the Commission should consider relevant to the consideration of reinstatement is that if reinstated, the Applicant will have the benefit of a Regulated Labour Hire Arrangement Order. If he is not reinstated, he will be deprived of that benefit. The same goes for the Applicant’s dozer training.

Loss of trust and confidence

[38] The Respondent said as a consequence of the points raised above, there is a reasonable basis for the Commission to be satisfied that there is no longer sufficient trust available between the Applicant and Respondent such as to make the employment relationship viable or workable.

[39] The Applicant submitted that reinstatement might be inappropriate where there has been a loss of trust and confidence such that it would not be feasible to re-establish the employment relationship.17 However he continued, the reason for the loss of trust and confidence must be ‘soundly and rationally based’.18

[40] The Applicant noted an employer who has accused an employee of wrongdoing justifying summary dismissal may be reluctant to change their opinion despite a Commission finding. Consequently, it is important to carefully scrutinise any claim by an employer that reinstatement is impractical because of a loss of confidence in the employee.19 The fact that it may be difficult or embarrassing for an employer to re-employ an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct is not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate.20

[41] The Applicant submitted the Commission would be satisfied that it is appropriate, noting the Applicant’s rejection that he engaged in misconduct, and that the Applicant has since re-committed to complying with his obligations to the Respondent.

[42] The Applicant also noted it is possible that the parties’ relationship may improve. Whilst

no threats were found, in any event, past threats are not indicative of future behaviour. 21

[43] The Respondent submitted this is a workplace where, as the Applicant accepted in cross-examination, management expects employees to comply with safety requirements and employees have to trust each other to keep each other safe.

[44] However, the Respondent contended the Applicants answers in relation to a safety incident at the Carmichael mine indicate that he cannot be trusted to comply with such policies and procedures. He accepted on the day of the incident (in the incident statement form) that he was responsible for the incident, but before the Commission was full of excuses about other persons involved in the incident ‘stitching him up’ and Mackellar informing him that, in fact, he had not done the wrong thing (a proposition advanced for the first time in the witness box). This demonstrates that Ms Ross, a manager at Goonyella, has a rational and soundly based reason to be concerned, as she is, that the Applicant will not comply with the Respondent’s policies and procedures.

[45] The Respondent said in cross-examination the Applicant expressed his belief that, insofar as the January 2023 incident with Mr Fiddler is concerned, the very many employees who gave accounts against him were colluding with each other to eradicate him from the workplace. He accepted that he does not trust them.

[46] The Respondent said, he also expressed his belief that people still working at Goonyella including Mr Semaine and Mr Wirth had been spreading lies about his partner and as to the latter had engaged in serious, criminal behaviour. He still believes Mr Brazier engaged in such conduct, and accepts that there is a prospect that Mr Brazier could be reinstated at Goonyella or another OS mine, by reason of a separate unfair dismissal process. In view of his own beliefs about the wrongdoing of these colleagues and prospective colleagues, the Respondent said it is inconceivable that he would be able to work productively with these people.22

[47] The Respondent submitted the Applicant lied to the Commission in the evidence he gave about what happened during the incident with Mr Stenning. It said he must have done, because his account was not accepted by the Commission in the 24 October decision. Moreover, as per his cross-examination, he stands by the lie and continues to assert that he did not do what the Commission found he did. The Respondent said these matters suggest a high degree of likelihood that he will behave in an aggressive and intimidating manner again if reinstated.23

Compensation/ order for lost pay

[48] The Applicant submitted that an order for lost pay under s.391(3) should be calculated in the same way as compensation under s.392.

[49] The Applicant submitted there is no relevant misconduct that might lead the Commission to form the view that an order for continuity of service is not appropriate.

[50] The Respondent submitted that to the extent the Commission is minded to make any compensation order, it should be a modest amount that accounts for the four weeks’ notice paid to the Applicant by the Respondent, and his failure to mitigate his losses by resigning from his alternative employment. The Respondent contended that as to backpay, this should not be awarded in circumstances where the Applicant had obtained alternative employment and chose, of his own volition, to resign from that employment under a cloud.

[51] The Applicant responded that this submission is misconceived. The Applicant said he can only seek compensation for the 6 months following his dismissal, which period ended on 8 October 2025. In circumstances where his resignation from M People (QLD) Pty Ltd occurred after that, on 19 October 2025, it could never be relevant, nor provide a proper basis for reducing the amount payable to the Applicant.

[52] The Respondent acknowledged that the Applicant was entitled to long service leave in accordance with the Coal Mining Industry (Long Service Leave) Administration Act 1992 (Cth) (LSL Act). In accordance with the formula at s.39AA of the LSL Act, between 10 April and 10 November 2025, the Applicant would have accrued 32.81 hours of long service leave.

CONSIDERATION

[53] The Respondent submitted that should the Applicant be reinstated and if an order to maintain continuity of employment is made in accordance with s.391(2) of the Act, the Respondent will recognise any service-based entitlement to parental leave in accordance with BHP Policy.

[54] The decision to reinstate is discretionary. The Respondent has opposed reinstatement on several grounds set out above, culminating in an asserted lack of trust and confidence. The asserted loss of trust and confidence must be soundly based. I do not intend to repeat in detail the reasons given in my 24 October decision that found the dismissal to be unfair. Briefly stated, I found the two events the Respondent relied upon to dismiss the Applicant in April and September 2024, did not occur as had Respondent determined.

[55] The Respondent has submitted that due to operational reasons, the positions to which the Applicant seeks to be reinstated are not vacant. Whilst this is a factor that needs to be considered it is not decisive. The Respondent has a reasonably large workforce across different locations, and the evidence demonstrates it makes decisions to reallocate labour as appropriate across its operations as required. I do not believe the operational reasons argument, in this case, is sufficiently strong to weigh heavily against an order for reinstatement. The particular circumstances of this employer do not make an order of this kind too onerous a burden when weighed against the findings in the 24 October decision. Further, the size and capacity of the Respondent to absorb the Applicant back into its workforce, and the potentially far greater benefits the Applicant will obtain from a reinstatement order as compared to an order for compensation, weigh in favour of reinstatement.

[56] The Respondent has referred to other employees having concerns about the Applicant’s temperamental nature and having given evidence against him in this proceeding. It is accepted that the Applicant had engaged in misconduct in an incident that occurred in a crib hut in January of 2023, for which the Applicant received a warning.

[57] The Respondent also refers to the evidence of Ms Ross, Mr Janetzki and Mr Stenning not wanting to work with the Applicant again by reason of his temperament and personality. The matters raised by these witnesses formed part of the evidence that was dealt with in the 24 October decision. The events that occurred at Goonyella were addressed in my earlier 24 October decision, and occurred in a context, including matters affecting the Applicants partner which is set out in detail in my earlier decision.

[58] I have also taken into account the Respondent’s argument that the Applicant will need to use the Moranbah Airport whether he travels to the Goonyella, Peak Downs or Saraji Mines if he is reinstated. The Respondent said it is a small airport, and if there is a delay, employees across all BMA mines are put up in BMA emergency accommodation. The Respondent submitted this will pose a risk of the Applicant coming into contact with people who were involved in these historical interactions at Goonyella.

[59] Ultimately, I am not satisfied that the evidence the Respondent has sought to rely upon from Ms Ross, Mr Janetzki and Mr Stenning is of a nature that would provide a sound basis to refuse the primary remedy of reinstatement because of these historical issues. It would be unfair and inappropriate to decline to reinstate the Applicant because of these other historical disagreements, in circumstances where I have found the conclusions arising from the

Respondent’s investigation in relation to the actual issues relied upon to dismiss the Applicant, were found to be wrongly concluded, and the Applicant did not engage in the misconduct the Respondent dismissed him for.

[60] As was put for the Applicant, if he is reinstated and misbehaves, the Respondent will be entitled to discipline him, just like any other employee.

[61] The Respondent has said it had reasonable concerns about the Applicant’s ability to safely perform work if he returned to the workplace, a safety-critical setting and relies on the Applicants decision to resign for the Carmichael Mine when his employer commenced an investigation into a safety incident at that Mine. There was no concluded investigation into the incident because the Applicant resigned.

[62] I have determined not to afford the Applicants decision to resign from Carmichael Mine and the circumstances surrounding this resignation significant weight as a factor weighing against reinstatement, because no investigation was concluded and no findings were made against the Applicant in relation to the incident.

[63] The Applicant maintained under cross examination he did not act unsafely and simply chose to resign. The Applicant has a reasonably lengthy period of employment in the mining industry including working as an Operator. As the Applicant submitted, if he is reinstated and acts unsafely, the Respondent will be entitled to discipline him, just like any other employee.

[64] The Respondent submitted the Applicant has made numerous allegations against the Respondent, and various of its employees, including managerial employees to whom the Applicant would be required to report if reinstated. Unfortunately, as has been submitted for the Applicant this is a feature of adversarial litigation. The 24 October decision vindicated the Applicant’s position on the key issues the Respondent relied upon to dismiss him.

[65] I have also taken into consideration the Applicant’s submission that if he is not reinstated, he will be denied the benefit of a Regulated Labour Hire Arrangement Order and the dozer training.

[66] The Respondent has also argued based on my finding in my 24 October decision concerning the incident in the crib hut in January 2023, that the Applicant lied during his evidence in relation to the incident with Mr Fiddler and also lied in relation to having a good relationship with Mr Stenning.

[67] The Applicant admitted to certain conduct in relation to the crib hut incident during the earlier hearing but disputed the extent of the alleged conduct. He received a warning at the time but continued to dispute the accuracy of the warning itself. I proceeded to make findings on the balance of probability in relation to this incident, which did not align entirely with the Applicant’s version. It should also be remembered this incident occurred in January of 2023, over two and a half years before the unfair dismissal hearing. His recollection was different to my conclusions on balance in relation to this issue. I do not agree the difference between the Applicant’s recollection and my conclusion must point to a conclusion that he was deliberately lying about the incident.

[68] In relation to Mr Stenning, the Applicant continued to maintain he believed he had a good professional relationship with Mr Stenning at the remedy hearing, in the face of the Respondent’s cross examination and Mr Stenning’s statement to the contrary. This issue in relation to Mr Stenning did not form part of the Respondent’s reasons for dismissal, was never the subject of any complaint or disciplinary process and was several years ago. I do not agree that it should play a significant part in my deliberations in relation to whether reinstatement is appropriate. I am also not persuaded that the Applicant was deliberately lying about this historical incident during the hearing before me in August 2025.

[69] I also noted that the Applicant gave evidence in the remedy hearing that he understands his obligations and will comply with them in the future, and follow the proper channels in relation to issues that may arise in the future. He gave evidence he would not seek to employ the active bystander training given his previous experiences.

[70] Having reached the above conclusions, I have also reached the conclusion that reinstating the Applicant to the Goonyella Mine would place him back in the same workplace where the evidence has established that the Applicant had been upset by rumours and gossip about his partner and certain employees who were involved in allegations concerning those matters remain employed at Goonyella.

[71] I have weighed the Respondent’s submission that even if the Applicant was reinstated to another Mine he would still have to pass through the Moranbah Airport. I am satisfied on the basis of the evidence that should the Applicant come into the vicinity of any employees who have been involved in any of the issues that had arisen at Goonyella, because they are passing through the Moranbah Airport at the same time as him, that he will conduct himself appropriately as he has learned from the unfortunate history of events at Goonyella.

[72] Having weighed all of the evidence, I have determined it is appropriate to issue an order under s.391(1)(b) that the Respondent reinstate the Applicant by appointing him to another position at the Saraji Mine on terms and conditions no less favourable than those on which the Applicant was employed immediately before the dismissal.

Order for Continuity of Employment

[73] I have determined it is appropriate to order that the Respondent maintain continuity of the Applicant’s employment and the period of the Applicant’s continuous service with the Respondent.

Order for remuneration lost

[74] The Respondent submitted that based on the findings substantiated by the investigation into his behaviour, the Applicant would have been subject to disciplinary action. Accordingly, his short-term incentive payment (STIP) to have been available from 1 September 2025 would have been reduced to an amount of no more than $5000.

[75] The Applicant said he seeks the STIP as part of the remedy, and submitted the Respondent wrongly suggested that this amount can or should be reduced. Because of the

Commission’s 24 October Decision, that course is not open to the Respondent and the full

amount of $13,470.10 should be awarded to the Applicant by the Commission.

[76] Given I have concluded that the findings of the investigation in relation to the reasons for dismissal were not made out, I do not accept that it is appropriate to reduce the projected figure he would have received from 1 September 2025 as a STIP and will incorporate the full amount.

[77] On 14 September 2025, a Regulated Labour Hire Arrangement Order came into effect covering the Respondent and its employees at Goonyella. From this date, the Applicant would have been entitled to be paid at the protected rate of pay under the BMA Enterprise Agreement 2022 (BMA EA). The Applicant would be classified as a Mineworker Level 2. Accordingly, he would be entitled to be paid at 87% of the applicable rate in Schedule 4 of the BMA EA: BMA EA, Sch 9, cl 2. As an employee working 7 days on (12.5 hours per shift), 7 days off, rotating days and nights, he would be entitled to the minimum rate of pay for roster type 7PR12.5 in Year 3 of the BMA EA. Between 14 September and 9 October 2025, the Applicant would have earned $12,366.62 ($11,041.62 in gross pay and $1,324.99 in superannuation).

[78] The Applicant submitted that the amount of remuneration that he would have received, or would have been likely to receive, if he had not been dismissed equated to $82,062.51 ($73,408.49 in gross pay and $8,654.02 in superannuation).

[79] The Respondent contended the Commission should make a deduction for the four

weeks’ payment in lieu of notice received by the Applicant.24 This was an amount of:

$12,390.99 ($11,057.08 in gross pay and $1,333.91 in superannuation).

[80] The Respondent also said, having regard to s.392(2)(e), the Commission should make a deduction for any income received by the Applicant from the alternative employment.25

[81] The Applicant said from the date of termination until now, the only income (including termination payment) he earned since the dismissal totals to $47,682.81 ($42,414.58 in gross pay plus $5,268.23 of superannuation).

From 15 June 2025 to 28 June 2025, the Applicant was employed at Middlemount by FES Coal Pty Ltd and earned $6,218.90 ($5,566.79 gross pay and $652.11 of superannuation) during that employment.

From 10 July 2025 to 19 October 2025, the Applicant was employed as an Operator at Carmichael by Adani MacKellar. From 10 July 2025 to 8 October 2025, the end of the six (6) month period of anticipated employment, the Applicant earned $28,616.67 ($25,325.60 in gross pay plus $3,291.07 in employer contributions) at Carmichael.

[82] From the amount the Applicant would have earned if he had not been dismissed ($82,062.51 income plus super) I will deduct the actual earnings from the alternative employment ($47,682.81 income plus super) and the 4 weeks of notice paid to the Applicant ($12,390.99 income plus super). I will award the STIP bonus of $13,470.10.

[83] The Respondent raised that in accordance with s.392(2)(g), the Commission should make a deduction for the overpayment made by the Respondent to the Applicant on 9 August 2025. This was in the amount of $400.40. The Applicant refuted the submission that there had ever been a loan/overpayment and further that this is not the proper forum for that issue to be resolved. The Applicant said the Commission should decline to consider that point. As I have insufficient material before me to arrive at a clear view on the matter, I will not include it in this determination, and it can be resolved between the parties in another forum.

[84] The Respondent said in accordance with s.392(2)(d), the Commission should further discount any compensation order to reflect the Applicant’s failure to mitigate the loss suffered, by voluntarily resigning from his employment with M People. The amount of this deduction should equal the amount which the Applicant would have earned from this alternative employment if he had not resigned for the period from 6 October 2025 to 1 December 2025, being $22,416 (being $20,014.25 in gross pay and $2,401.75 in superannuation).

[85] The Applicant submitted that his efforts to mitigate his loss of employment were considerable, being in the range of applying for 80-100 jobs, and bore some fruit and therefore this factor favours the claim for compensation.

[86] The Applicant’s submissions have been reasonably clear in proposing orders for lost remuneration to be calculated in the same way as if the Commission determined not to reinstate and instead made a compensation order. Whilst this method of calculation often applied in relation to s.392 by application of the Sprigg formula, does not apply in the same manner in relation to s.391(3) being orders for an amount of remuneration lost, the method of calculation is useful in this case.

[87] The Applicant’s proposed method of calculation almost entirely addresses the Respondent’s concern that the Applicant may potentially receive lost pay for a period that includes a time after he had voluntarily resigned from employment with M People from 6 October 2025 to 1 December 2025.

[88] The Applicant’s proposal for an order for lost remuneration is calculated by assessing earnings to a maximum of six months, and making appropriate deductions, meaning that the six month figure of earnings is based on the period from 9 April to 8 October 2025, less notice pay paid by the Respondent, and earnings from other employment up to that time. This results in the Applicant not receiving lost pay for a period after 8 October 2025. This is a logical approach.

[89] The Respondent also submitted the Commission must reduce the amount it would otherwise order to be paid as compensation by “an appropriate amount” on account of the misconduct engaged in by the Applicant which contributed to the Respondent’s decision to dismiss him: s.392(3). The Respondent submitted that an appropriate deduction for this purpose would be 50% of any compensation amount.

[90] The Applicant contended there is no proper basis for this submission because no evidence is referred to, and no attempt is made to confront the Applicant’s submissions made refuting that there was misconduct nor the abiding reality of the 24 October Decision. The Applicant said this submission should be withdrawn. I agree with the Applicant given my

findings in the 24 October decision. I do not intend to make a further deduction on account of misconduct that did not relate to the reasons for dismissal.

[91] I have decided to issue an order under s.391(3) that the Respondent pay the Applicant an amount of $35,458.81 for remuneration lost, which is inclusive of the amount of superannuation lost.

CONCLUSION

[92] As already set out above, having weighed all of the evidence, in the particular facts of this case I have determined it is appropriate that the Applicant be reinstated by being reappointed to another position at the Saraji Mine.

[93] The following orders will be issued separately and concurrently with this decision26:

An order under s.391(1)(b) that the Respondent reinstate the Applicant by appointing him to another position at the Saraji Mine on terms and conditions no less favourable than those on which the Applicant was employed immediately before the dismissal.

An order under s.391(2)(a) and (b) that the Respondent maintain continuity of the Applicant’s employment and the period of the Applicant’s continuous service with the Respondent.