Where the Fair Work Commission orders reinstatement to an employee found to have been unfairly dismissed, it may also order the restoration of lost pay and make an order to maintain the continuity of the employee’s employment (sec391 Fair Work Act 2009). However it does not follow that where the Commission orders reinstatement and the maintenance of continuity of service, that an order for lost pay will follow.
“Section 391(2) of the FW Act provides a discretion to the FWC to determine if it is appropriate for an order maintaining Mr Ballam’s continuity of employment and continuous service with Rio Tinto. I consider it appropriate in the circumstances to make an order maintaining the continuity of the Mr Ballam’s employment and continuous service with Rio Tinto.
Section 391(3) of the FW Act provides the FWC with a discretion to determine if it is appropriate to make an order causing Rio Tinto to pay Mr Ballam an amount for the remuneration lost, or likely to be lost, by Mr Ballam because of the dismissal. Notwithstanding a finding that an employee has been unfairly dismissed, an order restoring lost remuneration may not be appropriate. Mt Arthur Coal t/a Mr Arthur Coal v Goodall  FWCFB 5492 at . Compliance with safety rules, processes and procedures are critical to ensure employees and their colleagues go home fit and well to their families at the end of the working day or roster. Given Mr Ballam’s failure to diligently comply with all relevant safety practices and procedures, I do not think it is appropriate to make an order restoring remuneration lost, or reasonably likely to be lost, by Mr Ballam because of the dismissal.”
Ballam v Pilbara Iron Company (Services) Pty Ltd T/A Rio Tinto Iron Ore (2017) FWC 6248 delivered 28 November 2017 per Binet DP