Remedies for unfair dismissal; reinstatement

Although reinstatement is the primary remedy for unfair dismissal (despite it very rarely being ordered), it is regarded as being inappropriate where the employer learns of an employee’s other acts of misconduct which would justify a denial of reinstatement.

“We accept that there is conceptual difficulty in the Commissioner’s reliance upon the likelihood that, if reinstated, Ms Chandler would be dismissed for misconduct a second time based upon the secret recording in circumstances where BBNT had submitted and the Commissioner had earlier accepted that the secret recording constituted a valid reason for the dismissal the subject of the application. It does not seem to us that the same matter could reasonably constitute a valid reason for two dismissals of the same person. In Nguyen v Vietnamese Community in Australia, 100 the Full Bench gave consideration to a range of circumstances in which the remedy of reinstatement may be inappropriate. One such circumstance includes where the reinstatement of an employee “…would almost certainly lead to a further termination of the employee’s employment because the employer has since discovered that the employee engaged in an act of serious misconduct which was only discovered after the employee’s termination…”.101 However, the footnote to that passage in Nguyen states that “Such discovery might also be relied upon by the employer as a valid reason for the employee’s dismissal which is the subject of an unfair dismissal remedy application.” We understand the passage from Nguyen, read together with the footnote, to identify alternative approaches that might be taken in an unfair dismissal application in relation to evidence of misconduct acquired post-dismissal: the employer might rely upon the evidence to justify the dismissal, or the employer might reserve its right to rely upon that evidence to dismiss again if the employee is reinstated. If the latter approach is taken, that might constitute a sound reason to conclude that reinstatement is not an appropriate remedy for an unfair dismissal. However, the Commissioner’s decision appears to impermissibly embrace both alternatives.”

Chandler v Bed Bath N’ Table  [2020] FWCFB 6714 – 21 December 2020 – Hatcher VP, Millhouse DP and Wilson C