Remedies for unfair dismissal; reinstatement

These passages from a recent successful unfair dismissal case are about the Commissioner’s reasoning for deciding that the employee should be reinstated to his former job but not awarded compensation due to the applicant’s failure to look for alternative employment between his dismissal and the hearing of the case.

“Remedy

[107] The applicant has sought reinstatement as remedy for his unfair dismissal.

[108] The question of remedy in respect of an unfair dismissal is the subject of Division 4 of Part 3-2 (ss. 390 – 393) of the Act. Section 390 of the Act is relevant to the consideration in this instance and is in the following terms:

“390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.”

[109] The Commission has carefully considered whether it would be appropriate to make Orders for the reinstatement of Mr Burley. The circumstances surrounding the dismissal of Mr Burley, particularly those aspects relating to his engagement in industrial activity as a delegate of the TWU, may have created some tension in the relationship between Mr Burley and Cleanaway.

[110] In this regard, the submissions of the employer included the following statement:

“By the very fact that the applicant has engaged in contentious covert unprotected industrial action over a period of time and held himself out to the general public as a Cleanaway employee in support of protected industrial action on the picket line, appearing on social media and other media platforms despite having been dismissed by the respondent, suggests that there is insufficient trust and confidence to make the relationship viable and productive.” 17

[111] There were a number of aspects of this submission which could not be established as facts. Firstly, there have been no findings made that the applicant engaged in unprotected industrial action. Importantly, the s. 418 application had been resolved by way of agreement, and without there being any factual findings or other conclusions determined. Secondly, any purported unprotected industrial action ceased as part of the resolution of the s. 418 application. Thirdly, there was no evidence provided about the applicant’s alleged appearances on social media or other media platforms, nor any material to establish just what vice was caused by these alleged social media appearances.

[112] Consequently, the employer promoted a degree of heightened artificiality about the tension created by the applicant’s engagement in industrial activity. There appeared to be some industrial activities and actions of the applicant which reflected a degree of miscalculated overenthusiasm, for which he acknowledged mistake and subsequently retracted. Both Cleanaway and Mr Burley should be mature enough to move on from those unfortunate events, and the particular circumstances do not support a conclusion that there has been a genuine loss of trust and confidence such that the employment relationship could not be successfully and harmoniously re-established.

[113] Further, although some circumspection should be exercised by Mr Burley in respect to his enthusiasm for participation in industrial activity, Mr Burley had every justification for being aggrieved by the unfair elements of his dismissal, particularly in respect to the employer’s strong motivation to achieve the objective of the dismissal because of his engagement in industrial activity as a delegate of the TWU.

[114] In addition, the absence of any evidence from the applicant’s immediate supervisor, Mr Mittiga, who would be the person involved in the day to day interactions between the applicant and his employer, further supports a conclusion that there has not been a genuine loss of trust and confidence which would prevent the successful re-establishment of the employment relationship. In order to assist with the successful re-establishment of the employment relationship, the Commission has decided to provide two recommendations.

[115] Unfortunately the Commission does not have the power to Order re-engagement of an unfairly dismissed employee into a demoted position or to specify terms that are to apply to the return to employment. However, given the nature of the applicant’s breach of the employer’s Lifesaving Rules and road traffic laws, the Commission recommends that; (1) the Parties agree to the applicant being re-engaged to perform the non-driving role of a “bin-puller/offsider” for a period not to exceed 3 months, and (2), the applicant ensure that all future driving work shall be undertaken either without the presence of a mobile phone, or only where a mobile phone is connected via Bluetooth and affixed by cradle or other holder/mounting for handsfree operation.

[116] In the particular circumstances of this case, the primary remedy of reinstatement would represent an appropriate and just rectification that reflected a dismissal that, although for valid reason, included significant procedural defects such that the applicant was denied natural justice. Therefore, reinstatement would be appropriate in all of the circumstances of this case.

[117] Consequently, for the reasons stated above, the Commission has determined that although the dismissal of the applicant was for valid reason, it was nevertheless harsh, unjust, and unreasonable. Further, in respect to remedy for the applicant’s unfair dismissal, Orders for his reinstatement and continuity of service, shall be made. However, the Commission has decided that, having regard for all of the circumstances, and particularly in the absence of any pursuit of alternative employment by the applicant, it would be inappropriate to make an Order to restore lost pay.

[118] Orders providing for the reinstatement of the applicant and for continuity of service will be issued separately. Accordingly, separate Orders [PR748023] providing for unfair dismissal remedy in these terms will be issued.”

Burley v Cleanaway Operations Pty Ltd T/A Cleanaway (2022) FWC 3055 delivered 24 November 2022 per Cambridge C