Unfair dismissal and reinstatement of job

Reinstatement of employment as a remedy for unfair dismissal is very rare; here is an extract from a recent decision of the Fair Work Commission where just that occurred,

“Consideration

[54] The Fair Work Act 2009 (Cth) (the Act) provides the following with respect to remedy:

“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.

Note: Division 5 deals with procedural matters such as applications for remedies.”

Reinstatement

[55] Section 390(3) of the Act provides that the Commission must not order the payment of compensation unless it is satisfied both that reinstatement of the person is not appropriate, and that it considers an order for the payment of compensation to be appropriate in all the circumstances of the case.

[56] The question of whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one. 40 The grant of a remedy for an unfair dismissal is not automatic or a right.41

[57] The Commission must determine if reinstatement is appropriate before considering any other remedy. It is not until the Commission is satisfied that reinstatement is inappropriate that compensation can be considered. 42 Reinstatement might be inappropriate in a range of circumstances, such as where there has been a loss of trust and confidence such that it would not be feasible to reestablish the employment relationship43 or 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.44

[58] Determining the question of whether reinstatement is appropriate involves the exercise of discretion and the balancing of relevant considerations based on the evidence. A loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, that is providing the loss of trust and confidence is soundly and rationally based. 45

[59] In Nguyen 46the Full Bench conveniently summarised the approach required as follows:

“[27] The following propositions concerning the impact of a loss of trust and confidence on the question of whether reinstatement is appropriate may be distilled from the decided cases:

  • Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement.
  • Each case must be decided on its own facts, including the nature of the employment concerned. There may be a limited number of circumstances in which any ripple on the surface of the employment relationship will destroy its viability but in most cases the employment relationship is capable of withstanding some friction and doubts.
  • An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion.
  • The reluctance of an employer to shift from a view, despite a tribunal’s assessment that the employee was not guilty of serious wrongdoing or misconduct, does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged or destroyed.
  • The fact that it may be difficult or embarrassing for an employer to be required to re-employ an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate.

[28] Ultimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party.” [footnotes omitted]

[60] If a loss of trust and confidence does exist, it is not necessarily conclusive that reinstatement would be inappropriate. A loss of trust and confidence is only relevant where it is soundly and rationally based, otherwise it is irrelevant to whether reinstatement is appropriate.

[61] Metro Trains argues that Mr Lawrence should not be reinstated because he has lost trust and confidence in his employer and the working relationship is broken. In support of its argument that Mr Lawrence has lost trust and confidence in his employer Metro Trains rely on an incident that occurred in September 2017. The incident occurred when Mr Lawrence’s application for a role he had applied for was unsuccessful. Mr Lawrence responded to the notification that he had been unsuccessful by writing to the recruitment team stating amongst other things that they were useless, the process was corrupt and being run by children. Metro Trains submit that Mr Lawrence did not withdraw his negative views he expressed about Metro Trains or the recruitment process.

[62] Although Metro Trains considered, and I agree, the communication was inappropriate, as a consequence of having the matter brought to his attention by Mr Ryan Martin, Acting Depot Train Driver Manager-Southern Group, Mr Lawrence apologised to the recipients of his email admitting he had made a “big mistake” and he had dealt with the rejection of his application in the wrong way. Mr Lawrence sent a message by text to the recipient of his email expressing his remorse and apologising for his outburst. Mr Martin considered that Mr Lawrence had realised and accepted his error and sought the opportunity to correct his mistake. Mr Martin directed Mr Lawrence to have a conversation with the recipient of the email to explore the “right path to move forward” which Metro Trains acknowledges did occur.

[63] The incident relied on occurred in 2017, Mr Lawrence expressed to Mr Martin that he was angry with the system and not the individual. Mr Lawrence has since apologised and expressed remorse for his actions and there is no evidence of a repeat occurrence. I am not persuaded by Metro Trains’ submission that the email Mr Lawrence sent is “momentous” in providing an insight into how Mr Lawrence currently views Metro Trains. I am also not persuaded that an event that occurred three years prior to an employee’s dismissal, involving an employee becoming frustrated at not being considered for an internal role because they held a belief at the time that they weren’t being genuinely considered, is sufficient enough to establish that the relationship with his employer has broken down to the extent that it would present as a barrier to reinstatement.

[64] Metro Trains also rely on an incident that occurred in September 2019 which resulted in Mr Lawrence being issued with a first and final warning. I addressed the events as described on that day in the Substantive Decision and do not intend to repeat them here. It was accepted by Metro Trains that Mr Lawrence made a genuine apology for his actions that led to the first and final warning. Metro Trains quarrel with the view expressed by Mr Lawrence at paragraph [103] to [106] of his witness statement filed in the substantive proceedings in which he states;

“[103] What upsets me is that I got a first and final warning for breaking policies and procedures but it is obvious that if the station assistant had called for help earlier then Metrol [i.e. the train controller] could have put out an emergency call to all the trains in the vicinity of Carnegie station to stop and this all could have been avoided.

[104] This is especially so given the fact the station assistant told me that the young guy threatening self-harm was well known to him and Metro. But I was the one who had to wear the blame and punishment.

[105] It is quite apparent that Metro believes that following its hard and fast policies is more important than saving a life.

[106] I asked management about what a driver should do if they saw a female being assaulted on a platform late at night when no one else was around? Following their procedures, we would be expected to stay inside our train cabs and watch, without intervening as a person is attacked. The same policy would apply if a wheelchair-bound person accidentally fell of the platform and fell into the pit. This has happened several times over the past year. We are told that under no circumstances would we be allowed to offer assistance without first contacting the train controller, which usually can take up to seven or more minutes for them to respond. All the while, the injured passenger could receive no help from a driver because the driver would be fearful of losing his job because he didn’t follow a restrictive and flawed internal policy.”

[65] Metro Trains submit that paragraph’s [103] to [106] of Mr Lawrence’s statement confirm that Mr Lawrence’s view is that he should not have been issued with the final warning. I do not share Metro Trains’ interpretation of Mr Lawrence’s submission. Mr Lawrence is clearly expressing a view that Metro Trains may at some time wish to consider. Mr Lawrence does not state that he is against Metro Trains or that he would not comply with its policies or procedures in the future. Mr Lawrence simply expresses a view that the policies have been written in terms that when applied may see the practical outcome at times lead to further harm or injury occurring.

[66] Mr Lawrence did not consider himself blameless. Mr Lawrence prevented a suicide from occurring and in doing so he acknowledged he was in breach of Metro Trains’ policies. Mr Lawrence simply states that whilst he accepts the need to comply with Metro Trains’ policies, he made the decision on that occasion to prevent the death of a member of the public which resulted in a breach of policy for which he received a first and final warning. At the time, Mr Lawrence held the view that in saving the member of the public’s life a breach of policy was unavoidable in the circumstances and the policy doesn’t fully contemplate circumstance of the kind he was confronted with on that day. Mr Lawrence accepted the first and final warning.

[67] Policies and procedures are often written by persons who have knowledge or experience of either the legislative requirements or the work performed in the specific field to which that policy or procedure applies. Policies and procedures are written to provide a set of rules or principles that govern or direct the behaviour and conduct of employees and others that they apply to. Whilst those policies and procedures are generally technically correct, rarely do organisations engage suitably qualified behavioural experts to ensure that the policies once implemented will produce the desired outcome. Whilst I do not suggest that this is the case at Metro Trains, it would be ominous for the Commission to encourage a circumstance that would lead to the silencing of an employee’s view about the practical effect, failings or success of any procedure or policy. If an employee from the field cannot provide feedback on the practical application of a policy or procedure, then an employer may in some circumstances be unaware of the policy or procedure’s potential failings.

[68] I am not satisfied that the statements made in the substantive proceedings by Mr Lawrence establish that there has been a loss of trust and confidence in the employment relationship that would lead to a finding that reinstatement would be inappropriate in the circumstances.

[69] Given Mr Lawrence’s past experience with a disciplinary investigation into his conduct it is unsurprising that once he was notified that he had been stood-down he proceeded to vigorously defend himself. In doing so Mr Lawrence wrote to the General Manager of Operations, Mr Wegert. Metro Trains take particular issue with the point that Mr Lawrence finds it “appalling that Metro management constantly informs us of their corporate policies that ‘Safety and Zero harm to its employees is Number One when it is blatantly obvious that this is just meaningless jargon to appease the Fair Work Act and nothing else”. It submits that the statements of Mr Lawrence are fatal to any assertion which Mr Lawrence might make about having trust and confidence in Metro Trains.

[70] Regardless of Mr Lawrence’s views about some of Metro Trains managers’ ability to perform their duties or otherwise, I have considered Mr Lawrence’s statement in the context of the situation and taking into account the Substantive Decision in which I found that there was no valid reason for Mr Lawrence’s dismissal. I am not satisfied that Mr Lawrence’s views at the time he was defending himself against potential disciplinary action and his subsequent application, in which he was successful, are sufficient reasons to rely on and do not demonstrate a loss of trust and confidence in the terms proposed by Metro Trains.

[71] Metro Trains submit Mr Lawrence is not fit to return to work because train drivers are rail safety critical workers and as a transport operator Metro Trains has a legal obligation to make sure that there are systems in place to protect the safety of the public and the metropolitan train network. Part of that responsibility is knowing that train drivers are fit (physically and mentally) to perform their duties safely. Metro Trains submit that Mr Lawrence provided a medical certificate which states that he was unfit for duties between 12 to 26 August 2020 and has provided statements as to the impact of the fatalities on his mental fitness. Further, Metro Trains submit Mr Lawrence has made a WorkCover claim which he may continue to pursue. It submits from the available evidence he is seemingly not fit to perform work as a train driver.

[72] The medical evidence before me is that Mr Lawrence was unfit for duty from 12 August 2020 up to and including 26 August 2020. There is no evidence before me that satisfies me that Mr Lawrence is still medically unfit. Mr Lawrence, as with any applicant who has been dismissed from their employment and during the course of defending a claim, felt stressed and upset by the circumstances that occurred. However, there is no medical evidence before me that the stress experienced by Mr Lawrence presents a barrier to being reinstated. Further, I note that although Mr Lawrence gave evidence about the impact of the deaths he experienced whilst performing his duties, Mr Lawrence remained employed and continued to perform his normal duties after those events. I am not persuaded that Metro Trains can rely on Mr Lawrence’s rejected WorkCover claim, which it opposed, as a reason Mr Lawrence would not be fit to return to his normal duties.

[73] There is no medical or other evidence before me that satisfies me that Mr Lawrence is unable to perform the inherent requirements of his former position. Metro Trains relies on submissions that Mr Lawrence has lost trust and confidence in Metro. Metro Trains has not succeeded in persuading me that Mr Lawrence has lost total trust and confidence in Metro Trains so as to have an effect on the likelihood of a productive working relationship. Mr Lawrence acknowledges he had previously breached Metro policies and it is likely any further breach would result in Mr Lawrence being dismissed. Upon being reinstated Mr Lawrence must understand that adverse behaviours or conduct towards his employer may also result in further disciplinary action. I am satisfied that an order for reinstatement is appropriate in the circumstances and will now consider if it is appropriate to make an order for the remuneration lost.

[74] I have considered Mr Lawrence’s length of service and I am satisfied that continuity of service should be ordered. I am also satisfied that the period should count towards Mr Lawrence’s continuous service.

[75] Mr Lawrence’s evidence is that he has applied for over 80 positions however he has been unable to obtain alternative employment. Mr Lawrence submits consequently he has not received any other income since he was dismissed from his employment by Metro Trains.

[76] As set out at [2] above, the parties were directed to provide submissions addressing remedy. In response Mr Lawrence has provided material to substantiate his efforts to apply for jobs, commencing from 12 January 2021. There is no material before me of any efforts prior to that date. I note in his witness statement of 21 October 2021, affirmed on the first day of hearing on 23 November 2021, Mr Lawrence states amongst other things that he could not look for employment due to his present stress situation. I also note Mr Lawrence remained unfit for work up until 26 August 2020 and on the material before me commenced applying for other employment on 12 January 2021. Mr Lawrence provided evidence of some of the roles he has applied for since 12 January 2021 and submits although he has applied for more roles he is unable to provide evidence because the data for those roles is automatically removed after a few months.

[77] There is no evidence before me to suggest Mr Lawrence was unfit for work during the period from 26 August 2020 to the 12 January 2021. Further there is no evidence before me that Mr Lawrence has made a reasonable effort to obtain other employment during the period from his dismissal to 12 January 2021.

[78] Metro Trains submit that Mr Lawrence lodged and intends to pursue his WorkCover claim and submits that, if his claim is accepted and he is paid weekly payments under that scheme, these will be amounts which are counted as remuneration by the Commission. It submits that if this potentiality is not built into any order for compensation by the Commission then Mr Lawrence could receive a windfall by being paid both by Metro Trains and its WorkCover insurer for the same time period. Metro Trains submit any order for compensation should take into account any payments made to Mr Lawrence should his WorkCover claim be accepted.

[79] Having considered that reinstatement is appropriate I exercise my discretion under s.391(3) and order that Metro is to pay Mr Lawrence an amount of remuneration lost, or likely to have been lost by Mr Lawrence because of his dismissal. Mr Lawrence has lodged a WorkCover claim. If it transpires that Mr Lawrence is found to have been unfit due to a work related injury in the period following his dismissal and he receives compensation, then Mr Lawrence would be double dipping if he were to be paid compensation for the same period for which I make an order to restore lost pay. Therefore, an order to restore lost pay could not relevantly arise for a period during which Mr Lawrence is paid compensation for a work related injury.

Conclusion

[80] Mr Lawrence is to be reinstated to the position he held immediately before the dismissal. The reappointment should occur within 30 days of the date of the order giving effect to this decision.

[81] Having considered it appropriate to restore Mr Lawrence’s lost remuneration, Metro Trains is to pay Mr Lawrence his lost pay for the period from 12 January 2021 (inclusive) to the date of his reinstatement, subject to applicable taxes and inclusive of appropriate superannuation to be paid to Mr Lawrence’s nominated superannuation account. I have determined the amount of pay should be limited to that period, having regard to the reasonable efforts that should have been taken to obtain other employment during the period from Mr Lawrence’s dismissal to 12 January 2021. Any payments on termination of accrued by untaken annual leave will also need to be taken into account. The outcome of the WorkCover claim, which is not known at the time of issuing this decision will also need to be considered and taken into account. Should Mr Lawrence have proceeded with his claim and been successful, any compensation paid to Mr Lawrence is to be offset against the amount Mr Lawrence is otherwise to be paid for lost remuneration.”

Taken from Lawrence v Metro Trains Melbourne Pty Ltd (2021) FWC 3789 delivered 8 September 2021 per Harper-Greenwell C