Unfair dismissal; reinstatement and compensation

The tactical perils of declining reinstatement

Where an employee wins an unfair dismissal case, but has unreasonably refused to accept an offer of reinstatement by the employer made after the dismissal,  he or she will almost always forfeit any entitlement to compensation.

“Ultimately, but for the refusal by the Applicant to return to work with the Respondent, the employment relationship between the Applicant and the Respondent would have continued. This is a situation where the Applicant could have avoided all of her losses for which compensation is now sought, by accepting the genuinely made reinstatement offer from the Respondent. Against the back drop of the primary remedy under the Act, which but for the Applicant’s refusal to accept, would have been available to her, I do not consider an order for compensation to be appropriate.

Taking into account the findings I have earlier made, I consider that an order for compensation is not appropriate.”


Gumwel v JBS Australia Pty Ltd (2017) delivered 19 June 2017 per Gostencnik DP