This is an extract from a recent unfair dismissal decision of the Fair Work Commission which concludes with the Commission ordering the reinstatement of the applicant employee but with no award of compensation.
“Conclusion
[56] I have made findings in relation to each matter specified in s.387 of the FW Act. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.38
[57] A dismissal may be:
• unjust because the employee was not guilty of the alleged misconduct
• unreasonable because the evidence or material before the employer did not support the conclusion
• harsh on the employee due to the economic and personal consequences resulting from being dismissed, or
• harsh because the outcome is disproportionate to the gravity of the misconduct (the punishment does not fit the crime).39
[58] Having considered each of the matters specified in s.387 of the FW Act, I am not satisfied that the dismissal of Muaz was unjust or unreasonable. I have found there was a valid reason for Muaz’s dismissal, and I have found that Step Up provided procedural fairness to Muaz through his guardian Mr Khan.
[59] Muaz’s employment ended due to an unfortunate dispute about the new Service Agreement between Mr Khan and Step Up. The consequence of that regrettable dispute is that Muaz has lost the opportunity to perform a rewarding and relatively niche role with Step Up. I find that Muaz’s dismissal was harsh because of his unique personal circumstances and because Muaz did not personally do anything wrong in relation to his dismissal. The dismissal arose due to conduct by Mr Khan as his legal guardian.
[60] I find Muaz was unfairly dismissed because his dismissal was harsh in all the circumstances.
Remedy
[61] The remedies available where an employee has been unfairly dismissed are reinstatement, or compensation in lieu of reinstatement. A compensation order can only be made if the Commission is satisfied that reinstatement is inappropriate.40
[62] In considering an appropriate remedy in a case of unfair dismissal, regard must be had to the legislative object set out in s.381 of the FW Act. This includes an emphasis on the remedy of reinstatement41 and on ensuring that a “fair go all round” is accorded to both the employer and employee concerned.42
[63] Muaz seeks reinstatement to his previous part-time position as Assistant Mentor where he worked eight hours per week for Step Up. Step Up opposes reinstatement. The basis of the opposition is that Step Up has filled Muaz’s Assistant Mentor role and it is not able to accommodate Muaz’s return given its current resources.
[64] I am not satisfied that there are operational reasons which make reinstatement inappropriate. Ms Lee provided oral evidence about the operational issues but did not support this evidence with any financial information or detailed evidence about the operations of Step Up. Muaz only works eight hours per week and is paid at a supported wage rate. Muaz has been assessed to be able to work productively for Step Up at the supported wage rate. Step Up will also presumably be able to access funding from the NDIS to assist in managing Muaz’s employment, now that Mr Khan has signed the new Service Agreement. I cannot accept in all these circumstances that the negative operational or financial impact for Step Up will be to an extent that justifies a conclusion that reinstatement is inappropriate.
[65] I am confident that Muaz can recommence performing his productive duties for Step Up without issue given he worked there without issue for around two years prior to being dismissed. I consider this factor weighs against finding that reinstatement is inappropriate.
[66] The conflict between Mr Khan and Step Up is relevant to the assessment of whether reinstatement is inappropriate. I consider the potential for further conflict weighs marginally in favour of finding that reinstatement is inappropriate. I consider the conflict only marginally weighs against reinstatement being appropriate because I am confident Mr Khan will approach how he raises any concerns about the employment differently in the future, having seen that his previous actions led to Muaz losing a very rewarding job.
[67] I consider the potential for negative operational impacts for Step Up arising from Muaz’s reinstatement can also be reduced by providing Step Up with a lengthy period of notice before Muaz recommences work. I consider a reinstatement date of 1 July 2025 will provide Step Up with a considerable amount of time to implement arrangements to minimise any negative consequences of Muaz being reinstated. I appreciate Mr Khan and Muaz would prefer not to have to wait that long for Muaz to return to work. However, I consider the priority is Muaz being reinstated and for Step Up to have enough time to ensure the employment can be viable for the future.
[68] I find that reinstating Muaz to the part-time position of Assistant Mentor with Step Up is not inappropriate.
[69] I am satisfied it is appropriate to make an order requiring Step Up to reinstate Muaz to the part-time Assistant Mentor role effective 1 July 2025.
[70] I will also make an order to maintain the continuity of Muaz’s employment and the period of his continuous service with Step Up pursuant to s.391(2) of the FW Act. I consider the order is appropriate to ensure Muaz is not further disadvantaged by what I have found was an unfair dismissal.
[71] Muaz has lost income since being dismissed by Step Up, which may justify the making of a compensation order. The Commission may only make a compensation order if it considers it appropriate to do so and can only make an order that the Commission considers appropriate.43 Mr Khan confirmed during the hearing that Muaz does not seek compensation for income lost between his dismissal and his reinstatement. I am satisfied that a compensation order is not appropriate in the unique circumstances of this case.
[72] Orders reflecting my decision will issue separately.44”
Khan v Step Up Disability Services Pty Ltd [2025] FWC 922 delivered 2 April 2025 per Crawford C