Unfair dismissal; reinstatement, trust and confidence

This extract from a decision of the Fair Work Commission articulates the case law about the relevance of trust and confidence to the issue whether a remedy for an unfair dismissal should include an order for reinstatement of employment.

“A Full Bench of the Commission has identified the following propositions relevant to

the impact of a loss of trust and confidence on the appropriateness of an order for reinstatement:

  • 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 reemploy 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.”129

[111] The Full Bench concluded that, “[u]ltimately, 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.”130


Comer and others v Rentokil Initial Pty Ltd [2023] FWC 2032 delivered 15 August 2023 per Roberts DP