So you’ve lodged an unfair dismissal claim to the Fair Work Commission (the ‘Commission’). After a lengthy investigation, the Commission returned a decision in your favour. You might be thinking “great, but what now?”. Well, the Commission can make an order for reinstatement or compensation.
In this article, we will be discussing what is an order for reinstatement and when would it be an inappropriate remedy.
What does an order for reinstatement mean?
An order for reinstatement aims to put you back in the position you were in prior to the unfair dismissal.
Pursuant to section 391 of the Fair Work Act 2009 (Cth), the Commission can order your former employer to:
- reappoint you to the position you held immediately prior to the dismissal; or
- appoint you to another position on terms and conditions no less favourable than those on which you were employed immediately prior to the dismissal.
When Will An Order For Reinstatement Deemed Inappropriate?
Despite being the primary remedy when an unfair dismissal has occurred, reinstatement is not always the appropriate remedy.
In order to determine whether reinstatement would be inappropriate, the Commission will consider whether:
- there has been a loss of trust;
- you are suffering from an illness or injury; and
- a position is available.
The existence of any one of the aforementioned factors suggests that reinstatement might be inappropriate. Note that this is not an exhaustive or determinate list for consideration. The Commission will make its decision having regard to the entire situation.
Loss of Trust and Confidence
When an employer is forced to re-employ an employee that they believe to have committed a serious wrongdoing, loss of trust and confidence becomes an issue. The Commission must determine whether the employer-employee relationship can be mended or if it is a lost cause. If the relationship has been damaged beyond repair, it would be counterproductive to force you two to maintain a relationship.
Incapacitated by Illness or Injury
The Commission will also consider whether you are suffering from a serious illness or injury. If an illness or injury prevents you from carrying out your contractual duties, it might be impractical to order reinstatement.
The Commission would consider matters such as:
- What are the core tasks pertaining to your position;
- Whether it is practicable and reasonable to modify work arrangements; and
- The likelihood of you recovering from the illness or injury.
No Positions Available
Furthermore, if your employer cannot offer you your old position back (or a comparable position), reinstatement would be inappropriate. It would be inappropriate for you to have to take a position that was beneath your qualifications or one that came with less favourable terms and conditions.
What Other Orders Can The Commission Make?
In addition to an order for reinstatement, the Commission can also issue an order to maintain continuity or to restore lost pay.
Order to Maintain Continuity
An order to maintain continuity is when you are regarded to have been an employee during the period between your dismissal and when you were re-employed. This ensures that the unfair dismissal does not adversely affect your employment benefits.
Order to Restore Lost Pay
Alternatively, an order to restore lost pay is an order for your employer to reimburse you for remuneration lost over the dismissal period.
When making such an order, the Commission is to consider:
- whether you received an income from other employment during the dismissal period; and
- the amount that you would have earned from your position during the dismissal period, had you not been dismissed.
Conclusion
When the Commission finds that an unfair dismissal has occurred, they must determine what is the appropriate remedy. The default remedy is an order for reinstatement. Only when the Commission deems that reinstatement would be inappropriate would compensation be considered.
