Justice Perram has declined to stay an order for the
reinstatement of an employee after the deadline for reinstatement
had passed. Lynda Pykett sued her employer, TAFE NSW, for unfair
dismissal on the basis that hers was not a genuine redundancy. She
succeeded, and Commissioner McKenna ordered on 16 June that the
employee should be reinstated by 25 June. The employee notified
TAFE that she would present for work on 27 June. On 26 June, the
solicitors for TAFE notified the solicitors for the employee, after
hours, that the employee ought not return to work on 27 June since
TAFE would seek a stay of the orders.
These facts were not well received at the stay application.
Justice Perram observed that by failing to reinstate the employee
by the 25 June deadline, TAFE breached a court order and thereby
breached s 675(1) Fair Work Act 2009 (Cth), punishable by
12 months' imprisonment. Justice Perram considered that TAFE
should have brought the matter before the court directly when the
problem arose, instead of waiting until the following Monday.
Moreover, his Honour required TAFE to reinstate the employee
immediately. In any event, his Honour found that TAFE should have
sought the stay as soon as it had received the judgment of the
Commission instead of waiting for two weeks and, in so doing,
breached a court order.
Lessons for Employers
Employers should take away two points from this decision. First,
employers must obey reinstatement decisions. They cannot be ignored
on the basis that the employer intends to appeal; they must obtain
orders from the court to that effect. Second, employers should
instruct their solicitors immediately should they wish to appeal if
they wish to prevent the return of the employee to work.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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