Is reinstatement a real possibility for a worker who has brought a successful unfair dismissal claim?
What sort of matters will the Fair Work Commission consider in this regard?
This issue was considered recently in the matter of Wunungmurra.
The Facts and Findings
The worker in question was subject to a finding that he had been unfairly dismissed by the regional council which employed him.
In making her original findings, Commissioner Bissett of the Fair Work Commission (Commission) found that while the worker's conduct was not beyond reproach, it did not provide a valid reason for dismissal. This included for example a number of "timekeeping" incidents.
The worker in this case sought reinstatement.
The Commission found that even though there was evidence to support a finding that the worker had failed to follow directions, it did not support a finding that this was a chronic issue.
The employer argued that part of the reason as to why the worker should not be reinstated was because he had been violent and threatening in the workplace.
Evidence was given by a co-worker that she had witnessed one occasion, some time before the dismissal, where the worker allegedly wanted to fight another co-worker in a meeting room (the Commission found that there were no reported similar instances involving the worker after that time). The co-worker also gave evidence of having heard comments from others, apparently supporting the employer's claim that the worker was violent and threatening.
To the extent that any such alleged violent or threatening incidents involved yet another co-worker in particular, it was noted that this co-worker had given evidence that they were resolved by talking the issues through with the worker, and that in any event, this co-worker had also left the employ of the employer.
It was also noted that the worker tendered a petition from other employees supporting his reinstatement. The Commission held that while the petition could not be tested, nor could the hearsay evidence referred to above, and so neither aspects of the evidence assisted the Commission in reaching its decision.
The Commission found that overall, the evidence did not support a finding that the relationship of trust and confidence between the worker and employer had been irreparably damaged. In this regard, the Commission noted that in considering the issue of "trust and confidence" in the context of this matter, it was concerned with what was essential to make an employment relationship workable.
The Commission also found that there were limited employment opportunities in the place where the worker resided. While it was accepted by the Commission that there were a number of employers in the area, the evidence suggested that the jobs with these employers were specialised or technical in nature, and the evidence did not support a finding that the worker could undertake these roles. The area where the employment was located was also found by the Commission to be a relatively small community where the worker had very strong ties.
In the circumstances, the Commission made orders reinstating the worker to his position. It reduced the amount of compensation it might have otherwise ordered to be paid to the worker between the time of his dismissal and the time of reinstatement because there was no evidence that he had sought further employment within his community during this time.
This case demonstrates that there are instances where the Commission will order reinstatement. In this case, the Commission formed the view that the worker had a strong connection with this remote community where he worked and lived, and that the unavailability of other employment opportunities warranted reinstatement in the circumstances. The Commission does however have a discretion in such matters. As such, employers need to be mindful that when they face a termination situation, it might not be just a case of paying "go away" money or meeting an order for compensation in the event of an unfair dismissal claim. The employer may also have to accommodate the return of the worker.
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.