In an unfair dismissal application, the Fair Work Commission (FWC) has the power to order that the dismissed worker be reinstated to their job. In fact, reinstatement is the “primary” remedy for an unfair dismissal and compensation will only be awarded if the FWC considers that reinstatement is not appropriate.
In the great majority of cases, a person who has been unfairly dismissed does not want to return to their job. However, that is not always the case. For example, if the dismissal has not damaged the relationship between the worker and their employer and/or if the worker thinks that they will be unable to find other suitable employment (perhaps because of their age, or where they live, or for other reasons), the dismissed worker might seek reinstatement.
Nevertheless, even if the dismissed worker does want to “get their job back” the FWC will only order reinstatement if it is appropriate to do so. Sometimes, even if the worker wants to be reinstated, the employer might argue that reinstatement is not appropriate, and the FWC might agree.
For example, the FWC might conclude that reinstatement is not appropriate if certain relationships have been damaged by the dismissal and/or the events leading up to the dismissal and that there is no ability to place the worker in a different team or site, perhaps because the employer is too small. Where an unfairly dismissed worker is seeking reinstatement, the FWC will not generally accept an argument by the employer that it is inappropriate to reinstate them solely because someone else has been employed to fill the worker’s position.
In a recent case, Andersons Special Counsel in Employment Law, Margaret Kaukas represented a public sector employee who was dismissed after over 25 years’ service. Margaret argued on behalf of her client that the dismissal was unfair.
Here’s an overview of the situation:
- Margaret’s client was seeking reinstatement because she was an older worker and the public sector was the main employer of her profession in the state.
- The worker reasonably believed that, even if she won her unfair dismissal claim, it would have been extremely difficult to find other work.
- The employer failed to make any offer to resolve the matter at the conciliation stage of the proceedings.
- As a result, given that the stakes were so high, the worker decided to proceed to a formal arbitration hearing or “trial”.
Often, it is not economic to proceed to a formal arbitration hearing or “trial” in an unfair dismissal matter because the maximum compensation payable is the lesser of the equivalent of six months wages or around $69,000.00 (and in many successful cases, considerably less than this is awarded) and as the unfair dismissal jurisdiction is a “no costs” jurisdiction, the worker has to pay their legal costs out of any compensation received, even if they win their case.
For these reasons, when the dismissed worker is seeking compensation rather than reinstatement, there is always a risk that the worker’s legal costs will exceed the compensation they recover in a trial.
However, in this case, as Margaret’s client was seeking reinstatement, she was prepared to proceed to trial.
"This was an extraordinary outcome given the circumstances..."
Happily, after Margaret and her client prepared the matter for trial, and provided their witness statements, the employer agreed:
- to reinstate the worker to her job; and
- to compensate the worker for wages lost between the date of her dismissal and the date of her reinstatement.
This was an extraordinary outcome in the circumstances, especially considering that the employer conceded the matter without the worker having to proceed to trial.
This case demonstrates that, though unusual, it is possible for an unfairly dismissed worker to win their job back.
Margaret is a very experienced, committed and passionate advocate and fights hard for her clients. If you believe you have been unfairly dismissed, or require advice about any matter relating to employment, please contact Margaret Kaukas.
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