Termination – Reinstatement

Termination – Reinstatement

There is always much debate on whether to reinstate a worker who wins an unfair dismissal claim.

In a recent case involved separate underpayment claims by a number of teachers, their view was that management at the school discriminated against them and breached workplace laws. These claims were upheld, however a member of the Fair Work Commission suggested it would be unwise to recommend reinstatement as  “continuing ill-will between the parties” was likely.

He suggested the relationship was “so damaged that it cannot be re-established” and would cause disruption to students if the teachers returned to work. He also suggested they seek signed declaration from other teachers at the school identifying the potential for disruption and conflict.

The employees challenged this decision and the FWC Full Bench had to consider the issue that pursuing “workplace rights should not prevent reinstatement”.

Hearing the workers’ appeal application, the Full bench said “allowing the underpayment claim to prevent reinstatement was akin to taking prohibited adverse action.”

“It would be incongruous if the exercise of a workplace right operated as a barrier to reinstatement in an unfair dismissal proceeding in circumstances where Part 3-1 of the FW Act prohibits an employer from terminating the employment of an employee who exercises a workplace right,” they said.

“The fact that the [teachers] have pursued an underpayment claim and that this has given rise to a degree of acrimony between the parties is not a matter which should be taken into account in determining whether reinstatement is appropriate.”

The bench noted that employers claiming a breach of trust and confidence bear a “substantial onus” to show that their view is “soundly and rationally based” and that reinstatement would be inappropriate, as opposed to just undesirable or difficult.

An employer’s reluctance to shift from its view, despite a tribunal finding no evidence of misconduct, would not constitute a sound basis, the bench said.

Similarly, the fact that reinstatement might be “difficult or embarrassing” would not necessarily suffice.

“Ultimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive,” the bench said.

Nonetheless, it refused the workers leave to appeal, finding that the other reasons initially given for denying reinstatement were sound and rational and sufficient on their own.

The damage to the relationship between the parties was evident and coupled with the potential for conflict between the teachers and their colleagues if they returned to work, provided a “proper basis” for rejecting reinstatement, the bench said but not the fact they had outstanding claims for money.

Michael O'Shaughnessy

Michael is a specialist in all things HR. With vast HR experience in the USA and Australia, Michael brings a wealth of knowledge and advice to HR Central. When he's not blogging for HR Central you can find him out for dinner in one of Melbourne's newest restaurants.

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