Reinstatement is the primary remedy in unfair dismissal cases under the Fair Work Act 2009 (Cth), but as two articles in the latest edition of Workplace Review (Summer 2016, Vol 7 Pt 1) make clear, more often than not monetary compensation is the remedy provided in successful claims.
One reason for this suggested by James Macken, is that reinstatement is often found to be impracticable because the dismissed employee’s position has already been filled. A solution suggested by James is that the Fair Work Commission consider using its interim decisions power under s 589 of the Fair Work Act to order interim reinstatement where appropriate. Such an interim order may “preserve the practicability of reinstatement as a final remedy” pending the outcome of unfair dismissal proceedings.
James considers the applicable principles surrounding possible interim reinstatement: that there be a prima facie case and that the balance of convenience favours the grant of interim relief.
He provides compelling practical arguments in favour of interim reinstatement, citing examples such as the doctor who works in the only hospital in a city, and the career federal public servant who lives in Canberra and for whom reinstatement is the only valuable remedy. He suggests interim reinstatement may be considered in any case where the applicant’s job might be permanently filled – “leaving little prospect of reinstatement” – before the outcome of the proceedings are determined.
McCallum Medal winner Claire Limbach argues more generally for retaining reinstatement as the primary remedy in unfair dismissal cases, particularly in face of a Productivity Commission suggestion that the remedy not have primacy.
Claire suggests that removing the primacy of reinstatement may enable employers to more readily dismiss an employee unfairly, in the knowledge that they may only have to pay modest compensation should the unfair dismissal application succeed.
Claire also considers arguments for reinstatement that go to the question of the inherent dignity and worth of employment for humans: social inclusion; contribution to society and family; structure; and financial security.
These articles and much more in the current edition – Summer 2016 (Vol 7 Pt 1) – of your journal of people, practice, cases and trends in workplace relations, Workplace Review. Available now!
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