Dismissals and Reinstatement – Why care should be taken.

January, 2015

By Clayton Payne

As many of you would be aware, the primary remedy for a successful statutory unfair dismissal claim under the Fair Work Act is reinstatement. While in practice, this rarely happens, when will an order for reinstatement be made?

In the recent appeal decision of a Full Bench of the Fair Work Commission in Brambleby v. Australia Postal Corporation T/A Australia Post, while the appellant was successful in arguing that the termination of his employment was “unfair”, his further submission that he should be reinstated to his employment was rejected.

The appellant had been dismissed by the respondent some four years before the appeal was heard, in circumstances where it had been claimed that the appellant had distributed inappropriate material using Australia Post’s email system.

It was alleged that the appellant used the respondent’s computer system to send inappropriate material to his home address on one occasion, and on another occasion the appellant sent an email to a co-worker containing 38 sexually explicit colour photographs.

Evidence was given that the respondent had relevant policies in place dealing with sending inappropriate material using its email system, and that the appellant was aware of these policies and the consequences of breaching them.

The appellant had worked for the respondent for many years prior to the termination of his employment. In his position, the appellant supervised between five and seven employees, and had also acted previously in the position of area coordinator. It was submitted that apart from the matter leading to the termination of his employment, the appellant had an unblemished disciplinary record with the respondent.

The Full Bench found that reinstatement was not prevented on the basis of the respondent’s assertion that it had lost trust and confidence in the appellant. That said, the Full Bench went on to find that reinstatement could not be ordered in these circumstances because it:

  1. would be inappropriate to return the appellant to a supervisory position noting the nature of his breach; and
  1. did not have the power to order that he be reinstated to a demoted position (which was indeed open to the respondent as an alternative to termination).

The Full bench went on to award to the appellant the maximum amount of compensation available under the Fair Work Act.

Conclusion

In this case, reinstatement was not ordered, but matters could have been different, particularly if the appellant had not worked in a supervisory role.

While this decision turns on its own facts, it highlights the need for employers to:

  1. ensure that appropriate workplace behaviour policies are put in place, and that staff are made aware of the consequences of a breach; and
  1. take care before a decision is made to terminate the employment of an employee. Consideration should be given as to whether appropriate legal advice should be obtained before any termination is effected.

Contact Mills Oakley

For more information, please contact:

Ross Levin | Partner
Melbourne
T: +61 3 9605 0070
E: rlevin@millsoakley.com.au

Malcolm Davis | Partner
Sydney
T: +61 2 8035 7932
E: mdavis@millsoakley.com.au

Adam Lunn | Partner
Melbourne
T: +61 3 9605 0868
E: alunn@millsoakley.com.au

Lisa Anaf | Partner
Melbourne
T: +61 3 9605 0857
E: lanaf@millsoakley.com.au

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