Cleared of every allegation, then refused his job back, until the appeal

What happened

Mr Wally Moszko worked for Simplot Australia as a shift feeder at its potato processing plant in Ulverstone, Tasmania, for about 23.5 years. He was also a union delegate and a work health and safety representative.

Part of a shift feeder's job is a "bunker drain": lowering the potatoes in the hoppers and flushing them so the feeder can see there is no old or spoiled product at the bottom. One had to be done every 12-hour shift, but not by every feeder. The feeders on a shift shared the task and chose when to do it, and the time was written on a log sheet.

Simplot made five allegations about two shifts on 20 and 21 October 2020. In short, it said he had reported a bunker drain he never did, was complicit in a false log sheet entry, gave his team leader an untruthful answer, skipped the drain on 20 October and falsified that day's log sheet. He was dismissed on 20 November 2020.

The first decision

Mr Moszko made an unfair dismissal claim and asked for his job back. Commissioner Harper-Greenwell found that none of the five allegations was substantiated. On 21 October he had called the control room to say he was starting a bunker drain, which was common practice, and then a co-worker told him the drain had already been done. The Commissioner found it appeared the co-worker had lied, and that the co-worker had filled in the log sheet. For 20 October, there was no reliable evidence that Mr Moszko had given anyone false times.

The dismissal was harsh, unjust and unreasonable. Even so, the Commissioner refused to reinstate him. She reasoned that why the drain was not done on 20 October remained "unresolved", that Simplot no longer trusted him to work unsupervised, and that further allegations would be put to him if he returned. She ordered $9,199.01 in compensation plus superannuation instead. Mr Moszko appealed.

The legal test: reinstatement comes first

Under s 390 of the Fair Work Act 2009 (Cth), the Commission can order reinstatement (putting the worker back in their old job) or compensation. But s 390(3) says it must not order compensation unless it is satisfied that reinstatement is inappropriate. Getting the job back is the starting point.

Employers often argue that reinstatement is inappropriate because they have lost trust and confidence in the worker. The Full Bench adopted settled principles on this. Loss of trust is relevant but not decisive. It must be soundly and rationally based, and the party claiming it bears the burden of proving it. An employer's refusal to change its view after the Commission has cleared the worker is not a sound basis, and the fact that taking the worker back may be difficult or embarrassing does not necessarily show a loss of trust. Most employment relationships, the Full Bench said, are "capable of withstanding some friction and doubts".

Appeals from unfair dismissal decisions need permission, which is granted only if it is in the public interest. Because deciding whether reinstatement is inappropriate involves a broad discretion, the Full Bench could intervene only if the Commissioner had made a recognised error, such as relying on an irrelevant consideration.

What the Full Bench decided

The Full Bench found two such errors. First, the "unresolved" events of 20 October left Simplot with no more than a suspicion that Mr Moszko might have given the wrong times, and holding such a suspicion was not a sound or rational basis for a loss of trust. None of Simplot's witnesses had said they had lost trust in him or would closely watch his work.

Second, the further allegations, about two night shifts in November 2020, rested on one paragraph of a witness statement that had not been tested. Simplot had not investigated them or reached any view. That was a long way from the kind of case where reinstatement would "almost certainly lead to a further termination".

The Full Bench granted permission to appeal and decided the remedy itself. It weighed the importance of his role, the absence of any valid reason for dismissal, his 23.5 years of service, that he had not found permanent work, and his unchallenged evidence that he wanted to return and held no grudges. His earlier warnings did not change the result: Simplot had kept him on after them. Simplot had led no evidence from a supervisor or manager that trust was lost.

It concluded that enough trust could be restored to make the relationship viable and productive. Simplot was ordered to reinstate him to his old position within 14 days, keep his continuity of service, and pay his lost wages, allowing for his notice pay and the compensation already paid.

What this means for you

If you have been unfairly dismissed and want your job back, the law treats that as the main remedy. An employer resisting reinstatement has to show, with evidence, that the working relationship cannot be repaired. Saying so, or pointing to suspicions and untested new complaints, is not enough.

If you want your job back, it is worth asking for reinstatement clearly from the start and being ready to give evidence that you can work with the employer again. For employers, the case shows that witnesses need to explain why trust is gone. A dismissal claim must be lodged within 21 days, so consider getting advice early.