Reinstatement is a Primary Right of Dismissed Employees Under Australia’s Dismissal Laws

A senior executive had a row with a regional HR manager over a PowerPoint presentation with typographical errors. The Senior Executive told the HR manager not to put his name to the PowerPoint presentation as it was not the Senior Executive who authored the presentation.

The HR Manager then began to undermine the Senior Executive by going over him and directly reporting to the Senior Executive’s immediate superior. When the Senior Executive Manager sought help in managing the regional HR Manager, the Senior Executive was placed on a performance improvement plan. To make matters worse, the erring regional HR Manager was appointed to guide the Senior Executive during the time he was placed on the performance improvement plan.

When the Senior Executive lodged a general protections case and a claim for damages, he was awarded over $ 957,500 in back pay, compensation of $100,000 and penalties of $54,000. The Fair Work Commission also ordered reinstatement of the Senior Executive to the same role he occupied prior to his unlawful termination.

The employer, a large multinational corporation, refused to reinstate the former Senior Executive. It reasoned that it cannot reinstate the Senior Executive to his former position because it had already hired another person to replace the Senior Executive. It would be highly disrespectful of the newly-hired employee to be removed from the position just to reinstate the Senior Executive. Also, the employer reasoned that reinstating the Senior Executive to his former position would disrupt business because the Senior Executive would retire after 4 years anyway. More importantly, reinstating him to the same position will put him in direct contact with the same regional HR Manager with whom he had conflicts at work previously.

The federal court refused to accept as reasonable the arguments of the multinational company. It said that the multinational corporation cannot prevent the court from reinstating the Senior Executive to the same position he occupied and would still occupy if the multinational corporation had not engaged in the prohibited conduct. The FWC also rejected the multinational corporation’s refusal to reinstate the Senior Executive because if he were to occupy the same position, he would be placed in contact with the same HR Manager. The regional HR Manager was the very reason why the Senior Executive was dismissed. The employer should ensure that the HR Manager behaves herself appropriately toward the Senior Executive or risk exposing herself to the consequences in the Fair Work Act.

The Federal Court said that reinstatement is a primary remedy available to the Senior Executive under the dismissal laws. He cannot be deprived of this primary remedy simply because reinstatement may lead to a difficult working relationship. The FWC gave the employer 48 hours within which to reinstate the Senior Executive to the same role he occupied immediately prior to his unlawful termination in 2015.

Keenan v Cummins South Pacific Pty Ltd (No. 2) [2019] FCCA 523 (6 March 2019)

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