We may order an employer to give the employee their job back ('reinstatement') if we decide a dismissal was unfair. There are rules to protect the employee.
Reinstatement is the primary remedy in unfair dismissal cases. When a Commission Member decides a dismissal is unfair they will see if reinstating the employee is appropriate. When reinstatement is not appropriate, other remedies will be looked at. This includes compensation. It is rare that the Commission decides that the employer must give the employee their job back.
Conditions the employer must meet
If we decide reinstatement is suitable, the employer must follow some rules. They must restore the employee's job to what it was before the dismissal.
This means the position has the same pay, benefits and working conditions. It does not have to be the same position but the terms and conditions cannot be worse than the previous job.
See section 391(1)(b) of the Fair Work Act 2009.
We may order the employer to give the employee their job back, even if the employer:
- still has a negative view of the employee’s actions after the legal decision
- is embarrassed because they thought an employee was guilty of something
- made the employee redundant, but it was not genuine.
Reasons reinstatement may not be possible
The Commission Member considers all factors before deciding on this option. They may not order it if:
- the business no longer operates
- the employee cannot work because of illness or injury
- the position does not exist anymore
- the employer and employee can't work together because of their relationship
- the employer would probably dismiss the employee again.
Every case is different. A decision about one case does not mean a similar case will have the same result.