Fair Work Commission

Overview

An order for reinstatement CANNOT be made if it is conditional upon a medical, risk or health and safety assessment by a third person after the order has been issued.

The Fair Work Commission must make any required assessment of that nature based on the evidence of the parties. If the Commission cannot be satisfied that the relevant employee is fit to perform the inherent duties of his or her former position, or those of an alternative position that is no less favourable, then reinstatement is not an appropriate remedy.^[1]

This does not mean that a reinstatement order may not contain ancillary provisions additional to the requirement that the employee be reinstated to the identified position. For example, a reinstatement order will usually identify a date by which the order is to be complied with; and other necessary ancillary provisions may be included provided that the order is one which retains the essential character of effecting the reinstatement of the employee.^[2]

Case examples

References

^[1] Cartisano v Sportsmed SA Hospitals Pty Ltd [2015] FWCFB 1523 (Hatcher VP, Smith DP, Roe C, 12 March 2015) at para. 46.

^[2] ibid., at para. 45; citing Transport Workers' Union of New South Wales v Australian Industrial Relations Commission (2008) 171 IR 84, [37]–[38].