In unfair dismissal matters, reinstatement is the primary remedy and the Fair Work Commission (FWC) may not make an order for compensation unless it is satisfied that reinstatement is inappropriate.
When considering whether reinstatement is appropriate, the FWC will have regard to a number of factors.
In the recent decision of Brelin v Sydney Trains  FWC 1314, the FWC ordered the reinstatement of an employee due to a “grossly unfair” investigation process whereby an employer revisited an incident that had already been resolved but came to an entirely different conclusion, despite the facts and circumstances remaining essentially the same.
The employee was a full-time Plant Mechanic for Sydney Trains (the Employer).
In August 2019, the employee was reversing his work vehicle when he collided with a power pole. The vehicle sustained approximately $35,000.00 worth of damage and a colleague in the passenger seat was injured.
The Employer investigated the incident and concluded that the accident was due to ‘human error caused by poor visibility and breakdown in communication’ (the initial investigation). The employee was required to attend a driver training course and the investigation was deemed closed.
Eight months after the incident, the Employer notified the employee that its Workplace Conduct and Investigation Unit would be conducting a second investigation into the incident in light of new evidence which showed that his colleague had been “egging him on” at the time of the incident.
It was alleged that the employee had failed to take reasonable care of the health and safety of himself and his colleague and that during the initial investigation, the employee had provided false and/or misleading information about the circumstances of the incident.
The second investigation found the allegations to be substantiated. The employee’s employment was subsequently terminated on the basis that he had engaged in conduct that breached his staff responsibilities and work health and safety obligations under the Employer’s Code of Conduct.
The employee subsequently lodged an application with the FWC alleging that his dismissal was unfair on the grounds that that the incident had already been resolved after the initial investigation.
The FWC stated that it was still “open and appropriate” for the Employer to commence a second investigation in light of new information that was not previously available.
Turning then to whether there was a valid reason for dismissal, the FWC was satisfied that the employee had engaged in conduct which involved him talking to a colleague while reversing and hitting a power pole, causing significant damage to the vehicle and injury to his colleague.
The FWC stated that the conduct indicated a “level of inattention” and the employee did not demonstrate an appropriate level of driving diligence. Accordingly, the FWC was satisfied that this conduct was a valid reason for dismissal.
However, the FWC found that the facts and circumstances relied upon to justify his dismissal had not changed between the initial and the second investigation. The FWC stated that the new information that caused the Employer to conduct a second investigation did not influence its findings and that the Employer could have drawn the same conclusion from the initial investigation but instead held it to be a case of human error. It is for this reason that the FWC held that the dismissal was unfair, unjust, and unreasonable.
In considering the appropriate remedy, the FWC rejected that the Employer had loss trust and confidence in the employee. The FWC stated that the employee had remained employed for 12 months after the initial investigation and the employment relationship had not changed until the findings of the second investigation.
Given that the facts and circumstances remained the same between both investigations, the FWC did not believe that the employment relationship would be untenable and therefore ordered the reinstatement of the employee, with continuity of employment being maintained.
Lessons for employers
Employers should not operate on the assumption that the only possible consequence of dismissing an employee is that they may be ordered to pay them compensation.
As seen in this decision, the FWC will have regard to a number of circumstances when considering whether reinstatement is an appropriate remedy, such as the nature of the employment relationship and any investigation process undertaken.
Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.
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Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog.
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