Fair Work Commission
to reinstate an employee to their former role can be a nightmare for HR professionals.
When an employee who was previously given the sack returns to the workplace, managers may have good reason to feel a little red-faced and HR may worry the returning employee will be difficult to deal with.
However, acting in good faith, briefing managers and organizing mediation meetings can be the best way to ensure all bad water is under the bridge when welcoming an employee who was previously given the sack, says Patricia Ryan from The Workplace Lawyers.
“Employers dread a reinstatement order as they believe the applicant will be difficult to manage and refuse directions,” Ryan told HC Online.
“HR should properly brief managers about their obligation to comply with the order for reinstatement and treat the employee the same as others and not victimise.”
Arranging for mediation or facilitation meetings with an external expert may help to smooth over the reinstatement transition, Ryan says, noting that it is also important for the employee to be brought up to date and given any missed training relevant to their role.
HR should also ensure that leave and employment records are adjusted accordingly to count any absences as continuous service.
While reinstatement is the primary remedy the FWC considers before a compensation order is made, many applicants do not wish to return to their former roles and reinstatement is uncommon, Ryan says.
However, in a recent decision, a FWC Commissioner did grant reinstatement to an employee, stating that he was satisfied that professional working relationships can be re-established and any discomfort short-lived.
Ryan says come key challenges HR needs to be aware of when an employee who was unfairly dismissed is coming back to their former role include:
- If termination was for non-performance, HR will have to ensure any performance management is transparent, fair and in accordance with policies;
- HR should coach the manager(s) on how to deal with any issues;
- Like any other employee, the employee should be advised if not performing;
- If for misconduct, the misconduct (same or different misconduct) should not be tolerated – so don’t back off in fear.
- If the dismissal was procedurally unfair, ensure any future process cannot be impugned.
Generally, the FWC considers it would be inappropriate to reinstate employees to their former position if the relationship between applicant and the employer has been irreparably damaged.
Sometimes the employee’s conduct before or after termination can have an effect on whether they get their job back, Ryan says, noting that employees who vent their frustration towards their employers in derogatory social media posts are unlikely to find themselves re-hired.
If the employee has lost the trust and confidence of their employer or can’t re-establish a “collegial relationship”, or has engaged in inappropriate conduct throughout their termination, it is unlikely they will succeed in a request for reinstatement.
The employer may find themselves in a difficult position if the FWC orders them to reinstate an employee, against the company’s will.
“It’s a binding order and must be followed,” Ryan says.
Employers can appeal the FWC’s decision, however unless the commission grants a stay of proceedings in the interim the employee will still be permitted to return to work until the appeal is heard.
Offering pay-out to a worker for them to quietly move on is also wading into dangerous territory, Ryan says, as it could be seen to breach the court order and be seen as coercive.
And simply refusing to re-employ a sacked worker can land employers in legal hot water, as was the case of Meadley v Solwerx where the employer who refused to reinstate a worker because major contracts had been lost and the company argued there was no job to offer.
“In this case, the employer was fined $10,000 and had to pay up lost wages and benefits to the employee,” Ryan says.
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