Parties clash over practical details of implementing unfair dismissal remedy orders
The Fair Work Commission (FWC) recently finalised reinstatement orders for a mine worker who successfully challenged his dismissal, determining specific arrangements for his return to work and compensation for lost wages.
The case involved disputes between the parties over the practical details of implementing the reinstatement order, including timing, role allocation, and calculation of lost pay amounts.
The worker had been employed as an operator at a major coal mine before his dismissal in September 2024, earning $157,144 annually plus bonuses.
After the FWC found his dismissal was unfair and ordered reinstatement in May 2025, the parties were unable to reach consensus on the specific terms and conditions of his return to work.
Reinstatement timing and workplace preparation arrangements
The worker initially proposed a reinstatement date of 2 July 2025, arguing this would balance the needs of both parties while allowing time for any stay application to be determined.
He submitted this timing would be consistent with Fair Work Act requirements and would avoid unnecessary delay if the employer's stay application was unsuccessful.
The employer argued that reinstatement should not take effect until after its appeal of the original unfair dismissal decision was decided.
In the alternative, it submitted that reinstatement should be delayed by two to three weeks after any order was made to allow time for appropriate practical workplace arrangements to be implemented.
The FWC determined that reinstatement would take effect from 15 July 2025, allowing time for the stay application to be heard while also providing the employer with sufficient opportunity to make necessary workplace arrangements.
The Commission found this approach balanced the competing interests while avoiding unnecessary delays in implementing the reinstatement order.
Worker’s same role and responsibilities
The parties agreed that the worker should be appointed to his previous position of operator at the coal mine, maintaining the same role and responsibilities he held before his dismissal.
The FWC accepted this arrangement as appropriate given the worker's previous experience and qualifications for the position.
Both parties submitted that the worker's continuity of service and period of continuous service should be maintained from 21 September 2024 until his reinstatement date.
The FWC accepted this arrangement, ensuring the worker would not lose accumulated service benefits as a result of the unfair dismissal.
The employer requested that the order explicitly state that leave balances paid on termination would not be recredited unless the worker repaid those amounts.
The FWC noted that such orders do not generally include explicit statements of this nature, clarifying that the order should not be construed as requiring the worker to be credited with any accrued leave that was paid out on termination.
Worker tried to look for alternative employment
The worker provided evidence that he began looking for alternative employment immediately after his dismissal but was hampered by the employer's failure to provide an up-to-date signed skills list.
The union representative had requested this documentation at the conclusion of the termination meeting on 20 September 2024, but the worker did not receive a signed version until 20 November 2024.
A management witness acknowledged that providing skills lists after termination was standard practice when requested, and admitted there had been delays with the worker's documentation due to an incorrect number.
The witness also acknowledged that it had taken longer than it should have to provide the skills list and had apologised to the worker for the delay.
After receiving the signed skills list, the worker secured new employment starting 8 January 2025 at a significantly lower rate of $64 per hour, approximately $622 per week less than his previous earnings. This new position was casual employment without the job security or leave entitlements of his previous permanent full-time role.
Reinstatement lost pay calculation and payment issues
The worker had been earning $157,144 annually plus a $15,000 bonus before his dismissal and received five weeks' pay in lieu of notice totalling $15,110.08.
Between 8 January 2025 and 20 June 2025, his earnings from alternative employment totalled $75,565.59, demonstrating a significant reduction in income compared to his previous role.
The employer identified that the worker had received an inadvertent overpayment of $7,086.53 at termination due to an administrative oversight.
The worker did not dispute this overpayment but argued it could be pursued through a separate claim rather than being offset against any lost pay compensation.
The FWC found that evidence of the worker's mitigation efforts between termination and securing new employment was limited, though the objective reality of obtaining alternative work suggested some attempt at mitigation had been made.
The Commission noted that the employer's delay in providing essential skills documentation had hindered the worker's job search efforts.
Payment for lost remuneration and worker’s losses
The worker initially proposed a general order requiring payment for lost remuneration with provision for parties to refer disputes to the Commission for final determination.
However, the employer argued such orders lacked sufficient clarity and certainty for compliance purposes, suggesting they would not be appropriate under Fair Work Act provisions.
The FWC determined it was preferable to specify the exact amount payable to avoid uncertainty in execution.
The worker had calculated his losses at $43,734.37, representing slightly more than three months' pay at his previous rate. However, the Commission applied various adjustments to reach the final compensation amount.
Taking into account the overpayment of $7,086.53, limited evidence of mitigation efforts, the employer's delay in providing skills documentation, and the worker's conduct that contributed to the original workplace incident, the FWC ordered payment of $29,318.27 for lost pay.
