LEGAL UPDATE: Reinstatement in unfair dismissal cases

Employment Law


A small business’s failure to participate in unfair dismissal proceedings meant it would have been "foolhardy and inappropriate" to reinstate a beauty therapist, despite finding no valid reason for her dismissal, the FWC has found.

The beauty therapist worked for 13 months until she was dismissed via text message on March 15, 2013.

In evidence given at a hearing before Commissioner Bruce Williams, she said she was the most qualified and experienced employee at her workplace and often required to work as the manager.

On March 15, she received a text message from her manager saying that her hours were being reduced.

While only indirectly referred to in the text messages, the therapist's wages had been increased immediately before the text message after it had been found she had previously been underpaid.

After a series of messages between the therapist and her manager, the employer told her: "[U]nfortunately there is no work available at the moment. We will no longer need your assistance".

The employer later told her by SMS that she had burnt a client during an intense pulse light (IPL) skin treatment and "now the consequence is that you are without a job".

Commissioner Williams said there had been no prior warning to the therapist that her managers had any concerns with her performance and no reason to justify a summary dismissal under the Small Business Fair Dismissal Code.

In determining remedy, Commissioner Williams said that for reinstatement to be viable, an employer needs to "either have expressed a willingness to accept the employee back into its business, however reluctantly, or at least by its behaviour throughout proceedings have demonstrated its acknowledgement of the role of the Commission and that it appreciates reinstatement is a potential outcome of the unfair dismissal proceedings".

Commissioner Williams instead ordered that the therapist be paid $ $4,372.28 (less tax) in compensation.



The Fair Work Commission has found an employer had a valid reason to dismiss two printers who were involved in a physical altercation with their supervisor, but the failure to properly investigate meant that the employees would receive compensation for the dismissal.

Peacock Bros Pty Ltd sacked the two long-standing employees after a verbal and physical altercation with their supervisor, which began when he placed a roll of paper in a way in which one of the employees found hindered his work.

A verbal altercation involving both the employee and supervisor swearing at each other escalated to a physical fight when another manager was called in and another employee came to the aid of his workmate.

After hearing evidence from each of the people involved, Commissioner Wilson said he believed that the supervisor suffered blows to the head from both the employees and that his actions could not be seen objectively to have provoked such a response .

"The evidence leads to a finding that, despite there being a valid reason for their dismissal, in all the circumstances the dismissals of both [employees] was unfair, and in particular, I find that the dismissals were unjust and unreasonable" he said.

Finding that reinstatement would be inappropriate, and taking into account the valid reason for the dismissal he ordered that the two employees respectively receive $2,371.58 and $2,462.53 in compensation.



The Fair Work Commission has advised employers that even when employees have unambiguously engaged in serious misconduct, there is "little to be lost" in giving them an opportunity to explain their actions before moving to dismiss them.

The case involved a Darwin-based employee who had a verbal altercation on May 10 with his regional manager, who was investigating a complaint from a customer about his conduct.

The employee "stood over" the manager, who was seated in his office, leant forward, pointed at him and loudly said: "It's only common bloody courtesy to allow a person to answer in full when you ask them a question, especially when it's a complicated answer, and you want to look at your bloody attitude."

The regional manager decided to dismiss him the following Monday.

The commissioner said it was "difficult to imagine that this conduct would be anything other than wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment", that is, serious misconduct.

But the commissioner said a potential for reconsideration of the dismissal theoretically existed, and as an example, outlined the hypothetical case of an employee producing evidence that he was suffering psychosis from unintentionally mixing two prescription medicines.

"Consequently, even in circumstances involving unambiguous serious misconduct witnessed directly by the employer, there is little to be lost and much benefit obtained by providing an opportunity for explanation even if it would seem to be something of an exercise in futility" he said.

The Commissioner dismissed the employee’s case and the employee's dismissal was not harsh, unjust or unreasonable.

Matthew Waring

Managing Director at

Waring Legal and Waring Employment Advisors were both launched in 2012 as a professional and affordable option for individuals and companies seeking legal advice and industrial relations advice throughout Australia. Waring Legal and Waring Employment Advisors are a competitive alternative to large, impersonal law firms. Waring Legal and Waring Employment Advisors seeks to provide our clients with Professional and timely service as well as personal attention at reasonable prices.