19 June 2014
An employer in Queensland's mining industry attempting to bypass reinstatement of a worker by standing him down on pay, has been told they must provide work for the reinstated individual.
The worker, a CFMEU delegate, was dismissed and when the union launched an adverse action claim they also asked the court to order his reinstatement, pending the hearing in July.
The employer’s response was to offer the worker his salary and entitlements in the interim, rather than have him return to work. The employer further asserted that should he be reinstated, they would simply continue to pay him but instruct him not to attend the work site.
The offer was refused and the Federal Court ordered reinstatement of the worker and rejected the employer's claim that paying the employee was their only responsibility.
Justice Berna Collier referred to a comment made within a High Court decision (Blackadder) that “reinstatement is meant to be real and practical, not illusory and theoretical”. Justice Collier explained that the delegate was within his rights to reject the employer's offer, particularly as it would have resulted in him being directed not to visit the work site for any purpose - including union duties.
When making this decision, the Federal Court gave significant consideration to the psychological effects of absence from work, noting that receiving a regular wage is not the sole benefit of employment. Furthermore, allowing the employer to control this compromise means that the advantages were weighed significantly in the company's favour, rather than assisting the employee who is entitled to reinstatement.
The Federal Court handed down an order which detailed the employer's obligation to place the individual in “a position no less favourable than he was in prior to termination”.
Additionally, the employer is also required to “put the employee back to the performance of those duties” and provide work of the “same kind and volume” as he was undertaking before being let go.
This ruling shows that adverse action claims and reinstatement orders cannot be easily circumvented or tailored to an employer's benefit. It also demonstrates the importance of ensuring terminations can hold up against external testing. Therefore it is important to provide comprehensive training to staff such as workplace investigation officer training to ensure internal investigations are sound. Investing in HR consulting services for advice on complex matters is also prudent. In some cases engaging independent workplace investigation services may be necessary for matters that cannot be dealt with in house, such as where internal investigators are not suitably impartial or skilled.
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