Why unfair dismissal reinstatements are tough to get

An unfair dismissal decision that previously saw the reinstatement of a Virgin flight attendant has been overturned by the Fair Work Commission on appeal. We had previously detailed this unfair dismissal case, which saw the flight attendant win reinstatement due to numerous lapses of procedural fairness by Virgin.

This was despite the flight attendant having breached Virgin’s code of conduct. The flight attendant was found to have stolen food, watched movies and taken naps during flights, in addition to regularly turning up to work late. In this article, we explain why this unfair dismissal case was overturned. And we provide all you need to know about unfair dismissal reinstatements. This includes statistics that may shock you as to just how many unfair dismissal cases actually result in reinstatement.

Why the flight attendant was dismissed then reinstated

Fair Work Commissioner Paula Spencer, who heard the original unfair dismissal case, had found that Virgin had a valid reason to dismiss the flight attendant. However, she had ruled that it was an unfair dismissal due to several reasons. This includes because Virgin had not:

• Told the flight attendant it had relied on two earlier warnings about her conduct to make the decision to dismiss her.
• Adequately assessed the circumstances surrounding the flight attendant’s breaches of the code of conduct.
• Considered alternatives to dismissing the flight attendant.

Airline appeals the unfair dismissal reinstatement via Fair Work Commission

In Virgin Australia Airlines Pty Ltd v DeVania Blackburn, Virgin last month appealed the original unfair dismissal decision with the Fair Work Commission Full Bench. It found that Commissioner Spencer had considered the flight attendant’s misconduct in a way that was “disharmonious” with previous Fair Work Commission decisions of a similar nature.

The Full Bench also remarked that Virgin’s appeal of the unfair dismissal decision brought to light critical issues. Namely, about the Fair Work Commission’s ability to decide when reinstatement should be made after finding that an employee has breached safety standards.

Why was the unfair dismissal reinstatement decision overturned?

The Fair Work Commission Full Bench found Commissioner Spencer’s assessments of the unfair dismissal case severely wanting. Firstly, it took issue with the fact that she had not considered the flight attendant’s prior warnings when making the decision to reinstate her.

The Full Bench found that this caused Commissioner Spencer to insufficiently balance the criteria for considering the harshness of a dismissal. The criteria is outlined in s397 of the Fair Work Act 2009.

Second reason for overturning the unfair dismissal reinstatement

Secondly, the Full Bench found that Commissioner Spencer had “mischaracterized” Virgin’s investigation into the flight attendant’s breaches of the code of conduct. Namely, for having stolen snacks, watched movies, and taken naps on flights. Commissioner Spencer had taken issue with Virgin having asked colleagues who witnessed the flight attendant’s misconduct to submit their account of events. She had deemed that this investigation was undertaken with a view to finding the flight attendant guilty.

But the Full Bench found that by asking colleagues to submit their accounts, Virgin’s investigation had followed an “orthodox process.” And it found that there was “no evidence” that Commissioner Spencer could have relied upon to conclude that Virgin had solicited these damning accounts from colleagues. Nor that the company had “asked leading questions or in some way sought a particular outcome.” The Full Bench deemed this a “a significant error of fact” on Commissioner Spencer’s part.

Third reason for overturning the unfair dismissal reinstatement

Thirdly, the Fair Work Commission Full Bench took issue with Commissioner Spencer’s finding that Virgin had unreasonably delayed the investigation into the flight attendant’s misconduct. And that it had delayed its process for finalising the decision to dismiss her.

The Full Bench found that there was “no evidence” that any delays “caused prejudice to the [flight attendant].” It said that Commissioner Spencer had “erred” in deciding that the delay resulted in procedural unfairness.

Fourth reason for overturning the unfair dismissal reinstatement

Finally, the Fair Work Commission Full Bench considered whether the flight attendant’s failure to comply with Virgin’s safety procedures should annul her reinstatement. Commissioner Spencer had found that the flight attendant had transgressed these procedures in “numerous” ways.

The Full Bench found that these findings and the warnings the flight attendant had received are “inconsistent with the trust and confidence [Virgin] ought to have in an employee.” In particular, one “who is in charge of a cabin in such a safety critical industry.”

The Full Bench therefore concluded that these safety procedure transgressions were “inconsistent with a decision to grant reinstatement.” This, however, was a moot point. The Full Bench stated that it wasn’t required to make a decision on whether to reinstate the flight attendant. That’s because it had found that Commissioner Spencer had erred in finding that Virgin failed to consider alternatives to dismissal and warn the flight attendant about being late. Commissioner Spencer’s ruling that the flight attendant had experienced an unfair dismissal was therefore overturned. And so too her reinstatement.

Key lesson: It’s tough to get reinstated via an unfair dismissal claim

The lesson we can learn from this unfair dismissal case is that seeking reinstatement through the Fair Work Commission is an incredibly difficult undertaking. The Fair Work Act 2009 states that reinstatement is the “primary remedy” that the Fair Work Commission should resort to in unfair dismissal cases. However, the statistics illustrate just how often employees fail to win reinstatement.

Reinstatement through an unfair dismissal conciliation: The statistics

When you lodge an unfair dismissal claim, the first step the Fair Work Commission will take is to broker a conciliation with your employer. This is where 75 per cent of unfair dismissal cases are resolved, according to the Fair Work Commission. The latest figures from the Fair Work Commission state that in the 2018-19 financial year, only 55 unfair dismissal conciliations ended in the employee being reinstated. That figure amounts to just one per cent of all conciliations.

Reinstatement through an unfair dismissal hearing

When it comes to unfair dismissal cases that proceeded to a formal Fair Work Commission hearing, the amount of reinstatements is similarly rare. In the 2018-19 financial year, only nine unfair dismissal applications ended with reinstatement, plus compensation for lost remuneration. That amounts to only six per cent of applications. With regard to applications that ended with reinstatement without compensation for lost remuneration, only four ended thusly. This amounts to just three per cent of all unfair dismissal applications.

What does reinstatement actually mean?

When an employee has experienced an unfair dismissal and is reinstated to their position, the employer must:

• Reinstate the employee to the role they occupied immediately prior to their unfair dismissal.
  
• Or designate another position for them within the company. This position must not be any less favourable than that which the employee occupied just prior to their unfair dismissal.

When requiring an employer to reinstate an employee, the Fair Work Commission doesn’t have to outline a particular position. It is up to the employer to decide what position they will occupy, but it mustn’t be any less favourable than their prior position.

Sometimes, reinstatement isn’t possible

There are, however, many instances when reinstatement isn’t feasible following a successful unfair dismissal claim. This includes when:

• The employer doesn’t any longer operate a business into which the employee can be reinstated.
• The employee is suffering from illness or injury and isn’t capable to work effectively as a result.   
• There is a loss of trust and confidence between the employer and employee. And therefore the relationship between them is irreconcilable.
• Reinstatement is very likely to result in another dismissal of the employee.

Many reinstatements are negotiated

Many reinstatements are negotiated outside of the Fair work Commission. (numerous by us) The employer realizes they were too hasty in dismissing the employee. Or didn’t realize until the employee wasn’t there how much work work they did or who really was the trouble maker or stirrer. Surprisingly a lot of employees don’t want to be reinstated. (and still be out of work) They feel hurt, disrespected and too embarrassed to walk back in. Its for the employer to sort this out. Its not about winning or losing its about the employee acting in their and their families best interest.

Unfair dismissal payout usually preferred over reinstatement

When an employee makes an unfair dismissal claim, it’s far more likely that it will end in a payout payout rather than reinstatement. In 2018–19, 63 per cent of conciliations ended with the employee being awarded both monetary and non-monetary items. While 18 per cent ended with the employee being compensated on a non-monetary basis. For those unfair dismissal applications that were decided at a formal hearing, 69 per cent saw the employee awarded a payout.

How much can you receive with an unfair dismissal payout?

The most recent figures from the Fair Work Commission reveal that the median unfair dismissal payout is $8,704. It must be noted that there is a cap on the amount of financial compensation you can receive. Essentially, you can receive the lower of one of two amounts. That is, half your annual wage or the amount designated by the compensation cap, which changes 1 July each year. As of writing, the compensation cap is $79,250. You can read all you need to know about unfair dismissal payouts in our detailed article.

Have you been unfairly dismissed?

There are many reasons to challenge your dismissal through the Fair Work Commission. It may be that your dismissal was a disproportionate response to your alleged misconduct or underperformance. Or simply that your alleged misconduct didn’t take place at all. You may also have a case to make if you were denied procedural fairness prior to being dismissed. For instance, your employer may not have followed the necessary steps to notify you of the reasons for your dismissal. Or they may not have provided you the chance to respond to those reasons. Did a proper workplace investigation take place as part of a just process.

For whatever reason you believe you have been unfairly dismissed, we at A Whole New Approach can help. We can provide the expert guidance you need to understand if you have a viable unfair dismissal case. And with our over 20 years’ experience helping more than 16,000 Australian workers make unfair dismissal claims, we can assist you in making your claim a success.

You can benefit from our no win, no fee service and your first consultation with us is free. We assist in all states including, Victoria, NSW, QLD

Call us today on 1800 333 666.

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