An order for
reinstatement or the payment of compensation as the remedies for unfair
dismissal are discretionary and not mandatory: Jeffrey v IBM Australia [2014] FWC 8166 is a case in point.
After long periods of
absence because of illness IBM dismissed Ms Jeffrey, a business analyst, for
the reason that on medical grounds she would not be able to fulfil the inherent
requirements of her role for the foreseeable future.
The Commission found
that the medical evidence upon which IBM relied did not support that conclusion
and therefore found that the dismissal was not for a valid reason.
When it came to
remedy the Commission found that the conduct of Ms Jeffrey at arbitration
worked against any order for reinstatement or compensation being made in her
favour.
The Commission was
especially critical of Ms Jeffrey using the hearing to besmirch the reputation
of various IBM employees without foundation and as a forum in which to raise
issues, which whilst they arose from the employment relationship, were not
relevant to her dismissal.
Ms Jeffery
represented herself at arbitration and her underlying illness may well have
affected or impaired her judgement on matters.
Even so the fact
that a remedy was not ordered is a salutary lesson to all employees contesting
their dismissal: be relevant, do not make gratuitous or unfounded accusations
and comply with rulings and directions of the Commission.
Questions about this article or about employment and workplace matters, please contact our specialist employment and workplace relations team.
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