Reinstatement is the primary remedy

Under the Fair Work Act 2009 the primary remedy for an unfair dismissal is reinstatement of the employee to employment.

Yet even where reinstatement is sought, the Fair Work Commission does not often order it.

One reason seems to be that employers consistently argue that reinstatement is simply not viable because the trust and confidence necessary for a continuing employment relationship has been broken.

The decision in Singh v Metro Trains Melbourne Pty Ltd [2016] FWC 2291 demonstrates the circumstances in which the Commission will order reinstatement.

Ms Singh was a station assistant who was dismissed for the alleged theft of lost property.

The Commission found Metro’s investigation flawed and that short of stealing the lost property Ms Singh had dealt with it in breach Metro’s lost property policy.

Ms Singh had an impeccable work record over 10 years of service and maintained her right to be reinstated as the proper remedy for her dismissal.

Although she had applied for other jobs after she was dismissed she had not been successful in obtaining any.

What influenced the Commission in ordering reinstatement were two factors:

1. Distrust of an employee by the employer cannot of itself be a sufficient reason to decline reinstatement, otherwise no employee would ever be reinstated where the employer believed or suspected the employee had engaged in misconduct.
   
2. Metro was a large employer and there were many roles within it that Ms Singh could perform at different locations so that the element of trust and confidence was of diminished importance.