A Full Bench of the Fair Work Commission held that the Tribunal’s power to reinstate an employee who has been unfairly dismissed does not include placing conditions on that reinstatement.

Background

Ms Cartisano was employed as a manager by Sportsmed SA Hospitals Pty Ltd in its Central Sterilising Supply Department.

In 2013, Ms Cartisano was involved in a car accident and sustained a number of injuries, including to her shoulder. After the accident, Ms Cartisano returned to work, however her injuries prevented her from working on a full time basis. Ms Cartisano was subsequently required to undergo shoulder surgery, and Sportsmed agreed to provide her with extended leave during this time. Upon her return to work, Sportsmed required Ms Cartisano to undergo a medical assessment to determine whether she was fit to carry out the inherent requirements of her role. The assessment concluded that Ms Cartisano was not fit to do so.

On 24 October 2013, a meeting was held between Sportsmed and Ms Cartisano to discuss the results of the assessment and her return to work. The meeting concluded with the termination of Ms Cartisano’s employment for the reason that she was unable to perform the inherent requirements of her role.

Ms Cartisano lodged an unfair dismissal claim, alleging that Sportsmed did not have a valid reason for her dismissal and also failed to afford her procedural fairness. Ms Cartisano sought reinstatement to her role as manager at Sportsmed.

Reinstatement with conditions

At first instance, the Fair Work Commission held that Sportsmed did not have a valid reason for dismissing Ms Cartisano.

It also found that the manner of her dismissal was procedurally unfair, and that the termination of her employment was harsh and unjust.

In deciding on the remedy to award Ms Cartisano, the Commission noted that it must first and foremost consider whether reinstating Ms Cartisano to the position she held prior to her dismissal would be appropriate. In doing so, the Commission expressed significant reservations about Ms Cartisano’s capacity to undertake the inherent requirements of her position given her medical condition.

The Commission ordered that Ms Cartisano should be reinstated to her role as manager. However, it considered that medical advice specific to the job could impact the implementation of the reinstatement order. Therefore, the Commission ordered that Ms Cartisano’s reinstatement was conditional upon her undertaking a risk assessment conducted by Sportsmed.

In the event that the risk assessment identified that Ms Cartisano was unable to perform her work safely, the Commission stated that Ms Cartisano may not actually be able to return to work.

In accordance with the condition imposed by the Commission, Ms Cartisano underwent a risk assessment. The risk assessment concluded that there was a “significant risk” that Ms Cartisano would aggravate her existing shoulder injury if she were to return to work. Despite these results, Ms Cartisano sought to rely on the reinstatement order and return to work. However, Sportsmed considered  that the results of the assessment meant that the condition was not satisfied, and refused to allow Ms Cartisano’s return to work. Sportsmed directed Ms Cartisano to remain absent from work on personal leave until she provided a medical clearance.

Ms Cartisano appealed the Commission’s decision to a Full Bench of the Fair Work Commission, arguing that the condition was invalid.

The Full Bench granted Ms Cartisano leave to appeal on the basis that the matter raised an important question of interpretation of the Fair Work Act 2009 (Cth) (FW Act) which had not directly been considered by a Full Bench of the Commission before and which had general application.

Decision of the Full Bench: reinstatement without conditions

On appeal, Ms Cartisano argued that the FW Act does not provide the Commission with the power to make a reinstatement order which has any kind of conditions attached to it.

The Full Bench stated that the Commission is empowered to award two types of remedy in circumstances of an unfair dismissal: reinstatement and compensation. The Full Bench noted the FW Act’s emphasis on reinstatement, and confirmed that any consideration of compensation must only occur if and when the Commission has deemed that reinstatement is inappropriate.

In interpreting the relevant section of the FW Act which deals with reinstatement, the Full Bench held that the Commission does not have the power to grant conditional reinstatement.

In reaching this decision, the Full Bench held that an order of reinstatement:

  • must effect a “real and practical return to work and the performance of work duties”;
  • must be one that “achieves an actual return to work in the employee’s pre-dismissal position”;
  • must not contain a condition, term or proviso, compliance with which would result in the employee not being returned to work at all, thereby undermining the essential character of reinstatement; and
  • may include ancillary provisions, provided that such provisions retain the “essential character of effecting the reinstatement of the employee”.

Having allowed the appeal, the Full Bench went on to determine that it was satisfied Ms Cartisano possessed the requisite capacity to perform the inherent requirements of her former role, and  made an order requiring that she be unconditionally reinstated within 14 days.

In addition to ordering reinstatement, the Full Bench also ordered that Sportsmed compensate Ms Cartisano for lost earnings as a result of the dismissal.

Bottom line for employers

In deciding the type of remedy to award in unfair dismissal cases, the Commission will place an emphasis on reinstatement, and any consideration of compensation will only occur if and when the Commission has deemed that reinstatement is inappropriate.

The decision of the Full Bench makes  it clear that the Commission’s power to order reinstatement of an employee who has been unfairly dismissed does not extend to placing a condition or proviso on that reinstatement, regardless of the employee’s perceived or actual capacity to fulfil the inherent requirements of their job.

However, an order for reinstatement may include ancillary provisions to ensure the order is effective, for example, by identifying a date by which the order for reinstatement must be complied with.

It is important to remember that the employee in this case was considered by the Commission to possess the necessary capacity to perform the duties of her previous role. However, in situations where there are concerns about an employee’s capacity to perform the duties of their pre-dismissal position, and where the Commission cannot be satisfied that the employee is fit to perform those duties, then it will likely turn to the alternative remedy of compensation.