Justice Perram has declined to stay an order for the reinstatement of an employee after the deadline for reinstatement had passed. Lynda Pykett sued her employer, TAFE NSW, for unfair dismissal on the basis that hers was not a genuine redundancy. She succeeded, and Commissioner McKenna ordered on 16 June that the employee should be reinstated by 25 June. The employee notified TAFE that she would present for work on 27 June. On 26 June, the solicitors for TAFE notified the solicitors for the employee, after hours, that the employee ought not return to work on 27 June since TAFE would seek a stay of the orders.

These facts were not well received at the stay application. Justice Perram observed that by failing to reinstate the employee by the 25 June deadline, TAFE breached a court order and thereby breached s 675(1) Fair Work Act 2009 (Cth), punishable by 12 months' imprisonment. Justice Perram considered that TAFE should have brought the matter before the court directly when the problem arose, instead of waiting until the following Monday. Moreover, his Honour required TAFE to reinstate the employee immediately. In any event, his Honour found that TAFE should have sought the stay as soon as it had received the judgment of the Commission instead of waiting for two weeks and, in so doing, breached a court order. 

Lessons for Employers

Employers should take away two points from this decision. First, employers must obey reinstatement decisions. They cannot be ignored on the basis that the employer intends to appeal; they must obtain orders from the court to that effect. Second, employers should instruct their solicitors immediately should they wish to appeal if they wish to prevent the return of the employee to work.

Andrew Berriman