Reinstatement in Unfair Dismissal Cases
If you’ve been unfairly dismissed, your first thought might be compensation. But under Australian workplace law, that’s not actually the Commission’s first consideration. The primary remedy under the Fair Work Act 2009 is reinstatement. In other words, putting you back in your old job.
It’s only when the Commission finds that reinstatement is inappropriate that it moves on to other remedies—such as compensation. That order matters. Even though compensation is more common, reinstatement must be considered first in every unfair dismissal case.
What Does Reinstatement Actually Mean?
Reinstatement is more than just a symbolic win. If ordered, your employer must reappoint you to your previous position or to another role with terms and conditions no less favourable than what you had before being dismissed.
This includes not just your pay and hours, but also your duties, responsibilities and other conditions of employment. The Commission doesn’t have to name a specific position—it’s up to the employer to ensure that whatever position is offered complies with the legal requirement that it be genuinely equivalent.
If reinstatement is ordered, it usually comes with two additional orders:
Continuity of service, meaning your time with the company is treated as unbroken.
Back pay, covering lost wages from the time of dismissal until your reinstatement, minus any money you’ve earned elsewhere in the meantime.
In other words, reinstatement is designed to restore you to the position you were in before your dismissal—as if it never happened.
So Why Is It So Rare? Despite being the primary remedy, reinstatement is relatively uncommon in practice. Here are the most common reasons why the Commission might find it inappropriate:
1. Loss of Trust and Confidence
The most common reason employers object to reinstatement is that the working relationship has broken down. They may argue they no longer trust the employee, especially in cases involving allegations of misconduct or dishonesty.
But the Commission doesn’t just accept this at face value. It examines whether the loss of trust is soundly and rationally based. It also considers whether the employer’s refusal to move on is reasonable—or just a way of justifying a dismissal that was unfair from the start.
In fact, the Commission has made clear that embarrassment, difficulty, or discomfort are not enough to make reinstatement inappropriate. The standard is whether a workable employment relationship can be restored—not whether the employer feels awkward about it.
2. The Job No Longer Exists
Sometimes employers argue that reinstatement isn’t possible because the position no longer exists. Maybe the business has downsized or restructured, or the role was filled by someone else.
But again, the Commission looks deeper. Just because the exact position is gone doesn’t automatically make reinstatement inappropriate. The employer must show that there is no available position with comparable pay and duties—or that reinstating the employee would create unreasonable disruption.
In some cases, the Commission has accepted that reinstatement to a similar role at another site or under a different agreement may still be appropriate, provided the overall terms remain equivalent.
3. The Employee Can’t Perform the Job
If you’ve suffered an injury or illness, and can no longer perform the core duties of your job, the Commission may decide reinstatement is not practical. This is especially relevant where:
The employer is small and can’t accommodate modified duties.
The injury is ongoing or likely to recur.
The job involved physical tasks the employee can no longer safely do.
However, if you’ve recovered or can return to work with minor adjustments, reinstatement may still be on the table.
4. A New Dismissal Would Be Inevitable
In rare cases, the Commission finds that reinstatement would almost certainly lead to a second dismissal. For example, if the employer discovers serious misconduct only after the initial dismissal, and that conduct would have justified termination on its own, reinstatement might be pointless.
But again, this is a high bar. The Commission won’t speculate or allow employers to revisit a dismissal unless there’s solid new evidence.
Reinstatement Has Been Ordered—Even in Complex Cases
Contrary to popular belief, reinstatement isn’t limited to minor disputes. The Commission has ordered reinstatement in cases involving:
Threats of violence (where the conduct wasn’t found to be ongoing or malicious).
Disputes over misconduct that lacked proper investigation.
Employees dismissed after workplace injuries, once cleared to return to work.
Situations where employers falsely claimed dishonesty or tried to hide behind procedural shortcuts.
In one case, the Commission found that an employee who took three bottles of discarded liquor home was wrongly labelled a thief. The dismissal was ruled unfair—and reinstatement was ordered with full back pay. The employer’s claims of lost trust were dismissed as exaggerated and baseless.
What Does This Mean for You?
If you’ve been unfairly dismissed, reinstatement is your legal starting point. The Commission is required to explore whether returning to your role is feasible. Employers must do more than just object—they must prove why reinstatement isn’t possible.
In reality, many employers do push back against reinstatement. But the Commission has made it clear: personal discomfort, stubbornness, or embarrassment are not valid excuses. The focus is on whether trust can be restored and the relationship made productive again.
Even if reinstatement isn’t suitable in your case, understanding your legal entitlement to it helps you negotiate stronger outcomes. And in the right circumstances, it may mean getting your job—and your reputation—back.
Key Points for Employees
Reinstatement is the first remedy the Commission must consider.
You must be placed in the same or equivalent job if reinstatement is ordered.
It includes back pay and continuity of service.
Reinstatement is rare—but not impossible. Employers must prove why it’s inappropriate.
If it can’t be ordered, only then can compensation be awarded.
At Workplace Justice, we help employees fight for what’s fair. Whether you want your job back, or just need a fair resolution after being wrongfully dismissed, we’ll stand with you—every step of the way.
