3 ways Reinstatement can be ordered by the Fair Work Commission? A cautionary Unfair Dismissal tale for HR officers and HR managers

Reinstatement is rare but can happen in an unfair dismissal claim

As we all know the primary remedy for an unfair dismissal claim is reinstatement. A recent unfair dismissal decision against a manufacturing food processor led to reinstatement of the employee in the Fair Work Commission.

In the decision of Whitfield v Primo Foods Pty Ltd [2021] FWC 2729 (13 May 2021) (Primo Foods Case) the food processor was involved in an altercation on a production line:

  • Another employee was screaming at her to “pick up bacon on the floor”
  • The Applicant told the other employee to “shut up”
  • The Applicant told her supervisor that “she felt like knocking her off her perch”

Ultimately the applicant was dismissed for serious misconduct and filed an unfair dismissal claim.  Primo Foods were forced to reinstate the employee as the Fair Work Commission found the dismissal unfair.


Reason 1 – Show Cause and Investigation must be done right

A reason for the failure by Primo Foods to defend this unfair dismissal claim is because they failed to slow down the show cause process.

The applicant was provided with a “cursory” show cause letter – a letter which did not provide details for the potential reasons for dismissal. 

Importantly the show cause letter did not mention the previous disciplinary action taken against her – which Primo Foods sought to rely upon later in proceedings.

The procedure undertaken was limited.

So much so a workplace investigation was started and seemingly completed.  However, the applicant was not invited to provide a response to the investigation report findings.

Reason 2 – There must be a genuine valid reason for dismissal

The defence by Primo Foods to the unfair dismissal case almost solely relied upon the verbalising of the term “she felt like knocking her off her perch” as a threat of violence.

Unfortunately the Fair Work Commission disagreed on the following:

  • The words were said in the “heat of the moment”
  • The term was colloquial and was expressed as a sign of frustration and potentially anger but not violence
  • A single foolish act does not warrant termination of employment.

The Fair Work Commission also considered Primo Foods’ use of the previous safety breach warning. This was a warning that was disputed by the applicant.

The contested nature of the previous warning and the fact it was missing from the show cause letter caused problems for Primo Foods to later utilise it as a reason for the dismissal.

Reason 3 – need to review the unfair element

For an unfair dismissal claim to succeed in the Fair Work Commission it needs to establish 3 elements:

  • Unfair
  • Unjust
  • Unreasonable

Whether you believe there is a valid reason for dismissal must still be tempered with procedural fairness and the effect the dismissal will have on the employee.

In the Primo Foods Case the Applicant successfully argued to the Fair Work Commission that the following be taken into consideration:

  • The 10 year tenure of the Applicant
  • Absence of any other misconduct bar the previous warning
  • The previous warning (about something unrelated) was contested by the Applicant

Unfortunately for the HR Officer and Primo Foods the employee was ordered to be reinstated as the Fair Work Commission considered the above plus the reason for dismissal as being disproportionate.

Lessons for HR and Employers

There are some key lessons for HR and Employers when considering termination of employment:

  • Properly establish your valid reason for dismissal – you may need to utilise a workplace investigation and a show cause process but if your valid reason is weak and “knocked out” you will have problems defending a claim
  • Slow the process down – get your ducks lined up so you can establish a valid reason and also disprove unfair, unjust or unreasonable – we discussed this in our previous article Councils Beware Of General Protections Claims – “Slow The Process Down”
  • Show Cause letter needs to be drafted properly – there are key elements to a show cause letter and this will include providing an opportunity to respond to the allegations and particularising the allegations properly

Are you considering termination of employment or have received an unfair dismissal claim? – discuss the implications with an Employment Lawyer first – give NB Lawyers – Lawyers for Employers a call and we can offer an obligation free consultation to work through some of the steps worth taking.  Reach out via [email protected] or +61 (07) 3876 5111 to book an appointment.

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Written By 

Jonathan Mamaril 


NB Lawyers – Lawyers for Employers 

[email protected] 

+61 (07) 3876 5111 

Jonathan Mamaril, Director with NB lawyers – lawyers for employers

Jonathan Mamaril leads a team of handpicked experts in the areas of employment law and commercial law who focus on educating clients to avoid headaches, provide advice on issues before they fester and when action needs to be taken and there is a problem mitigate risk and liability.  With a core value of helping first and providing practical advice, Jonathan is a sought after advisor to a number of Employers and as a speaker for forums and seminars where his expertise is invaluable as a leader in this area as a lawyer for employers.