ARTICLE · 25 AUGUST 2020

Reinstatement risk: context is everything says FWC

People + Culture Strategies

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Despite misconduct, employers must consider the context, provide an opportunity to respond & consider if it is out-of-work conduct.

AustraliaEmployment and HR

Kathleen Douch

The Fair Work Commission (the "FWC") and the Full Bench of the Fair Work Commission (the "FWCFB") have recently ordered the reinstatement of two employees having found that, in each instance, the employee's "misconduct" did not justify dismissal. In a concerning precedent for employers, both the FWCFB and FWC gave extensive consideration to the "context" of the misconduct which, on its face, may have warranted dismissal. This exacerbated the reinstatement risk but also an order for the employer to reimburse each individual for lost income in the period between dismissal and reinstatement.

Each case serves as a warning to employers that in some circumstances, context is everything.

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