An overview of legal procedure & case law
Parties to an unfair dismissal matter need to give consideration to what remedy they consider appropriate and the reasons why before the matter is heard.
Having this information ready will assist the Fair Work Commission in determining the matter.
See Fair Work Act 2009 s.390
The Commission may order a person's reinstatement, or the payment of compensation to a person, if the Commission is satisfied that the person was protected from unfair dismissal at the time of being dismissed, and found that the person has been unfairly dismissed.
The question of whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one.[1] The grant of a remedy for an unfair dismissal is not automatic or a right.[2]
An order is a compulsory direction given by the Commission in accordance with a decision.
A person commits an offence under the Fair Work Act if the person contravenes a Commission order (or term of the order) that applies to that person.[3]
[1] Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198 (Ross J, Gostencnik DP, Wilson C, 21 October 2014) at para. 9.
[2] Rushiti v Australian Postal Corporation T/A Australia Post [2012] FWA 5012 (Ryan C, 19 June 2012) at para. 4, citing Ellawala v Australian Postal Corporation, Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000) at para. 24.
[3] Fair Work Act ss.405, 675.