An overview of legal procedure & case law
See Fair Work Act 2009 s.391(3) and s.391(4)
The Fair Work Act provides that the Fair Work Commission may, where appropriate, make an order for lost wages in addition to reinstatement.[1]
Section 391(4) of the Fair Work Act sets out the matters that the Commission must take into account:
An order to restore lost pay is discretionary. The Commission may take into account 'all of the circumstances of the case, including the conduct' of the employee that led to the dismissal.[2]
Social security or Centrelink payments will generally not be deducted as 'remuneration' for the purpose of determining the amount for lost pay.[3] Whether an employee who has received social security payments is obliged to repay those benefits is a matter between the employee and social security and is not a relevant consideration for the purpose of determining the amount of lost pay ordered.[4]
Workers' compensation payments may be deducted from the amount ordered.[5]
Any misconduct by the employee that has led to the dismissal may reduce the amount ordered.[6]
[1] Fair Work Act s.391(3).
[2] Kenley v JB Hi Fi, Print S7235 (AIRCFB, Ross VP, Watson SDP, Holmes C, 22 June 2000) at para. 36.
[3] Steggels Ltd v West, Print S5876 (AIRCFB, Watson SDP, Williams SDP, Smith C, 11 May 2000) at para. 21]; citing Sprigg v Paul's Licensed Festival Supermarket, Print R0235 (AIRCFB, Munro J, Duncan DP, Jones C, 24 December 1998) [(1998) 88 IR 21]; citing Shorten v Australian Meat Holdings (1996) 70 IR 360, 376.
[4] Jarvis v Crystal Pictures Pty Ltd [2010] FWA 3674 (Cloghan C, 25 May 2010) at para. 74.
[5] Steggels Ltd v West, Print S5876 (AIRCFB, Watson SDP, Williams SDP, Smith C, 11 May 2000) at para. 21; citing Sprigg v Paul's Licensed Festival Supermarket, Print R0235 (AIRCFB, Munro J, Duncan DP, Jones C, 24 December 1998) [(1998) 88 IR 21]; citing Shorten v Australian Meat Holdings (1996) 70 IR 360, 376.
[6] Kenley v JB Hi Fi, Print S7235 (AIRCFB, Ross VP, Watson SDP, Holmes C, 22 June 2000) at para. 36.