Fair Work Commission orders reinstatement of unfairly dismissed employee

By Angela Kelly, Tarsha Gavin
Employment & Safety

In brief 2 min read

The Full Bench of the Fair Work Commission has overturned a decision to award compensation to an employee who had been unfairly dismissed, instead finding that reinstatement of the employee was an appropriate remedy.1

Key takeaways

  • Whether reinstatement is an appropriate remedy will depend on whether a sufficient level of trust and confidence can be restored to make the relationship between employee and employer viable and productive.


Mr Moszko was employed by Simplot as a shift feeder at a potato processing plant. In November 2020, Simplot terminated his employment due to five misconduct allegations relating to the failure to perform bunker drains and falsifying a log sheet.

At first instance, the Commissioner found that these allegations could not be substantiated and that the dismissal was harsh, unjust and unreasonable. Simplot was ordered to pay compensation of $9,200 plus superannuation.

The Commissioner held that reinstatement was inappropriate on the basis that Simplot had lost trust and confidence in Mr Moszko. In making that finding, the Commissioner considered the fact that the bunker drain issues remained unresolved meant that Mr Moszko's work was likely to be more closely scrutinised by Simplot. The Commissioner also found that there were further misconduct allegations which would likely be put to Mr Moszko if he was reinstated, and considered there was a loss of trust and low prospect of a healthy working relationship being re-established between Mr Moszko and Simplot.



The Full Bench of the Fair Work Commission held that reinstatement was an appropriate remedy on the basis that a sufficient level of trust and confidence could be restored to make the employment relationship viable and productive. In reaching this conclusion, the Full Bench noted that:

  • although the bunker drain issues remained unresolved, it did not provide a sound or rational basis to lose trust and confidence in Mr Moszko;
  • there was no witness testimony to support a finding that Mr Moszko's work practices would be more closely scrutinised and that Simplot no longer trusted him to work unsupervised;
  • further allegations regarding Mr Moszko's conduct had not been investigated and accordingly it could not be said that reinstatement would likely lead to disciplinary action or termination; and
  • Mr Moszko was a longstanding employee of 23 years, had been unable to secure permanent work and gave evidence that he would like to return to work at Simplot and did not hold any grudges.