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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]
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]
Cini v Plenty Valley Services Association Inc [2012] FWA 6918 (Ryan C, 17 August 2012).
The employee was dismissed for the use of a cash account in a form that was not properly recorded or accounted for. The Commission found that the employer had a valid reason for the dismissal but that the employee had been unfairly dismissed due to the procedures followed in effecting the dismissal.
The Commission decided not to grant any form of remedy. It noted that even if it considered that a remedy was appropriate, it would have been a zero compensation amount, given the conduct of the employee in not providing proper accounting records for the cash component of the operations of his job.
The Commission found that the employee had been unfairly dismissed. The Commission directed the employee to file material in relation to his earnings pre and post dismissal to enable the Commission to assess compensation. The employee did not file any material. The Commission then provided the employee with a final chance to file material in relation to his earnings. No material was received from the employee.
The Commission considered that an order for compensation was appropriate in the circumstances of the case but as the employee had failed to provide evidence of his earnings, no compensation was ordered.