Role of the Court in unfair dismissal cases

It is a criminal offence to not comply with an order of the Fair Work Commission.[1]

A person to whom a reinstatement or compensation order applies must not contravene a term of the order.[2]

If a person does contravene an order then:

• a person affected by the contravention
• a union or an employer organisation,
• or an inspector;

may seek enforcement of the Commission's order through civil remedy proceedings in:

• the Fair Work Division of the Federal Circuit and Family Court of Australia
• the Fair Work Division of the Federal Court of Australia, or
• an eligible State or Territory Court.[3]

Failure to comply with an order may result in the Court imposing a pecuniary penalty or making other orders.

Normally an order from the Commission will provide a timeframe within which the order must be complied with. It is advisable to wait until the timeframe has lapsed before seeking enforcement of the order.

Related information

• Powers of the Commission

Commission order enforced by Court

Meadley v Sort Worx Pty Ltd

Meadley v Sort Worx Pty Ltd [2013] FCA 1012 (8 October 2013).

The employee was found to have been unfairly dismissed and the Commission ordered that she be reinstated and awarded compensation of $24,143 in May 2013.

By June, when the company still hadn't reinstated or compensated her, the employee sought Federal Court orders requiring it to do so, plus pecuniary penalties. The company paid the compensation but still did not reinstate the employee.

The Court held that the company's managing director had made a 'deliberate decision' not to reinstate the employee or pay her compensation for lost wages until the end of its appeals process, despite both the Commission and the company's employer association making it clear it had to comply with the Commission's orders.

The company was fined $10,000 and the employee was awarded a further $15,045 in redundancy pay, lost wages, notice and accrued leave entitlements, plus interest.

Fair Work Ombudsman v Indian Food Catering Pty Ltd & Anor

Fair Work Ombudsman v Indian Food Catering Pty Ltd & Anor [2019] FCCA 1471 (30 May 2019).

The employee was found to have been unfairly dismissed and in September 2018 the Commission ordered compensation of $18,000.00 (less applicable taxation) in six instalments. Those instalments were to take place from September 2018 to February 2019. The respondent did not make payments as required in accordance with the order and an application was made by the Fair Work Ombudsman to the Court in March 2019.

At the time the application was made to the Court, only a sum of $5,000.00 had been paid. Since the making of the Court’s orders in April 2019, an additional payment was made bringing the total to $7,000.00. Applying the applicable taxation rate the balance outstanding under the order made by the Commission was $5,008.00.

The Court held that when order was made by the Commission, the respondent was already in a position of considerable financial difficulty, and was the reason why the payment was to be made in instalments. The employee was also obviously a vulnerable employee and the outstanding balance would be of considerable significance to him.

The Court has also took into account the admitted deliberateness of the conduct by the respondent, however accepted that there had been genuine contrition by the respondent in respect of the failure to comply with the Commission order. The Court also accepted that there had been real and genuine cooperation with the enforcement authorities in relation to the financial difficulties in complying with the Commission order, and that there has been cooperation in relation to the proceedings that were then brought by the Fair Work Ombudsman to ensure that the Commission’s order was complied with.

The respondent was ordered to pay the employee the outstanding $5,008.00, plus interest, and was fined $5,000.00.

See Fair Work Act 2009 s.545, s.546 and s.570

The Federal Court or the Federal Circuit and Family Court may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision.

Orders the Federal Court or Federal Circuit and Family Court may make include the following:

• an order granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention
• an order awarding compensation for loss that a person has suffered because of the contravention (which can include interest), or
• an order for reinstatement of a person.

The Federal Court, the Federal Circuit and Family Court or an eligible state or territory court may, on application, order a person to pay a pecuniary penalty that the court considers is appropriate if the court is satisfied that the person has contravened a civil remedy provision.

The pecuniary penalty for an individual must not be more than the maximum penalty for the relevant contravention set out in section 539 of the Fair Work Act.

In the case of a body corporate, the maximum penalty is 5 times the maximum for an individual.

The court may order that the pecuniary penalty, or a part of the penalty, be paid to:

• the Commonwealth
• a particular organisation (such as a union), or
• a particular person.

A party to proceedings (including an appeal) in a court in relation to a matter arising under the Fair Work Act may be ordered by the court to pay costs incurred by another party to the proceedings.

The party may be ordered to pay the costs only if the court is satisfied that:

• the party instituted the proceedings vexatiously or without reasonable cause
• the party's unreasonable act or omission caused the other party to incur the costs, or
• the party unreasonably refused to participate in a matter before the Commission, and the matter arose from the same facts as the proceedings.