Rethinking The Reinstatement Remedy In Unfair Dismissal Law

Reinstatement is said to be the primary remedy for unfair dismissal under the Fair Work Act 2009 (Cth). The Fair Work Commission is granted a broad discretion to determine whether to award reinstatement, but in the vast majority of cases it does not do so. This article considers the purpose of reinstatement by reference to the context and history of the unfair dismissal provisions, and argues that it is aimed at protecting the individual interests of the employees. This statutory context must be considered when the Fair Work Commission exercises its discretion in granting or refusing reinstatement. It is argued that the Fair Work Commission, in exercising its discretion, has overlooked some of this context and frustrated some of the purposes of the Act. This article makes some suggestions for reform of the law of reinstatement