![]() ![]() The Full Bench held that it was erroneous to take into account the “further allegations” to be put to the Applicant, as they could not form a “sound or rational basis” resulting in a loss of trust and confidence. As these matters could not be proved, they could not rationally or soundly underpin a loss of trust and confidence let alone dismissal. The Full Bench found that in its original decision the FWC had erred by giving unnecessary weight to the allegations that were ultimately not proved against the Applicant and their impact on the employment relationship. However, the ultimate question was whether there could be a sufficient level of trust and confidence restored to make the relationship viable and productive, and in making this assessment it was appropriate to consider the rationality of any attitude taken by a party. The Full Bench of the FWC accepted that reinstatement may be inappropriate in a range of circumstances including the loss of trust and confidence. the matters upon which she relied did not support such finding.there was no evidence before her upon which such finding could be made and.In finding that reinstatement was inappropriate on the basis that: The Applicant then appealed to the Full Bench of the FWC, contending that the original decision maker had erred The FWC made an order for compensation of $9,200. it was likely that further allegations would “ be put to the Applicant should he be reinstated” that would lead to his work being highly.the loss of trust in the employment relationship would “likely affect the prospects of a healthy working relationships being re-established” and.However, the FWC held that reinstatement would not be appropriate due to the unresolved nature of the issues which gave rise to the allegations, and that: The FWC determined that there was no valid reason for the dismissal of the Applicant, and that his dismissal was harsh, unjust and unreasonable. In the original decision, the FWC found no evidence to support the Respondent’s allegations against the Applicant. On 20 November 2020, the Applicant was dismissed from his employment due to allegations that he had not completed work and had falsified records between the period of 20 – 21 October 2020. The Applicant was also a union delegate and a work, health and safety representative. The Applicant was employed as a shift feeder by the Respondent (a food producer and manufacturer) for a period of 23 years. While orders for reinstatement are not often made by the FWC due to the breakdown in trust and confidence between the employer and employee, a recent decision by the Full Bench of the Commission demonstrates that reinstatement may be ordered in circumstances where trust and confidence can be restored to a sufficient level to make the employment relationship viable and productive. Under the Fair Work Act (2009) (the “ FW Act”) the Fair Work Commission (“ FWC”) has the discretion to order the reinstatement of an employee who has been unfairly dismissed.
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