A recent decision in the Fair Work Commission saw the reinstatement of 6 employees after they were unfairly dismissed from the same employer. In Burkhardt & Others v Qube Ports Pty Limited, Mr Rudy Burkhardt, Mr Adrian Pedder, Mr Craig Miller, Mr Igor Butsenko, Mr Richard Iki and Mr Tym Brazel were notified by the Respondent that their employment was terminated. The group filed their unfair dismissal applications individually but the Fair Work Commission decided to hear the applications jointly as the termination arose from the same set of circumstances.
The Applicants were Shift Managers who were asked to perform stevedoring work at the terminal during a period when the stevedoring employees were taking protected industrial action. All of the Shift Managers, at different times, advised the employer that they were prepared to perform their duties as a Shift Manager but would not perform the work of the striking stevedores for a variety of reasons including safety on the job, personal and family safety, because stevedoring functions are not part of their job, and the need to preserve and re-establish a working relationship with the stevedores when the protected action concludes. The Applicants were prepared to work. The Applicants were prepared to do their own jobs. The Applicants were not prepared to perform work for which they were not trained or qualified to perform or for which they were not employed to undertake. The Shift Managers declined the request and they were subsequently dismissed for allegedly not following a lawful and reasonable direction.
In determining whether there was a valid reason for dismissal, Commissioner Riordan of the Fair Work Commission, had to determine whether the request to perform stevedoring work was a lawful and reasonable direction. It was held that there was no provision for such a task in the employment contract or award, it was not mentioned in any interview process involving any of the applicants and it was not mentioned in the position description of a Shift Manager. The direction made to the applicants were not lawful and reasonable and thus there was no valid reason for dismissal. Without a valid reason for dismissal, an unfair dismissal claim is immediately harsh, unjust and unreasonable as the claim fails on this first requirement.
When addressing any other matters relevant for the Commission’s consideration, Commissioner Riordan criticised the employers unconscionable conduct prior to the dismissal. In July 2021, Mr Kranendonk presented a deed of release to the Shift Managers at a meeting, asking them to sign the deed before he was prepared to outline the 4-step plan to keep the port functioning. However, Mr Kranendonk required the Shift Managers to sign the document before they read it. Commissioner Riordan described the employer’s conduct as unfair, unconscionable and simply ridiculous, as the employees were prohibited from reading the document but required to sign it, without any knowledge of what they were signing.
Having concluded that the dismissal was unfair, Commissioner Riordan considered the Applicants’ claim for reinstatement. In determining whether an employee can be reinstated, the Fair Work Commission must consider whether reinstatement is a viable option considering the trust and confidence in the employment relationship.
In Perkins v Grace Worldwide (Aust) Pty Ltd (Perkins), the Full Court of the Industrial Court said:
“Trust and confidence is a necessary ingredient in any employment relationship. … So we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.
At the same time, it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee’s employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court’s finding on that question in the resolution of an application under Di 3 of Pt VIA of the Act.
If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of a loss of confidence in the employee.
… It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether that standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party.
It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee’s employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer’s own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable.”
In Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter (Nguyen), a Full Bench of the Commission conveniently summarised this issue:
“The following propositions concerning the impact of a loss of trust and confidence on the question of whether reinstatement is appropriate may be distilled from the decided cases:
• Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement.
• Each case must be decided on its own facts, including the nature of the employment concerned. There may be a limited number of circumstances in which any ripple on the surface of the employment relationship will destroy its viability but in most cases the employment relationship is capable of withstanding some friction and doubts.
• An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion.
• The reluctance of an employer to shift from a view, despite a tribunal’s assessment that the employee was not guilty of serious wrongdoing or misconduct, does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged or destroyed.
• The fact that it may be difficult or embarrassing for an employer to be required to reemploy an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate. Ultimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party.”
Ultimately, Commissioner Riordan did not accept that the requisite level of trust and confidence could not be re-established with the 6 Applicants in order to allow the Applicants to continue their career with the Respondent.
Based on the obiter and Perkins and Nguyen, Commissioner Riordan was satisfied that the requisite trust and confidence can be re-established between the Applicants and the Respondent. In making this decision, Commissioner Riordan noted that none of the Applicants were dismissed for unsatisfactory performance and all of the Applicants are keen to resume their careers with the Respondent. The Applicants were reinstated to their former roles as Shift Managers at Fremantle Port and maintained their continuity of employment. The Applicants also received back pay for their lost time, including their superannuation, between the date of termination and the date of their reinstatement, less any money earnt by each Applicant in the intervening period.