Order for reinstatement cannot be subject to conditions

An order for reinstatement CANNOT be made if it is conditional upon a medical, risk or health and safety assessment by a third person after the order has been issued.

The Fair Work Commission must make any required assessment of that nature based on the evidence of the parties. If the Commission cannot be satisfied that the relevant employee is fit to perform the inherent duties of his or her former position, or those of an alternative position that is no less favourable, then reinstatement is not an appropriate remedy.[1]

This does not mean that a reinstatement order may not contain ancillary provisions additional to the requirement that the employee be reinstated to the identified position. For example, a reinstatement order will usually identify a date by which the order is to be complied with; and other necessary ancillary provisions may be included provided that the order is one which retains the essential character of effecting the reinstatement of the employee.[2]

Order for reinstatement conditional

Capacity to safely undertake the inherent requirements of previous position

Cartisano v Sportsmed SA Hospitals Pty Ltd [2015] FWCFB 1523 (Hatcher VP, Smith DP, Roe C, 12 March 2015).

Decision at first instance [2014] FWC 4928 (O'Callaghan SDP, 29 July 2014).

The employee was dismissed on medical incapacity grounds arising from a shoulder injury she had sustained in a motor vehicle accident. At first instance the Commission ordered the reinstatement of the employee 'subject to a risk assessment to be conducted by Sportsmed' (the Order).

The Full Bench considered that the words 'subject to' clearly conditioned the requirement to reinstate the employee upon a satisfactory outcome of the risk assessment. The Bench held that the Order was therefore not one which reinstated the employee and was beyond power. The Full Bench ordered that the employee be reinstated to her previous position with no conditions.