RE-INSTATEMENT ISSUESSeptember 07, 2023
A worker seeking reinstatement will have another opportunity to have his unfair dismissal application heard, after a full bench quashed Deputy President Boyce’s decision made earlier this year.
The Active Crane Hire worker was dismissed on the spot when his yard manager found him asleep in his truck. The worker gave evidence that he was simply resting and unable to work due to bad weather at the time.
Deputy President Boyce found that while the reason for dismissal was valid the employer hadn’t afforded the worker procedural fairness and ordered compensation to be paid to the worker. The worker’s request for re-instatement was considered inappropriate by the deputy president as he believed there was “clear animosity between him and the employer’s management’’.
The Full Bench remitted the worker’s application for a remedy to Commissioner Johns for redetermination after finding the Deputy President’s decision that there was a valid reason for dismissal as ‘’unsound’’. He also failed to take into account that the yard manager by his own admission had sent his other workers home early at 2:30pm, an important piece of evidence considering the worker dismissed was found asleep at 2:45pm.
Regarding the matter of re-instatement and animosity between the manager and worker the Bench said that Active Crane submitted no such evidence at the hearing that could be relied upon to support such a finding and that if the Deputy President had formed such a view, he ‘’should have put the worker on notice that this finding was in his contemplation and the basis for it’’.
The question of trust and confidence is often raised by employers, but in reality, in this day and age, it should be a very bad relationship which prevents re-instatement.