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Reinstatement means what it says

Excerpts from this article first published in ‘Human Resources’ Magazine, Issue 85, 26 July 2005

In Blackadder v Ramsey Butchering Services Pty Ltd, the High Court has held that an employer who continued to pay the employee but refused to allow him to resume work was in breach of a reinstatement order of the Australian Industrial Relations Commission (AIRC).

Mr Blackadder, a boner in a meatworks was dismissed by his employer, Ramsey Butchering. Mr Blackadder made an unfair dismissal application to the AIRC who ordered his reinstatement “to the position in which he was employed prior to the termination of his employment.” Ramsay Butchering would not allow Mr Blackadder to resume work and eventually stopped paying him because he refused to undergo a medical assessment. The worker appealed to the Federal Court and then to the High Court.

A joint judgement of the High Court held that "reinstate means literally to put back in place." To pay the employee but not put him back in his position in the workplace would not be to 'reinstate' him. There were no preconditions to the reinstatement order made by the AIRC such as Mr Blackadder should pass a medical.

The High Court observed that the common law position where an employer needs not provide an employee with actual work was displaced by the relevant provisions of the Federal Workplace Relations Act that gave the AIRC the discretion to order the reinstatement of an unfairly dismissed employee by requiring the employer to reappoint the employee “to the position in which the employee was employed immediately before the termination.”

The High Court also observed that the purpose of a reinstatement order is not to “anticipate every eventuality” that may arise after the employee was reinstated or to provide the employee “with employment for life.”

HR Tips

Although an employer has an obligation to ensure health and safety at the workplace, requiring an employee to undergo a medical examination before offering continued work to the employee, carries risks for the employer. Careful consideration should be given to the need or justification for such a requirement.

Employers should also note that an employee’s medical information is protected by privacy legislation.

Gordon Jervis
Senior Associate
Australian Business Lawyers