Failure To Reinstate In Terms Of An Agreement

In the absence of an agreement, an employer may decide to dismiss and rehire the same employee under a new contract (“reinstatement”). As Davis AJA pointed out to Kroukam (and I respectfully agree), a reinstatement order reinstates the old contract and any amount to be paid to the worker under that contract is necessarily due to the worker for that reason alone. Perhaps a court (or arbitrator) that issues such an injunction can also order that some of that compensation be non-refundable (I make no findings on this point), but I agree with Davis AJA that the compensation is due under the terms of the contract itself. ` [9] Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186; cited in Nguyen v IGA Distribution (Vic) Pty Ltd [2011] FWA 3354 (Bissett C, 3 June 2011), paragraph 2.