s.394 - Unfair dismissal

Application for an unfair dismissal remedy - remedy - Applicant recovered from injury - parties consent to reinstatement - Applicant obtained additional part-time employment - reinstatement to part-time position ordered - order to maintain continuity of employment and continuous service - order to restore lost pay - workers' compensation payments discounted.

• [1] On 3 November 2025, I issued a decision[1] where I determined that Ms Julie-Ann Ellis had been unfairly dismissed by Beach Hotel Stradbroke Island No.2 Pty Ltd (the Respondent). Having been provided with further evidence and submissions of the parties, and after convening a further hearing of the parties on 26 November 2025, this is my decision in respect of the remedy for the unfair dismissal.

• [2] Ms Ellis was dismissed on 31 March 2025 and up until 19 September 2025, she was in receipt of workers' compensation payments for an injury she sustained whilst at work in February 2025.

• [3] From April 2025, the Respondent's hotel on North Stradbroke Island has been undergoing extensive renovations which have resulted in some of its hotel staff, including managers, being moved to work shifts in the Respondent's three bottle shops on the island. The hotel renovations are near complete, and those employees will soon return to work at the hotel.

• [4] Section 390 of the Fair Work Act 2009 (the Act) reads as follows:

"390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person's reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies."

• [5] Sections 391(1)-(1A) of the Act provide as follows:

(1) An order for a person's reinstatement must be an order that the person's employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person's employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal."

• [6] Ms Ellis seeks reinstatement with the Respondent to the role of Bottle Shop Attendant for two days per week, namely Tuesday and Thursday. She has secured additional employment for 18 hours per week with another employer on the island and she does not seek reinstatement with the Respondent in her earlier full-time capacity. The Respondent is agreeable to Ms Ellis being reinstated for only two fixed days per week at its Dunwich bottle shop.

• [7] Ms Ellis was examined by Dr Robin 'Sid' O'Toole on 1 September 2025. Dr O'Toole provided his report of Ms Ellis to WorkCover Queensland on 15 September 2025, declaring that Ms Ellis had 0% Whole Person Impairment, and provided responses to the following questions:

"1. In your opinion, is the work-related condition stable and stationary? If so, please provide permanent impairment details:- Permanent impairment template

Yes, I consider that the work-related condition has now reached a stable and stationary state, and is at maximum medical improvement, and Permanent Impairment has been undertaken.

1. If the Permanent Impairment is 0%, has the incapacity because of the work related injury/ies of 02 Feb 2025 stopped?

The work related injuries have reached a stable and stationary state, and have reached maximum medical improvement, and there is no ongoing incapacity related to the injury/ies of 02/02/2025.

1. If the Permanent Impairment is 0%, is the injury of 02 Feb 2025 likely to improve with further medical treatment of hospitalisation? If so, what are your rehabilitation/medical treatment recommendations and what functional gains can be anticipated?

No, the work related injuries have reached a stable and stationary state, and have reached maximum medical improvement."

• [8] Following receipt of Dr O'Toole's report, WorkCover Queensland ceased making workers' compensation payments to Ms Ellis after 19 September 2025.

• [9] Ms Ellis was examined by her general practitioner on 6 November 2025. The medical letter states:

"Julie-Ann Ellis sustained a lower back injury at work on 02/02/2025. She received appropriate treatment for this, and underwent the recommended comprehensive rehabilitation program with a physiotherapist.

We acknowledge that Julie-Ann has reached full recovery as expected by the physiotherapist. She has full capacity to work as a Bottle Shop Attendant. She can lift up to 15kg with correct lifting technique.

Julie-Ann is continuing with building and strengthening to prevent further injury in the future.

• [10] In Smith v Moore Paragon Australia Ltd,[2] a Full Bench of the Australian Industrial Relations Commission said (in relation to an unfair dismissal remedy application under the Workplace Relations Act 1996):

"[51] The weight to be accorded to ongoing incapacity on the part of an employee when considering whether reinstatement pursuant to s. 170CH(3) is appropriate will depend on all the circumstances of the case. However, when considering whether reinstatement is appropriate for an employee who has an ongoing incapacity arising from illness or injury, the guiding principle ought be that generally reinstatement of a materially incapacitated employee will not be appropriate where:

• further performance of the employee's contractual obligations in the future would either be impossible or would be a thing radically different from that undertaken by him or her and accepted by the employer under the agreed terms of his or her contract of employment;
• reinstatement would involve imposing a material future productivity burden or some other unreasonable burden on the employer; or
• reinstatement would impose an unreasonable burden on other employees.

Exceptional circumstances would be necessary before reinstatement could properly be regarded as appropriate in such cases.

[52] Reinstatement will involve a material future productivity burden on an employer when the employee cannot be fully or substantially fully productive within the ambit of the employee's substantive position."

• [11] During the hearing, Ms Ellis gave evidence that she could safely work in the bottle shop. She stated that she would be careful when lifting items above her shoulders, and they would be limited to small combinations of ready-to-drink consumables, and certainly not cartons of beer. The Respondent's witnesses gave evidence that Ms Ellis' suggestion was sensible and could be accommodated.

• [12] Further, the Respondent's witnesses gave evidence that if there were deliveries of stock on a Tuesday or a Thursday, appropriate assistance is routinely given by another member of staff from either the hotel or another bottle shop, and this allows the bottle shop attendant to continue to serve customers and assist with the delivery, when available.

• [13] Having regard to the medical evidence presented to the Commission and in consideration of the duties required of a bottle shop attendant, I am of the view that it is safe for Ms Ellis to return to work as a Bottle Shop Attendant for 16 hours per week. She seeks accommodations not to lift very heavy items above her shoulders which the Respondent has committed to accommodating. The accommodation is minor and does not impose a material future productivity burden on the Respondent and other employees. I am satisfied that Ms Ellis will be substantially fully productive within the ambit of her role.

• [14] I have chosen to exercise my discretion and consider it appropriate in the circumstances to order, pursuant to s.391(1) of the Act, that Ms Ellis be reinstated to the position of Bottle Shop Attendant at the Dunwich bottle shop for the current hours of 9:45am - 6:15pm, Tuesday and Thursday each week as a part-time employee. If there is any requirement for those hours and days to change, the parties will need to consult as is required pursuant to the Hospitality Industry (General) Award 2020 (the Award).

• [15] The parties are agreeable for Ms Ellis to be reinstated from 9 December 2025.

• [16] Section 391(2) of the Act provides as follows:

(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

(b) the period of the person's continuous service with the employer, or (if subsection (1A) applies) the associated entity."

• [17] In all the circumstances, I consider it appropriate to make an order pursuant to s.391(2) to maintain the continuity of the employment and the period of continuous service for all purposes, other than in respect of:

(a) the accrual of long service leave in the period between termination and reinstatement;

(b) the accrual of annual leave in the period between termination and reinstatement; and

(c) the accrual of personal leave in the period between termination and reinstatement.

• [18] The relevant considerations when determining if lost pay should be ordered are set it in ss.391(3) and (4) of the Act:

(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:

(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement."

• [19] Ms Ellis was declared medically fit to return to work in mid-September 2025 and pressed the Commission to determine her application. On account of the many reserved decisions I had at the time, I did not have capacity to determine Ms Ellis' merit application until early November 2025. But for the capacity to issue a detailed and comprehensive written decision, I would have likely reinstated Ms Ellis as a casual employee for approximately 10 hours per week on account of the bottle shop work that needed to be shared among other colleagues who had been displaced on account of the hotel building works. The casual rate of pay would have applied.

• [20] In all the circumstances, I consider it appropriate to award lost pay in the following amount:

Week commencing 22 September - 28 November 2025 = 10 weeks

10 hours per week x $32.31 (Level 2 casual rate of pay) = 10 x 10 x $32.31

• [21] I have not awarded any lost pay for the week of 1-5 December 2025 on account of Ms Ellis' unavailability to work due to private matters.

• [22] I have also not awarded any lost pay for the period from the date of dismissal until the week commencing 22 September 2025 as Ms Ellis was in receipt of weekly workers' compensation payments which would far have exceeded the remuneration she would have earned if she had not been injured, considering the reduced hours of work available in the bottle shops across the island.

• [23] Ms Ellis will be reinstated to the role of Bottle Shop Attendant on Tuesdays and Thursdays as a part-time employee for eight hours per day (excluding unpaid meal breaks) at the Dunwich bottle shop effective 9 December 2025. Ms Ellis will maintain continuity of her employment and her continuous service other than in respect of long service leave, annual leave and personal leave accruals for the period between termination and reinstatement.

• [24] I have determined that the Respondent is to pay to Ms Ellis the amount of $3,231.00 less taxation as required by law together with the amount of $387.72 into Ms Ellis' superannuation account.

A separate order will issue giving effect to this decision.

[1] Julie-Ann Ellis v Beach Hotel Stradbroke Island No.2 Pty Ltd [2025] FWC 3302.

[2] [2004] AIRC 57; (2004) 130 IR 446.

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