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A Novel Approach to Reinstatement

by | Sep 23, 2021 | Workplace & Employment

The primary remedy under the Fair Work Act 2009 for an unfair dismissal is reinstatement.

In employment relationships where the Act does not apply the usual remedy for wrongful termination of employment is damages.

Schneider v Warrnambool City Council [2021] VSC 337 is a demonstration of how administrative law remedies were used to obtain effective reinstatement of employment.

Mr Schneider was the CEO of Warrnambool City Council.

Within months of his appointment in early 2020 a group of councillors, unhappy with his performance, determined to terminate his employment.

Although his employment was governed by a contract of employment his role as CEO also had as its foundation the Local Governments Acts of 1989 and 2020 (Victoria).

There was a tension between the termination provision in the employment contract and the legislative power to terminate employment. The contract provided for termination for no reason whereas the legislative power to terminate required conformity with the rules of natural justice.

When Mr Schneider was notified of the move against him he wrote to the mayor asking for “written details of the issues which have prompted the termination to be considered and to be allowed a reasonable period to respond to the issues”.

No response was provided.

Mr Schneider had his employment terminated at a Council meeting with no reason provided and without his being able to put a case against termination of employment.

In accordance with his contract Mr Schneider was paid 12 months salary.

He sued for the Council’s decision to quashed on the basis that in making it the Council failed to afford him natural justice.

Justice McDonald found that the legislative power to terminate employment overrode the contractual provision. Therefore the Council was obliged to provide reasons and give Mr Schneider the opportunity to respond. Because it had not done so the termination decision could not stand and as a result Mr Schneider’s employment effectively continued.

The Council thought, wrongly, that provided Mr Schneider was paid a substantial sum as the contract provided, that the decision to terminate employment was unassailable.

For further advice concerning issues relating to termination of employment, please contact our workplace relations lawyers on melbourne@nevettford.com.au or (03) 9614 7111.