So the FWC ordered you to reinstate an employee – now what?


Being ordered to reinstate an employee is a tricky and sometimes uncomfortable process. HRM asks an expert how to make the experience as smooth as possible. 

HR professionals work hard to ensure their organisations never end up in front of the Fair Work Commission (FWC). But the unfortunate reality is that life isn’t perfect; sometimes recently terminated employees will file a complaint against their employer and sometimes the commission will order an employer to reinstate that employee.

Reinstatement can be awkward for an employer, and, if not managed properly, could have a negative impact on employees and a company’s culture. 

When an employee is reinstated, you must attempt to return them to the position they held prior to their dismissal. If this isn’t possible, the new role must be similar to their previous position with terms and conditions (such as remuneration and working conditions) that are no less favourable than their previous role. 

This can be  difficult for employers who have already backfilled the position. In this instance, employers will need to negotiate with the new employee as to whether they can be redeployed or if the organisation will need to terminate them. 

So you’ve possibly put out this new employee, but that’s often only the tip of the iceberg. What about the rest of the organisation? You need to consider the reinstated employee’s previous manager or colleagues, and, if the termination was the result of an investigation, the person who made the complaint.

Samantha De Vos, senior consultant at Worklogic, says reinstatement is a delicate process, but there are ways HR can  make it easier. 

Create a communication plan

De Vos suggests creating a communication plan to get out on the front foot of the issue before the employee returns. 

This plan could look similar to one you might create when communicating a restructure or major organisational change, and should include defined roles and responsibilities for communication and implementation, such as who is responsible for briefing the team, organisation and reinstated employee’s manager. 

A returning employee isn’t usually as disruptive as widespread job loss or insecurity, however, depending on the circumstances in which they were terminated, the shock waves of their return could feel as impactful to some employees.

De Vos suggests asking yourself these three questions while formulating the plan:

  1. What lessons were learned from the FWC’s decision? – “You might find that you need to retrain managers about certain policies or revisit your investigation procedures or  procedures for managing underperformance.”
  2. Who are the key stakeholders in the reinstatement process and what role do they play? – “For example, who can employees go to with questions about the reinstatement? Who will be managing the employee’s induction? Who can the employee go to if they’re having issues reintegrating?”
  3. What information will be shared, and with who? – “Your communication plan is about getting to the right people, in the right sequence, and in the right way.”

The thing to remember about FWC decisions is that they are made public; employees may already be aware of the reinstatement, and the reason the FWC sided with the terminated employee. So ensuring you’re in control of the narrative is really important. As we know, workplace gossip travels quickly.

It’s also possible that the employee’s colleagues see their return as justified or feel they were hard done by for being terminated in the first place.

“There is a risk that the decision could almost undermine management or the decision-maker who terminated the employee, so it becomes extremely important to have a transparent communication process to address these issues.”

HR will need to pay close attention to those who could be emotionally or mentally affected by the return of the employee, such as the line manager and the complainant if there is one. 

“Most organisations will have someone in a people and culture type role, and they should be staying pretty close to the entire process. They absolutely should be checking in with both the complainant, the person returning and the line manager.”

Create a personalised induction plan

Along with a communication plan, De Vos suggests you consider a personalised induction plan to reintegrate them into the organisation.

Your induction plan should take the following into consideration:

  • How many weeks the employee has been out of work.
  • What systems or procedures have changed that they might need to be retrained in?
  • What performance goals were in place before termination and do they need to be adjusted?
  • Are there any new stakeholders/colleagues they need to be introduced to?

“Some employees could feel a bit disgruntled when treated like a brand new employee, so there does need to be some sensitivity in your approach,” she adds.

Your approach to a personalised induction plan should be consultative, says De Vos, potentially going so far as to allow them to see the plan and what it covers.

It’s also important for employers to call a spade a spade in these situations.

“I think the worst thing is pretending it’s not potentially going to be tense having them back.

“You might say, ‘We want to support you and rebuild that relationship with XYZ. This is how we’re thinking of doing it and are you comfortable with that?’”

It might help to bring in a professional mediator or facilitator to assist in getting the ball rolling on rebuilding that relationship.

It’s important to make sure behavioural policies are covered in the induction, ensuring you pay particular attention to the behavioural issues that saw the termination occur in the first place.

However, De Vos warns that you need to manage this sensitively depending on the FWC findings. 

“You should present them as would to any new employee during an induction. You know, ‘This is our Code of Conduct. Make sure you read it carefully.’”

If the employee was terminated for performance reasons, De Vos doesn’t think you should be slapping them with a performance improvement plan on day one. You likely wouldn’t be outlining KPIs on a new hire’s first day, so you shouldn’t be doing so with a reinstated employee either.

HR will play a big part in managing the transition to make sure all employees, including the reinstated employee, feel supported. However, HR also needs to be supported during this time. 

De Vos says it’s important the organisation and senior leaders don’t try to pin the blame on HR or the decision-makers who terminated the employee to begin with.

“Investigations are hard work. So you would hope the organisation would support the investigator or HR manager to come to terms with criticism of their process, and try and take on any learnings for the organisation as a whole rather than putting all the responsibility on a particular person.”


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So the FWC ordered you to reinstate an employee – now what?


Being ordered to reinstate an employee is a tricky and sometimes uncomfortable process. HRM asks an expert how to make the experience as smooth as possible. 

HR professionals work hard to ensure their organisations never end up in front of the Fair Work Commission (FWC). But the unfortunate reality is that life isn’t perfect; sometimes recently terminated employees will file a complaint against their employer and sometimes the commission will order an employer to reinstate that employee.

Reinstatement can be awkward for an employer, and, if not managed properly, could have a negative impact on employees and a company’s culture. 

When an employee is reinstated, you must attempt to return them to the position they held prior to their dismissal. If this isn’t possible, the new role must be similar to their previous position with terms and conditions (such as remuneration and working conditions) that are no less favourable than their previous role. 

This can be  difficult for employers who have already backfilled the position. In this instance, employers will need to negotiate with the new employee as to whether they can be redeployed or if the organisation will need to terminate them. 

So you’ve possibly put out this new employee, but that’s often only the tip of the iceberg. What about the rest of the organisation? You need to consider the reinstated employee’s previous manager or colleagues, and, if the termination was the result of an investigation, the person who made the complaint.

Samantha De Vos, senior consultant at Worklogic, says reinstatement is a delicate process, but there are ways HR can  make it easier. 

Create a communication plan

De Vos suggests creating a communication plan to get out on the front foot of the issue before the employee returns. 

This plan could look similar to one you might create when communicating a restructure or major organisational change, and should include defined roles and responsibilities for communication and implementation, such as who is responsible for briefing the team, organisation and reinstated employee’s manager. 

A returning employee isn’t usually as disruptive as widespread job loss or insecurity, however, depending on the circumstances in which they were terminated, the shock waves of their return could feel as impactful to some employees.

De Vos suggests asking yourself these three questions while formulating the plan:

  1. What lessons were learned from the FWC’s decision? – “You might find that you need to retrain managers about certain policies or revisit your investigation procedures or  procedures for managing underperformance.”
  2. Who are the key stakeholders in the reinstatement process and what role do they play? – “For example, who can employees go to with questions about the reinstatement? Who will be managing the employee’s induction? Who can the employee go to if they’re having issues reintegrating?”
  3. What information will be shared, and with who? – “Your communication plan is about getting to the right people, in the right sequence, and in the right way.”

The thing to remember about FWC decisions is that they are made public; employees may already be aware of the reinstatement, and the reason the FWC sided with the terminated employee. So ensuring you’re in control of the narrative is really important. As we know, workplace gossip travels quickly.

It’s also possible that the employee’s colleagues see their return as justified or feel they were hard done by for being terminated in the first place.

“There is a risk that the decision could almost undermine management or the decision-maker who terminated the employee, so it becomes extremely important to have a transparent communication process to address these issues.”

HR will need to pay close attention to those who could be emotionally or mentally affected by the return of the employee, such as the line manager and the complainant if there is one. 

“Most organisations will have someone in a people and culture type role, and they should be staying pretty close to the entire process. They absolutely should be checking in with both the complainant, the person returning and the line manager.”

Create a personalised induction plan

Along with a communication plan, De Vos suggests you consider a personalised induction plan to reintegrate them into the organisation.

Your induction plan should take the following into consideration:

  • How many weeks the employee has been out of work.
  • What systems or procedures have changed that they might need to be retrained in?
  • What performance goals were in place before termination and do they need to be adjusted?
  • Are there any new stakeholders/colleagues they need to be introduced to?

“Some employees could feel a bit disgruntled when treated like a brand new employee, so there does need to be some sensitivity in your approach,” she adds.

Your approach to a personalised induction plan should be consultative, says De Vos, potentially going so far as to allow them to see the plan and what it covers.

It’s also important for employers to call a spade a spade in these situations.

“I think the worst thing is pretending it’s not potentially going to be tense having them back.

“You might say, ‘We want to support you and rebuild that relationship with XYZ. This is how we’re thinking of doing it and are you comfortable with that?’”

It might help to bring in a professional mediator or facilitator to assist in getting the ball rolling on rebuilding that relationship.

It’s important to make sure behavioural policies are covered in the induction, ensuring you pay particular attention to the behavioural issues that saw the termination occur in the first place.

However, De Vos warns that you need to manage this sensitively depending on the FWC findings. 

“You should present them as would to any new employee during an induction. You know, ‘This is our Code of Conduct. Make sure you read it carefully.’”

If the employee was terminated for performance reasons, De Vos doesn’t think you should be slapping them with a performance improvement plan on day one. You likely wouldn’t be outlining KPIs on a new hire’s first day, so you shouldn’t be doing so with a reinstated employee either.

HR will play a big part in managing the transition to make sure all employees, including the reinstated employee, feel supported. However, HR also needs to be supported during this time. 

De Vos says it’s important the organisation and senior leaders don’t try to pin the blame on HR or the decision-makers who terminated the employee to begin with.

“Investigations are hard work. So you would hope the organisation would support the investigator or HR manager to come to terms with criticism of their process, and try and take on any learnings for the organisation as a whole rather than putting all the responsibility on a particular person.”


Have a workplace question you can’t find the answer to? Ask an expert through AHRI:Assist. Exclusive to AHRI members.


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