Can I get my old job back and the wages I missed out on after being unfairly sacked?

The situation

I am writing from Melbourne, Victoria, because I am feeling quite lost after being let go from my retail management role last month. On the 14th of October, my manager told me I was being dismissed effective immediately, which felt completely unfair as I have worked there for three years without any issues. Since that day, I have been struggling to pay my bills. I have managed to find some casual shifts at a different shop to keep some money coming in, earning about $650 a week, but it is nowhere near my regular salary of $1,200 per week. I have already tried speaking to my former boss to ask for my job back, but they refused to even listen to me. My main concern is that even if a tribunal decides I should be reinstated, I am worried my previous length of service will be reset to zero. I want to know if I can actually get my original position back—or something similar with the same pay—and if I can claim the difference in wages I lost between being fired and getting my job back, while also making sure my three years of continuous service still counts towards my long service leave.

Detailed Analysis

Under the Fair Work Act 2009, if the Fair Work Commission (FWC) finds you were unfairly dismissed, they can order your former employer to give you your job back. This is called reinstatement. The law states that an order for reinstatement must be an order that the person's employer... 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^[1]. This means you could potentially return to your retail management role or a similar one with the same pay and conditions.

Regarding your concern about your three years of service, the FWC can protect your seniority. The law provides that if the FWC makes a reinstatement order, it "may also make any order that the FWC considers appropriate to maintain the following: (a) the continuity of the person's employment; (b) the period of the person's continuous service with the employer"^[1]. This means they can order that your three years of service are not reset to zero, which is vital for your long service leave.

You can also seek to recover the money you lost while unemployed. The FWC can order your 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"^[1]. In calculating this amount, the FWC will look at the $550 weekly difference between your regular $1,200 salary and the $650 you are currently earning from casual shifts^[1].

It is important to note that reinstatement is not guaranteed. The FWC will only order it if they believe it is appropriate. If they decide reinstatement is not suitable, they might instead order compensation (money paid instead of getting the job back). State-based employment laws or specific enterprise agreements may also apply to your situation.

Statutory Citations

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