Background
In an earlier liability judgment, the Court found that Svitzer Australia Pty Ltd contravened s 340 of the Fair Work Act 2009 (Cth) by dismissing Geophrey Gavin because he exercised a workplace right, and by restructuring its operations in a way that made his position redundant and injured him in employment for that reason.
Mr Gavin sought reinstatement to a comparable senior role at Svitzer’s Newcastle Port, compensation for economic and non-economic loss, and a civil penalty. After his dismissal in May 2023, he obtained lower-level employment with Thales, but that employment ended through redundancy in July 2026. Svitzer opposed reinstatement and economic-loss compensation.
The Court’s Holding
Justice Needham declined to order reinstatement. Although reinstatement is ordinarily favoured following an unlawful dismissal, Mr Gavin’s former Port and Operations Manager role no longer existed, the proposed replacement role was also unavailable, and there was no comparable vacancy. Recreating a senior role that no longer met Svitzer’s operational requirements would impose a significant burden on the company.
The Court nevertheless held that, absent the unlawful “snap decision” to make Mr Gavin redundant, he and Svitzer would most likely have negotiated an arrangement under which he remained employed. It ordered compensation for specified past and future economic loss, medical expenses of $1,300, general damages of $15,000 for hurt and embarrassment, and pre-judgment interest on economic loss. The precise economic-loss figures were left for the parties to calculate consistently with the reasons. The Court also imposed one grouped civil penalty of $20,000, payable to Mr Gavin, for the two contraventions arising from the same conduct.
Key Takeaways
- Reinstatement may be refused where no comparable role exists and recreating one would significantly burden the employer.
- Compensation can still be awarded where unlawful adverse action caused the loss of a realistic opportunity to remain employed.
- Termination payments for notice and redundancy were credited against wage loss, but accrued leave payments were not.
- A single $20,000 penalty was imposed because the two contraventions stemmed from the same decision.
Why It Matters
The decision shows that an employer cannot avoid remedial consequences merely because an unlawful dismissal occurred amid a genuine broader restructuring. The Court distinguished between the legitimate elimination of Mr Gavin’s former role and the unlawful decision to remove any continuing senior role for him after he exercised workplace rights.
It also illustrates the breadth of relief available under the Fair Work Act: even where reinstatement is impracticable, the Court may award past and future economic loss, general damages, interest and a civil penalty directed to deterrence.