Unfair Dismissal, Reinstatement and Garden Leave: Blackadder V Ramsey Butchering Services PTY LTD

Publication Date01 September 2005
DOI10.22145/flr.33.3.6
AuthorShae McCrystal
SubjectArticle
UNFAIR DISMISSAL, REINSTATEMENT AND GARDEN
LEAVE: BLACKADDER V RAMSEY BUTCHERING SERVICES
PTY LTD
Shae McCrystal*
INTRODUCTION
In most cases, the employment relationship is capable of withstanding some friction and
doubts … It may be difficult or embarrassing for an employer to be required to re-employ
a person the employer believed guilty of a wrongdoing. The requirement may cause
inconvenience to the employer. … The problems will be of the employer's own making. If
the employer is of even average fair-mindedness, they are likely to prove short-lived.1
A reinstatement order made by the Australian Industrial Relations Commission
('AIRC') is designed to restore the employment relationship after a finding that an
employee has been unfairly dismissed. Unlike the traditional reluctance in the
equitable jurisdiction to order specific performance of contracts involving a personal
service element, the ability to order reinstatement in the Workplace Relations Act 1996
(Cth) ('WRA') recognises that ongoing work relationships are 'capable of withstanding
some friction and doubts'. But what if an employer is not of even average fair
mindedness?
The reinstatement of an unfairly dismissed employee by the AIRC is usually the
end of the legal process for that worker.2 However, for Steven Blackadder, an unfairly
dismissed abattoir worker, it was only the beginning. Instead of a return to active
duties pursuant to an AIRC reinstatement order, Mr Blackadder was instructed to stay
home, on full pay, where he remained for five years until the High Court ruled that
reinstatement under the federal unfair dismissal jurisdiction means more than just the
payment of a wage.
_____________________________________________________________________________________
* Lecturer, Faculty of Law, Australian National University. I would like to thank Professor
Phillipa Weeks, Dr Fiona Wheeler and the anonymous referee for their helpful comments
on an earlier draft of this article.
1 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186, 191–2 (Wilcox CJ, Marshall and
North JJ).
2 For discussion of potential difficulties that can arise after a reinstatement order is made by
the AIRC and not covered by this note see Hedy Meggiorin, 'Reinstatement under the
Workplace Relations Act (Cth): Is it Practicable, Appropriate or Just Plain Speculative?'
(1999) 27 Australian Business Law Review 438.

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