When an employer resists restoration of an employment relationship on appeal, the onus is on the employer to make out its contentions based on credible evidence. The Appeal Board must consider whether reinstatement is workable having regard to all relevant factors including trust and confidence.

Reinstatement is the presumptively preferred remedy for unfair dismissal, and compensation must only be ordered where the decision-maker is satisfied that reinstatement is inappropriate.

Where the employment relationship has irretrievably broken down due to animosity between an employee and a senior manager, reinstatement is inappropriate despite being the presumptively preferred remedy.

An order that an employer employ a person as and from a date preceding the order is retrospective in nature and changes the rights and obligations of the employer and person with effect prior to the order. The statutory power to give retrospective effect requires 'special circumstances which make it fair and right' and does not extend beyond the date the application was lodged.

An order to employ should generally require the employer to engage the worker upon presentation for work at a specified place and time on agreed or specified terms and in a specified position, rather than purporting to 'reinstate' a non-existent prior contract of employment.

The line between discretionary and evaluative decisions is drawn by reference to whether the legal criterion demands a unique outcome (correctness standard applies) or tolerates a range of outcomes (House v The King standard applies).

When an employer dismisses an employee for misconduct, there is an implied loss of trust and confidence in the employee. If termination is subsequently found to be harsh, unjust or unreasonable, the question of whether the relationship can be restored upon reinstatement cannot be answered solely by reference to the views of management witnesses; all circumstances must be taken into account.

In assessing whether reinstatement is appropriate, relevant considerations include: whether all alleged misconduct has been proven; the employee's record in performance of core professional duties; whether the misconduct is directly related to professional performance; consistency in disciplinary treatment of other employees; and the consequences of job loss for the employee.

When assessing whether reinstatement is inappropriate after finding dismissal was harsh, unjust or unreasonable, all circumstances should be taken into account, including whether not all alleged conduct has been proven, the respondent's prior record in performance of duties, whether the misconduct is directly related to professional duties, and consistency of disciplinary approach with other employees. With a positive approach on both sides there may be a reasonable chance that the employment relationship can be restored with the necessary level of mutual trust.

Under s23A(1)(ba) of the WA Industrial Relations Act, the Commission can only order compensation (not reinstatement) where either reinstatement is impracticable or the employer has agreed to pay compensation instead; the agreement required is that of the employer alone.

Reinstatement is impracticable where a restructuring of operations has been implemented and, on the evidence of workplace conduct, a reasonable working relationship cannot be established between the dismissed employee and the employer's staff.

To 'reinstate' means to put back in place. In the context of s 170CH, reinstatement requires restoration of the employment situation, as it existed immediately before termination, restoring the terms and conditions of employment in the broadest sense and requiring that the employee be given back his 'job' at the same place and with the same duties, remuneration and working conditions as existed before termination.