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When an employer argues against reinstating a worker whose dismissal has been ruled unfair, it must go beyond setting out some grounds for lost trust and confidence and asking the Fair Work Commission to "assume" such a loss has occurred, a new decision shows.

In conducting a "rigorous examination" of whether reinstatement was appropriate for an employee sacked for misconduct, FWC Deputy President Peter O'Keeffe said the onus was "squarely" on employers to provide "sound and rational argument and make out the case that trust and confidence has been lost".

The case involved a truck driver employed by Phosphate Resources Limited, who was dismissed earlier this year for serious misconduct.

In unfair dismissal proceedings that HR Daily reported in detail here, Deputy President O'Keeffe found the employer had a valid reason to sack the employee, who had taunted a coworker about "sucking the boss's dick" then "doubled down" on his behaviour after the coworker complained, engaging in "victim-blaming"...