Federal Court of Australia · [2026] FCA 1582
A port manager was dismissed during a restructure while a proposed replacement role was still being discussed.
Plain-English explainers, not legal advice. Use the linked official source for section-level detail, and get advice for your situation.
Get legal helpQuick read
Use this to check
Practical read
Practical takeaways
Svitzer did not have to recreate a senior role that no longer fit its Newcastle Port structure. The Court therefore refused reinstatement.
But the business still had to compensate Mr Gavin for the consequences of the unlawful decision that ended the negotiation over a continuing role. The remedy included past and future economic loss, medical expenses, $15,000 in general damages and a $20,000 civil penalty.
Mr Gavin's existing position was already due to disappear. That part of the restructure had been planned and was not itself retaliation. Management had also proposed a different senior role and was still discussing its scope and remuneration with him.
The legal problem was the reason for the later snap decision. The earlier judgment found that Svitzer removed any continuing role because Mr Gavin exercised a workplace right. The remedy judgment described a decision made out of irritation at his attitude. What had been a negotiation became a dismissal.
Key points
Reinstatement is an important remedy after an unlawful dismissal, but it is not automatic. By October 2026, the old role was gone, the proposed replacement role was unavailable and no current Newcastle position offered comparable duties and pay.
The Court accepted that creating a job solely to reinstate Mr Gavin would impose a significant burden and would not meet the business's operational requirements. It addressed the contravention through compensation instead.
| Component | Approach |
|---|---|
| Past economic loss | Svitzer remuneration, bonus and superannuation compared with later earnings, subject to the Court's dates and assumptions |
| Termination payments | $64,500 for notice and redundancy credited against loss; accrued leave not credited |
| Future economic loss | Calculated to 31 May 2028 using Svitzer remuneration, bonus, superannuation and CPI, with a 3% discount for upfront payment |
| Medical expenses | $1,300 |
| General damages | $15,000 for hurt and embarrassment caused by the dismissal |
| Civil penalty | $20,000 for the grouped contraventions, payable to Mr Gavin |
The judgment is a warning about decision discipline, not a ban on restructuring. A business should be able to show why the position is changing, what alternatives were considered and why the final decision is independent of any protected complaint or inquiry.
Key points
Not in full. The Court accepted that Mr Gavin's original Port and Operations Manager role was genuinely being removed through careful planning. The contravention was the later decision to sweep aside his continuing employment and redesign the structure so that no role remained for him because he had exercised workplace rights.
His old role no longer existed, the proposed replacement role was no longer available and the remaining jobs were materially different and lower paid. The Court found that recreating a comparable senior role would impose a significant burden on Svitzer's current operations.
The judgment set the method and components rather than one final total. It required compensation for specified past and future economic loss, medical expenses and general damages, with interest. The parties were directed to calculate the economic amounts and provide draft orders.
That amount represented notice and redundancy payments. Crediting it avoided paying twice for the same period of loss. Accrued annual and long service leave were treated differently because they were entitlements earned before dismissal.
Risk arises if an employer dismisses an employee or alters their position because the employee exercised a workplace right. The earlier liability judgment made that finding against Svitzer. Whether a particular complaint, inquiry or other action is protected depends on its content, context and legal basis.
Federal Court sets remedy for retaliatory restructure dismissal
The Federal Court refused reinstatement after a genuine restructure removed the old role, but ordered compensation, general damages and a civil penalty for the unlawful decision that ended the employee's continuing employment.