LLA 1120 Reinstatement as a remedy for unfair dismissal

LLA 1120 Reinstatement as a remedy for unfair dismissal

The ordinary meaning of the word “reinstate” is to put the employee back into the same job or position he or she occupied before the dismissal, on the same terms and conditions. Reinstatement is the primary statutory remedy in unfair dismissal disputes. It is aimed at placing an employee in the position he or she would have been but for the unfair dismissal. It safeguards workers’ employment by restoring the employment contract.

Table of Contents

1.             The law: the prime remedy -Section 193(2)                  2

2.             What does an order for “reinstatement” mean?      2

3.             Reinstatement as the prime remedy for unfair dismissal  4

4.             When reinstatement would not be appropriate        5

4.1          The employee does not wish to be reinstated or re-employed       5

4.2          The circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable   5

4.3          When it is not reasonably practical to do so                6

4.4          The dismissal is unfair only because the employer did not follow a fair procedure.         7

4.5          Case study       7

5.             Reinstatement in different circumstances 7

5.1          Reinstatement where the employee’s position no longer exists   7

5.2          Can reinstatement be ordered to a different position?        8

5.3          Reinstatement after a long delay       9

6.             The application of an order for reinstatement            9

6.1          The employee must tender his services        9

6.2          The question of back pay: how much should be paid?        10

7.             Effect of reinstatement when award taken on review           11

8.             The effect of offers to reinstate a dismissed employee       12

9.             Reinstatement orders in an award    13

10.          Conclusion       13