Fired at will? The job could be yours
OPINION: An employment relationship is sometimes compared to a marriage – except for one important difference. In a marriage, if one party wants to leave, they can not be ordered by the court to take the other back.
This is what happens in the employment context when the court orders reinstatement.
One of the changes to employment law currently being considered by Parliament is the restoration of reinstatement as the ‘‘primary remedy’’ for unjustified dismissal claims.
This means that where an employee is successful in an unjustified dismissal claim, the Employment Relations Authority (ERA) must reinstate them if it is ‘‘reasonable and practicable’’ to do so. That is, if the employee wishes to be reinstated.
This varies from the current position which is that the authority has the discretion not to award reinstatement, even where it is reasonable and practicable.
The status of reinstatement has been something of a political football in recent years with both
SUSAN HORNSBY-GELUK
National and Labour disagreeing over the effectiveness of giving it primacy as a remedy.
On one hand, unions and many academics argue that the apt remedy for unjustified dismissal is reinstatement, and removing it as the primary remedy weakens the principle of fairness.
On the other, when removing reinstatement as the primary remedy in 2011, National argued that its status as the primary remedy had little effect on the outcome of personal grievance cases, and only served to increase the effort required by employers in proving that reinstatement was not feasible.
What is clear is that, whether or not reinstatement is the primary remedy seems to have little effect on how much it is awarded.
In 2006, only 14 out of 882 ERA determinations resulted in reinstatement being awarded. After it was removed as the primary remedy in April 2011, nine out of 798 determinations resulted in reinstatement being awarded in the subsequent year. So, not a lot of difference.
Politicking aside, reinstatement remains an important and valuable remedy for employees who have been unjustifiably dismissed.
In one older case, Northern Hotel etc IUOW v Rotorua Returned Services Assn (Inc), Mrs Murphy, a club stewardess at the Rotorua RSA, was reinstated after being dismissed for drinking on the job and, in the employer’s opinion, being unable to perform her duties because of her level of intoxication.
The employer had undertaken an investigation into the conduct, although due to procedural deficiencies, the Labour Court found that it had not proven on the balance of probabilities that the conduct had occurred.
Though the employer had sought the opinions of fellow staff members, who corroborated the alleged conduct, they failed to give Murphy a chance to comment on or refute the allegations. The court awarded reinstatement despite strong objections from Murphy’s fellow staff members, stating that the ‘‘opinions of fellow staff and management about reinstatement are not generally of persuasive weight’’.
In another case, Harris v The Warehouse Ltd, Ms Harris was dismissed after being involved in a verbal altercation with a customer. Harris had requested that a customer remove her dog from the store, but after the customer refused, she allegedly became intimidating and called the customer’s husband an ‘‘arrogant prick’’.
After investigating the alleged conduct, The Warehouse concluded that Harris had used the derogatory phrase and that her behaviour amounted to serious misconduct warranting dismissal.
The ERA found the decision to dismiss Harris was not fair and reasonable and that she was unjustifiably dismissed. However, given Harris’ contribution to the situation, the authority declined to award any remedies.
On appeal, the Employment Court disagreed and held that as the derogatory comments were not included in the customer’s complaint, it was not conclusive that the words had been said.
The dismissal was found to be unjustified and the employee was reinstated to her previous position or one ‘‘no less advantageous’’.
Reinstatement is nearly always fiercely opposed by the employer. In this regard, employers do not generally go to the trouble of dismissing a staff member and defending a personal grievance, only to then welcome the employee back with open arms.
For employees, the situation is
It cannot be easy going back into a workplace that you have been fired from.
highly problematic. It cannot be easy going back into a workplace that you have been fired from. But many employees feel they have little choice given that they need the job and may struggle to find another in the short term.
So, reinstatement is an important remedy, both practically and in terms of holding employers to account. If there was no risk of an employee being reinstated, a wealthy employer could simply fire staff at will and then pay them off. It simply becomes a matter of how much.
Retaining reinstatement as a remedy provides a strong motivation for employers to act fairly and reasonably when dismissing staff.
❚ Susan Hornsby-Geluk is a partner at Dundas Street Employment Lawyers. www.dundasstreet.co.nz