A Primary Remedy in Dispute Resolution
When the Employment Relations Act first came into existence in 2000, the primary remedy for the resolution of personal grievances was the reinstatement of the Employee. This proved very difficult for both the Employment Relations Authority and the Employment Court. As such, after much lobbying, this provision was removed from the legislation.
However, after further lobbying from Unions, the Labour led Coalition Government reinstated this provision to the legislation effective as of 6 May 2019.
This has led to significant concern being expressed by Employers.
In a paper presented by Chief Judge Christina Inglis of The Employment Court in mid-2019, the Judge outlined the approach to be adopted by the employment jurisdictions when asked to consider the reinstatement of Employees.
In summary, the Authority and the Court are encouraged to reinstate the Employee to their former position, if this is a claim of the Employee within their personal grievance – if they are successful in their claims, regardless of how much time may have passed since the date of the Employees termination.
This raises a significant number of concerns for the Employers including;
- Is it practical to have the Employee back if the relationship between the parties is already dysfunctional?
- What happens if we have already employed a new person into the role previously undertaken by that Employee?
- Is it possible to redeployee the returning Employee into a different role?
- What happens if the person was ‘incompetent’ in their role with this being the reason for their initial termination?
- What do we have to do if it is untenable to have the Employee return to work?
Judge Inglis in her address reinforced that these concerns are not the responsibility of the Authority or the Court to resolve but rather are the responsibility of the Employer to facilitate if the Employee is successful in their reinstatement claims.
Concern for this has resulted in many Employers considering entering into full and final settlements with Employees at the time of termination, as opposed to waiting to confirm whether the Employee raises a personal grievance or not. While this approach may result in the Employer incurring some cost, when compared to the potential of the Employee being reinstated, this may be viewed as a sound investment to take away several months of stress and anxiety. It is important however to ensure that the amount of payment provided within any full and final settlement is realistic and that the Employer is not ‘overpaying’ to eliminate a potential risk of reinstatement.
If you are therefore facing a potential dismissal situation where you believe that there is a real risk of a personal grievance being raised and a reinstatement claim being submitted, and wish to consider the options associated with a full and final settlement please feel free to contact us for a confidential discussion.