Redress under the Unfair Dismissals Act
Ordinarily, when an individual makes a claim of unfair dismissal, they will be asked if they are seeking reinstatement, re-engagement or compensation. The vast majority of employees ordinarily seek just compensation. This is usually driven by a personal desire not to return to the same workplace.
However, there are occasions when employees do seek reinstatement or re-engagement. In many instances, this motivation is driven by a desire to resume employment with the former employer so as to avail of the ancillary benefit schemes that may have previously been on offer (e.g. pension scheme, health insurance scheme, life cover etc.).
However, given the often acrimonious circumstances that led to a dismissal, the Workplace Relations Commission tends not to recommend reinstatement or re-engagement, in the majority of cases. Compensation is usually considered the most appropriate form of redress.
In this article, we explain why.
Reinstatement under the Unfair Dismissals Act
The Unfair Dismissals Act, 1977 as amended describes reinstatement as follows at section 7(a):
7.— (1) Where an employee is dismissed, and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following, the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:
(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal…”
In A Bus Driver -v- A Bus Service Provider (ADJ00023589), the complainant employee sought reinstatement as the appropriate form of redress. The Workplace Relations Commission determined that, having successfully pursued his claim of unfair dismissal, he should be compensated rather than reinstated.
The Adjudication Officer noted that:
“Having considered all the circumstances and evidence in this case I believe that the appropriate remedy in this case is reinstatement to the position he held on 13 August 2019.
Reinstatement means that Complainant should return to his original position with the Respondent and be treated in all respects as if he had not been dismissed.”
Appeal to Labour Court
The Workplace Relations Commission determined that the employee should be reinstated to his original position with the respondent company and be treated, in all respects, as if he had not been dismissed. The respondent employer, Bus Eireann, appealed this decision to the Labour Court, noting that reinstatement was not an appropriate remedy under the circumstances.
The Labour Court noted that reinstatement is generally granted where the employee is found not to have contributed to their dismissal. In this case, there were ongoing issues with the manner in which the complainant was conducting himself while carrying out his duties. It was the position of Bus Eireann that these issues were raised with the complainant employee and that he failed to address them satisfactorily. In those circumstances, the Labour Court accepted that the respondent’s position, that the trust and confidence between the parties was irrevocably broken, was accepted. The respondent noted that there were trust issues that would make his return to the workplace unviable and therefore neither reinstatement nor re-engagement were appropriate remedies.
That being the case, the Labour Court considered compensation to be the appropriate form of redress and, taking into account the loss being claimed on all other relevant factors, determined that the appropriate compensation was €5,000.
Conclusion
The takeaway for both employers and employees is that, while reinstatement or re-engagement is, in theory, an available remedy to a successful complainant, given the often acrimonious circumstances leading to the termination of employment, the Workplace Relations Commission and Labour Court will be very slow to recommend that an employee be returned to the workplace.
Further Information
For further information, please contact the author of this article, Barry Crushell.
