An employment relationship is like any other relationship and involves two consenting parties (employee and employer) and expectations from both ends (contractual obligations).
Conflicts in the workplace can arise as in any other relationship, and if not resolved they can lead to a trade dispute. A trade dispute could land both parties either at the Labour Department or before the courts.
The Trades Disputes Act provides legal systems through which disputes can be resolved in the workplace. In simpler terms, the Act provides a guide through which workplace disputes can be resolved. When workplace disputes defy the internal disputes resolution practices in place, they take the above-mentioned route.
The Commissioner of Labour, a mediator, arbitrator, or judge would then resolve the dispute by giving an award or order. Every award or order has its own guidelines, and for now we will focus on the conditions that contribute to or prevents an employee’s reinstatement order or award. Before we dive into this, let us explain what reinstatement means. The term is the appointment of a former employee to the position they previously held before they were terminated or otherwise.
The conditions
Section 24(1a) of the Trade Disputes Act states that the court may “in the case of wrongful dismissal, order reinstatement of the employee, with or without compensation, or order compensation in lieu of reinstatement”. Wrongful dismissals come about when it is determined that an employee had been dismissed without following the proper procedures (unprocedural) or without a valid reason (substantially unfair).
What Section 24(1a) states is that as the first condition, if a dismissal is determined to be wrongful, the employer may be ordered to reinstate the employee with or without compensation.
Section 24 (2a-b) of the Act continues to state that “The Court shall consider compulsory reinstatement as a remedy for wrongful dismissal only where the termination was found to be unlawful, or motivated on the grounds of gender, trade union membership, trade union activity, the lodging of a complaint or grievance, or religious, tribal or political affiliation; or where the employment relationship has not irrevocably broken down.”
This sub-section cites the second condition to reinstate that is considered enforceable. This condition is such that an employer would be legally required to reinstate a former employee if it is determined that the dismissal was both unprocedural and without good reason or was due to some form of discrimination and where the work relationship is still intact.
Other conditions that can be used by the Industrial Court are to determine whether the employee has acquired employment and whether the reinstatement would cause a disruption in the employer’s business (Rammika, 2019). This means that if an employee has sought employment and they are content with it, there may be no need to reinstate them. Secondly. if the employer had replaced the employee, then the reinstatement could cause harm to their business.
Conclusion
Reinstatement is a remedy that is meant to resolve a trade dispute. It is not placed as a remedy for every dispute as the above conditions must be met or present for restatement to be considered. Just like any other law, if an employer fails to comply with the order to reinstate, then, according to Section 24 (7) of the Trade Disputes Act, they would be “liable to a fine of P1 000, or the equivalent of the employee’s basic monthly wages, whichever is the greater, for every month or part thereof during which the failure to reinstate continues”.
In simple terms, not all former employees can be reinstated to their former positions, as enunciated above.
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