Many of us aware of the potential risks in terms of an unfair dismissal or constructive dismissal claim. If an employee is found to be unfairly dismissed, the maximum monetary compensation can be up to two years’ remuneration. However, a Tribunal may also consider redress in the forms of Re-instatement of Re-Engagement. What is Re-instatement? Re-instatement would be in an outcome whereby the employee would be treated as if they had never been dismissed. The employee would be returned to the same position they occupied at the time of the dismissal and not only would the employee be entitled to be paid any loss of earnings from the date of the dismissal to the date of the hearing, but they would also be entitled to any favourable changes in the terms of employment during that period. What is Re-engagement? Re-engagement would arise in a scenario whereby the employee would either be returned to the same position they occupied at the time of the dismissal or to a different position and that the employee would return on reasonable terms and conditions in the cirucmstances. The employee may also be entitled to be paid arrears of wages owed but generally speaking this only applies in re-instatement scenarios. Indeed, if an employee is re-engaged it normally does not take effect from the date of dismissal and quite often takes effect at the date the decision is issued. mat be given their job back but only from a particular date, for example, the date of the decision from Tribunal. This means that the employee will not be entitled to compensation for any loss of earnings. Often this remedy is used where it is felt that the employee contributed to the dismissal, even though the actual dismissal was unfair. Stapleton -v- St Colman's (Claremorris) Credit Union (UD 1776/2012) In a recent ruling at the EAT, , the Tribunal found that the employee was blameless with regards her dismissal and as such reinstated her back to her original role along with awarding her compensation amounting to €25,000. In this case, Ms. Stapleton (the claimant) had been employed by the Credit Union since 2005. In June 2011 a copy of the Company Bullying and Harassment policy was left on her desk with no explanation. In July 2011, the claimant was stopped outside of work and informed by a member of the public who stated that Ms. Stapleton was responsible for the sickness absence of one of her colleagues as she was bullying her. Although the issue was raised was raised with her managers, no allegation was ever put to the Claimant. Both the Claimant and her colleague both attended work and had periods of intermittent sick leave due to work related stress from this time until February 2012. In late February the Claimant was contacted by the Credit Union in an effort to resolve the spiraling situation. She was advised that there were no allegations against her, however the Claimant sought expenses covering her absence and the colleague to be reprimanded. In September of this year, the Claimant attended a meeting with the view to coming to a resolution. At this meeting she was asked to sign a meeting withdrawing her demands. When she refused she was advised to leave her place of employment – the EAT deemed this to amount to a dismissal. EAT Decision The EAT found the dismissal to be unfair with a majority deeming re-instatement to be the appropriate remedy. The EAT held as follows: “The majority view of the Tribunal is that re-instatement is the appropriate remedy due to the following:
- The claimant did not contribute in any way to her dismissal.
- No procedures were adopted.
- The dismissal was wholly and substantially unfair.
- The claimants preferred option is for re-instatement.”
There was a dissenting minority opinion in the Tribunal who deemed that “it would not be appropriate in this case to order re-instatement” and instead suggested compensation of €24,500. However, the majority rule applied and the employee was re-instated to include payment of arrears of wages owed from the date of dismissal. Reinstatement is certainly an undesirable and costly remedy for any employer. If you are faced with any internal HR matter then please ensure to contact our 24 Hour Advice Service on 01 855 5050.
