EMPLOYMENT LAW- RIGHTS OF A DISMISSED EMPLOYEE

EMPLOYMENT LAW

The rights of an employee for unjust dismissal are found in Section 20 Industrial Relations Act 1967 (hereinafter referred to as IRA 1967). Sect 20 of the IRA 1967 states

“Where a workman considers himself to be dismissed he may make representations to the Director Relations for reinstatement ……He must make representations within 60 days.”

There are 3 remedies for the employee who has been unjustly dismissed. The first 2 grounds are entirely within the law but the third remedy is at the discretion of the Employer. The three main remedies are

1) Reinstatement

2) Compensation in lieu of reinstatement

3) Re- engagement

Reinstatement

Where an employee has been unjustly dismissed, he may file a complaint with the Industrial Tribunal. If after enquiry the Tribunal finds as a fact that the employee has been unjustly dismissed, the Tribunal may order the employer to reinstate the employee. When the employee is reinstated, he is entitled to receive backwages starting from the date of dismissal to the last day of hearing. However the Court will not order reinstatement if the relationship between the employer and the employee has irretrievably broken down.

There are 2 ways in which reinstatement may be ordered.

The dismissed EE files a complaint with the Industrial Tribunal within 60 days. The both the ER and the EE will be summoned to appear before the Tribunal which will then proceed to hear both sides of the story. The Tribunals role is entirely reconciliatory. If the Tribunal succeeds, then the employee is reinstated and the matter is resolved.

If the matter is not resolved at the Tribunal, it will be referred to the Industrial Court where the case will be heard. If the case finds as a matter of fact, the EE will be reinstated.

Compensation in lieu of reinstatement

A second situation is where the dismissal of the employee was found to be without just cause or excuse but the relationship between the ER and the EE has so broken down that it would not be practical for the Court to order the ER to take back the EE. This is because it would not be reasonable to force an ER to take back his Ex-EE.

In cases like the above the Court will order compensation in lieu of reinstatement. So instead of the EE getting his former job back, he will only be entitled to compensation in lieu of reinstatement subject to a maximum period of 24 months.(in some cases the Court has granted an exceeding 24 months.)

Re-Engagement

This is in situations where the original Contract of Employment has been terminated and the new business owners offer a new contract to the EE. Examples where this may arise is where the business is taken over by a new management who do not want the previous EE’ under the old agreement. If there is no re-engagement, the previous ER is bound by law to pay compensation. (This is governed by the Termination and Lay-Off Benefits).

In cases where the employee has been found to be giving dishonest information in getting the job, the Management may decide to dismiss him. Alternatively, the ER may decide to re-engage him on a new contract. He may not be given the same position and he will not be entitled to any arrears of salary. He will lose his past service. Upon re-engagement his service starts afresh on a new contract.

(The area of Constructive Dismissal will be discussed in another topic.)