Reinstatement or compensation

By S.G. Kirkaldy, Contributor

THE QUESTION of the authority of the IDT under the Labour Relations and Industrial Disputes Act (LRIDA) to order reinstatement of workers deemed to have been unjustifiably dismissed is causing concern amongst employers, particularly since the Ministry has rejected the call of the JEF to give the IDT the power to order compensation instead of reinstatement in appropriate circumstances in the interest of harmonious relations at the workplace.

There are instances, for example, where witnesses failed to appear or where procedures have been breached and reinstatement ordered because of the breach and not the substance of the issue which resulted in the dismissal. The Salada Coffee/NWU dispute before the IDT comes readily to mind where the IDT found a worker to have been unjustifiably dismissed on the grounds that the company failed to follow the procedure and give the worker a hearing. The union representative at the hearings is alleged to have said he was basing his case on the failure of the company to follow procedures rather than on the honesty of the worker.

Under the LRIDA (Section 12(5) the following is the legal position:

(a) Section 12(5) (c) (i) requires the IDT if it finds the workers to have been unjustifiably dismissed to order reinstatement where the worker wishes to be reinstated. The employer has no option but to reinstate.

(b) Section 12(5) (c) (ii) gives the worker the right to opt for compensation instead of reinstatement.

(c) Section 12(5) (c) (iii) states that the IDT "May in any other case if it considers the circumstances appropriate, order that unless the worker is reinstated by the employer within such period as the Tribunal may specify the employer shall at the end of that period pay the worker such compensation or grant him such other relief as the Tribunal may determine".

The recommendation of the JEF (supported by the Government appointed Labour Market Reforms Committee headed by Professor George Eaton) was to give the IDT the authority to order compensation instead of reinstatement in appropriate circumstances in the interest of harmonious industrial relations at the workplace. The subsection at (a) above could still apply if the circumstances were not appropriate.

The unions rejected the recommendation and proposed instead, compensation where personal service was involved. There is no definition of personal service.

The Select Committee of Parliament as well as the Ministry supports the Unions' position. Having regard to this, it is highly unlikely that an employers' view that they be given the option, regardless of the circumstances, to go for reinstatement or compensation, would be acceptable.

The IDT on possibly two occasions made an order under Section 12(5)(c)(iii), one of which (JPS) was challenged by the company which refused to reinstate or pay compensation to a worker found to have been justifiably dismissed. The Court was of the view that Parliament could never have had in mind compensating a worker justifiably dismissed. Perhaps the Court interpreted the words "in any other case" to refer only to cases where the worker was found to have been unjustifiably terminated.

If one accepts the Court's view that Parliament could not have meant to compensate a worker found to have been justifiably dismissed, then it seems that an amendment of (c)(iii) is called for to properly reflect Parliament's thinking. Such an amendment could be to make it clear that the IDT would also, in appropriate circumstances, notwithstanding its authority at (c)(i), have the power where a worker is found to have been unjustifiably dismissed, to order compensation if his employer failed to observe a reinstatement order within a time specified by the IDT. This would be an alternative to JEF's position and the position of some employers as mentioned above.

The amendment could simply be the substitution of the words "May notwithstanding (c)(i) above" for the words "May in any other case" appearing in the subsection.

It would be a step forward in the right direction, particularly since it cannot be denied that the 1975 Parliament was in favour of compensation in appropriate circumstances even if there is ambiguity over the words "in any other case". It is there in black and white under (c)(iii). The amendment could be tabled during the debate of the Bill presently before Parliament.

A recent IDT ruling in the case of Tulloch Estates, reported in The Gleaner of Monday July 9, 2001, is very interesting. It refers to an incident at the company's premises involving a fight between a worker and a supervisor and alleged threats in which both were convicted by the Court. The worker was dismissed and the supervisor suspended. The worker was subsequently reinstated by the IDT with the payment of 95 per cent of his wages lost.

Now if the IDT felt that there were extenuating circumstances surrounding the action or conduct of the worker and justice was not done by not giving him a hearing, it seems that invoking subsection (c)(iii) would possibly be more appropriate in the interest of harmonious relations at the workplace.

S.G. Kirkaldy C.D. is a retired Industrial Relations consultant.

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