One can be reinstated if unfairly dismissed

Claris Ogangah

QUESTION: Is it possible for someone who was unfairly dismissed to be reinstated? If not, what are the remedies available to such an employee?

We shall first discuss the grounds under which the Employment Act will deem termination of employment to be unfair before we go to the remedies available to an employee.

Section 45 of the Act provides that termination of employment will be unfair if the employer fails to prove that: a) the reason for termination is valid; b) that the reason for termination is fair and is related to the employee’s conduct, capacity or compatibility and; c) the employee was terminated in accordance with fair procedure.

This means the reason for termination must be related to the conduct of the employee and a proper procedure must be used when terminating a contract. This means the procedure applied must be just and equitable.

The Act further provides grounds upon which if an employee is dismissed it will be considered unfair. These include dismissal on account of pregnancy, proceeding on leave, membership to a trade union, participating and holding offices in a trade union, sex, tribe, religion, political opinion, nationality, social origin, HIV status, marital status and disability.

A complaint for unfair dismissal will be entertained by either a labour officer or the Industrial Court and must be presented within three months from the date of termination of employment.

Employee’s wishes

Section 49 then provides that the labour officer can proceed to make recommendations to the employer if the findings are that the termination was unfair.

Therefore, yes, reinstatement is possible under the new Act when termination is found to be unfair. However, it is important to note that reinstatement is not automatic and certain issues must be taken into account first. These include the wishes of the employee, the circumstances under which the termination took place and what contributions the employee caused in the termination.

The most important is the practicability of the reinstatement or re-engagement and the common law principle that there should be no order for specific performance in a contract of service except in very exceptional circumstances.

Think about an employment relationship as you would any other and you will note that in as much as reinstatement of employment is possible under the law, once trust is lost between two parties, it becomes difficult to work together.