Reinstating a dismissed employee: what are your legal options?

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A recent Employment Relations Authority case that ended in a dismissed employee being reinstated serves as a warning to employers, according to a specialist employment lawyer.

Radius Matua Rest Home and Hospital was ordered to reinstate Seionala Hammond to her former role after finding she was unfairly dismissed in March last year. Hammond had been dismissed after being accused of neglecting her duties in caring for her elderly patients.

In the ruling authority member James Crichton ordered a reinstatement because the employer “made a poor decision to dismiss against the weight of evidence”. Along with reinstatement he ruled that Radius should pay Hammond $4,000 in compensation for “the wrong done” and $10,000 as contribution to lost wages.

The company, Radius Residential Care, is appealing the decision and Hammond has been instructed not to return to work but has been reinstated on the payroll according to the Bay of Plenty Times.

Blair Scotland, Principal at Dundas Street Employment Lawyers, told HRM that reinstatement orders can be difficult for employers but are legally binding decisions.

If the court orders it you just have to get on and do it and put them back into the role as the courts told you to do. Its contempt of court if you don’t and you ultimately face imprisonment for not following through with its orders,” Scotland said. “There’s very little you can do other than appeal the decision.”
 
He advised that employers would need to seek a stay of proceedings to stop the individual returning to work during the appeal process. The stay of proceedings would need to include good reasons, including for example, sworn affidavits from staff stating they will resign if the person returns.

“You need good evidence you can’t just make claims and hope that she’ll be right. You need real evidence. The court will consider that and make the call but generally the trade-off is the person goes back on the payroll - they just don’t have to come into work pending hearing of the case.”
 
Scotland said reinstating someone whose employment ended due to medical incapacity or a restructure should be fairly straight forward, the real difficulty comes when there has been a break down in workplace relationships or violence. In these situations he advises employers to hand current staff a copy of the ERA /Employment Court decision and explain the situation.

A worst case scenario is other staff could raise a personal grievance against the employer for failing to keep them safe following the reinstatement on the employee. Scotland advised that while such claims would be difficult to be upheld due to the same court initially ruling there were no safety issues when reinstating the person, it is legally possible.

If further issues arise with the reinstated employee such as inappropriate behaviour or poor performance Scotland said its best to get specialist lawyers involved.

“Winging it at that point of time is a very bad idea,” he said.
 
So what is the key lesson?

“If you’re going to dismiss someone you really need to make sure you know what you’re doing and you’re on strong grounds and you understand the potential consequences of doing so,” Scotland said.

“If you don’t know what you’re doing or you’re not absolutely sure of what you’re doing, get specialist advice. It’s better to get that at the time and get advice from someone who can say ‘this is the problem with your process, let’s fix it now while it’s still fixable’ because you can’t fix it six months down the track when you’re in front of the court.”

“If you don’t take advice you can be the author of your own misfortune.”
 

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