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Give me my job back!
A recent decision highlights the importance of the right to reinstatement.
Employment law has almost always recognised the importance of reinstatement as a remedy to those who successfully challenge a dismissal from employment. Put simply, if you have been wrongly terminated from your job, the easiest way to make things right is to give your job back to you.
This philosophy was expressly embodied in the Employment Relations Act. Section 125 of the Act provides that reinstatement is to be the primary remedy available to successful claimants.
The importance of this remedy is illustrated by the decision of the Employment Relations Authority in King v NZ Post Limited (Unreported, Employment Relations Authority, Christchurch, 4 May 2001).
The case involved an employee who had worked as a mail sorter for NZ Post (and its predecessors) for 33 years. On 29 December 2000 Mr King brought with him to work a small parcel that he was going to post on behalf of his wife. The parcel had a 40 cent postage stamp on it (which had been affixed by Mrs King): the correct postage for the package was, however, $2.95. Mr King's supervisor noticed the short paid parcel and alerted her manager. A disciplinary inquiry followed, in which Mr King's employer put it to him that he had attempted to post a parcel knowing that it had deficient postage. The inquiry was conducted by an investigator, who sought evidence from a number of third party witnesses. Following a number of interviews, the investigator drafted a memo which, amongst other things, contained a summary of various evidence obtained, Mr King's apparent inconsistent answers to certain questions and an overview of suspicions about earlier wrongdoing. A copy of this memorandum was never given to Mr King. It was, however, relied upon to effect his dismissal on 17 January 2001.
Mr King brought proceedings soon after this, alleging unjustified dismissal. We can assume that, consistent with the principles outlined in the Employment Relations Act, the matter was referred unsuccessfully to mediation. Ultimately, it came on for hearing before the Authority on 29 and 30 March 2001.
The Authority's decision was issued on 4 May 2001. The Authority found that the employer's investigation process was flawed, primarily because significant background documents (including the investigator's memo) had not been disclosed to Mr King. The Authority found that the circumstances of the case illustrated a breach of procedural fairness. It observed that Mr King's lengthy employment history was otherwise unblemished and concluded that the employer was "a large organisation with the resources and management skills to facilitate reinstatement". Accordingly, the Authority ordered that Mr King be reinstated in employment.
The prospect of reinstatement as a remedy is not a novel concept. Traditionally, however, employers seeking to avoid reinstatement have relied upon arguments that circumstances make it impractical. In truth, it has traditionally been the passage of time which has created circumstances of impracticality for employers: it was not uncommon for grievances to take between one and two years to come on for hearing, during which time employers would inevitably fill the gaps left by dismissed employees by employing new staff. Further, the passage of time often meant that any goodwill that existed between the parties was broken down by the rigours of the adversarial process.
Arguably, much of this has changed in the new environment of the Employment Relations Act. Mr King's case illustrates that it is possible for a grievance to be raised, mediated and heard before the Authority within a timeframe of no more than two months (indeed, the most lengthy waiting time in this case was that between the hearing and the issue of the decision). Because of the swift timeframe employers are now arguably encouraged to leave jobs open (despite dismissal) to provide the opportunity for an order of reinstatement if a claim is made out. With its focus on relationship building, the mediation process inherently requires parties to consider reinstatement early on in the lifetime of the employment problem. All of these factors incline to reinstatement being a remedy which may be more readily actionable.
As this recent case illustrates, reinstatement should now be regarded as a more feasible remedy in the resolution of employment problems.
