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While we argue about it, I'll have my job back please
There is something of a fundamental philosophy which underlies different employment jurisdictions around the world.
On the one hand, an employer can legitimately contend that, for simple commercial reasons, it should be allowed to make decisions concerning employment quickly and efficiently. One might say that is the prevailing philosophy underlying most employment law in the United States.
On the other hand, of course, an employee can say that he or she has a legitimate interest in protecting the security of his or her job. To lose one's job is a very serious thing for most people - and some would argue that the law should recognise that severity by offering some degree of protection to the employee.
Striking the balance between these two fundamental philosophies is a source of some tension in employment law. Perhaps the best illustration of this tension is offered in the case of interim reinstatement.
Under the Employment Relations Act, an employee may raise a personal grievance if he or she considers that he or she has been unjustifiably dismissed. The legislation recognises that, if successful, the employer's primary remedy should be reinstatement to his or her old job.
The difficulty is, however, that there is often a delay of several months between the raising of a personal grievance and its ultimate resolution by the Employment Relations Authority. In that interim period, what is the employee to do? He or she has been dismissed - and without more would be required simply to bide time until the Authority's determination (possibly returning him or her to work). This prospect is probably not an attractive one for most employees - nor is it necessarily helpful for employers who may be forced to reintroduce a former employee into the workplace after a hiatus period of several months.
To address this issue, and in recognition of the paramouncy given to reinstatement as a remedy, the Employment Relations Act allows the Authority to order interim reinstatement - being reinstatement into a job pending a full hearing by the Authority. The principles that apply to this area were helpfully outlined in the recent decision of Graham v Airways Corporation of New Zealand (Unreported, Employment Relations Authority, Auckland, 11 April 2003).
Ms Graham had been employed by Airways Corporation as an air traffic controller. She was, in effect, a trainee - and was employed in her role subject to passing a final performance assessment.
Graham's training had consisted mainly of on the job instruction given by a qualified instructor (being an experienced air traffic controller). It was anticipated that, following some training, Graham would be asked to sit the final performance assessment. If she passed this test, she would then be confirmed in her role.
The period of training was, however, longer than expected. During this period, Graham was said to have failed a check upon performance in a particular area, following which a formal process of "training intervention" was initiated. Airways' policy described this training intervention as a process to investigate and repair a breakdown in the training process.
At the completion of this remedial process, the employer reached the view that Graham would be unlikely to reach the required standard : she was not recommended to sit the final exam, and her training was therefore terminated.
The employer's policy made it clear that, if training was terminated, an employee would have to be dismissed from the role of Air Traffic Controller. It seems that, put simply, by failing to gain the recommendation to sit the final test (or by failing to pass that test) the employee was not suitable to be an air traffic controller.
Graham brought a personal grievance seeking, amongst other things, reinstatement. In essence, she took issue with certain of her employer's decisions about her, and sought another opportunity to complete her training. Given the circumstances of her case, she made an urgent application for interim reinstatement.
The Authority said that, in considering her application, it was required to consider the following things: whether there was an arguable case on the substantive issue (ie whether Airways was justified in dismissing Graham); what course of action would best regulate the positions of Graham and Airways until a final investigation could take place (often referred to as the balance of convenience); and finally, what, in the Authority's view, would accord with the justice of the case.
In reaching a view about arguable case the Authority was effectively required to reach preliminary conclusions on the substantive issues by considering affidavit evidence. In this case, the Authority considered that there was a serious question to be decided on the issues at the heart of the employment relationship problem.
The Authority did, however, conclude that damages would be an adequate remedy for Graham - rather than there being any necessary reason to reinstate her on an interim basis. Further, the Authority concluded that Airways would have real difficulty in reintroducing Graham back in the workplace - particularly if that reintroduction had to be part of a wider training process. Amongst other things, the Authority referred to the fact that the industry was highly regulated for safety reasons, and that Graham had herself expressed some distrust about those who would be required to train her.
Finally, the Authority reached its own views about several of the matters at the heart of the case. On this basis, although the Authority considered that Graham had strong arguments in certain areas, the overall justice favoured Airways - meaning that, for an interim period, Graham should not be reinstated to her job.
Of a number of different things, this case possibly best illustrates the difficult issues that confront the Employment Relations Authority in considering applications for interim reinstatement. The Authority is inevitably required to make preliminary findings on key issues in a case which is yet to be fully argued. In this case, the Authority concluded that the overall justice of the situation favoured the employer - leading to the conclusion that it would not be sensible for interim reinstatement to be ordered. That will not, however, always be the case in applications of this type.
