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Under Article 77A of the Employment (Jersey) Law 2003 where the
Employment Tribunal finds that an employee was unfairly dismissed,
it has the power to award compensation. However, less commonly
known is that it also has the power to order reinstatement or
re-engagement of the employee.
The key differences between reinstatement and re-engagement is
that the former requires the employer to treat the employee in all
respects as if the dismissal had not taken place, where the latter
requires the employer to engage the employee in employment
comparable to that from which the dismissal took place or other
suitable employment.
Both types of re-employment enable an employee to receive a
payment from the employer equal to any amount or benefit that the
applicant might reasonably be expected to have received but for the
dismissal (excluding arrears of pay), during the period between the
effective date of termination and the date of the subsequent
re-employment. Some commentators consider this approach to be
restrictive.
Aside from the inability to recover any salary, a further
possible reason why re-instatement and re-engagement do not feature
more prominently in Tribunal's decisions is a consequence of
the rigmarole associated with Tribunal proceedings. The
relationship of trust and confidence between the employer and
employee is inevitably put under significant pressure and it may be
mutually agreed that a parting of ways is the most appropriate
outcome.
However, in a recent case, Mr Philip Graham v Geomarine Limited,
Mr Graham was successful in claiming unfair dismissal against his
employer but wished to either be reinstated or re-engaged rather
than receive compensation. For the first time it was therefore
necessary for the Tribunal to consider what criteria it should
consider when faced with such a request by an unfairly dismissed
employee.
The Tribunal found that it would be impractical to reinstate Mr
Graham due to the long period of time that had elapsed since his
dismissal (over a year), although the Tribunal was prepared to
consider Mr Graham for re-engagement with Geomarine Limited or one
of its associated companies.
Article 77(D)(4) of the law provides for three factors that need
to be taken into account when asked to make such a direction:
Any wish expressed by the complainant as to the nature of the
direction to be made;
Whether it is practicable for the employer or a successor of
the employer or an associated employer to comply with a direction
for re-engagement;
Where the complainant caused or contributed to some extent to
the dismissal, whether it would be just to direct that person's
re-engagement and (if so) on what terms.
The Tribunal noted that Mr Graham clearly wished to be
re-engaged and had not caused or contributed to his dismissal,
leaving (b) to be decided upon. Unfortunately for Mr Graham the
Tribunal held after considering English case law, inter alia, the
following:
"It is clear that Geomarine Limited has lost trust and
confidence in Mr Graham as an employee..."
"The Tribunal have also noted that Mr Graham's job at
Geomarine Limited was not filled following his dismissal, and in
fact a further two foreman have since left that company."
"The Tribunal is mindful that whilst Mr Graham has been
unfairly dismissed, other people are still reliant upon these
companies for their livelihood and neither of them are hiring a
senior weekly paid work force at this time."
Accordingly, the Tribunal decided that it would not be
practicable for Geomarine Limited, or any of its associated
companies to comply with an order for the re-employment of Mr
Graham at this time.
This case may serve to demonstrate the difficulties an employee
will face when seeking a direction for re-employment.
Understandably, the Tribunal will not direct re-employment when it
is not appropriate to do so and a number of criteria must therefore
be satisfied.
The first criteria, in particular, has been known to trip up
Applicants. In a case where this firm acted for a Respondent
company, the Applicant sought re-employment, but the Tribunal
decided that this was not appropriate on the basis that
relationship between the Applicant and the Respondent "must be
severely damaged, if not destroyed."
An aggrieved employee may consider appealing the decision of the
Tribunal not to direct re-employment, however, it is recommended
that specific legal advice be sought in relation to this. A stern
English warning has been given (which the Jersey Tribunal may find
persuasive) that where the Tribunal directs itself correctly on the
law and hears and accepts evidence as to impracticability [of
re-employment] and then sets out its reasoning clearly and fully,
as it does here, the plea becomes virtually impossible.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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With the long-running saga between Unite and CT Plus set to continue for the time-being, there are more and more calls upon both Guernsey and Jersey States' Ministers to give the matter serious thought going forwards.
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