The This aspect of the Act in the

The lack of use thus far by
the tribunal to reinstate and or reengage has been brought under the microscope
by this section. An order for reinstatement places the employee back in the
same position it is as if he was never dismissed.1 If this is
problematic the tribunal can order re-engagement, where the complainant is
engaged in comparable employment or other suitable employment.2 This is counter to the
common law position where the employee serves at the will of the employer. The
objective could possibly be a balancing of the relationship previously
mentioned but if the circumstances of the dismissal has alienated the employee this
makes the prospects for the solution remote. The employer is not without a
solution since he cannot be compelled to comply with a reinstate or reengage order
however if he does not comply then an additional award of 52 weeks pay will be
In assessing the possibility employers will argue suggestions for re-employment
are not genuine and are an attempt to leverage a larger settlement from
employer who would rather fall on the sword than re-employ someone they clearly
spent time and effort removing from the company. While this may be true the Act
does make the payment available to the employee. The observation here is one
still of power because if the employer has no intention to retain the services
of the employee he can dismiss the question has to be the level of
compensation. In other words is the 52 weeks satisfactory notwithstanding the
attempts by the employee to resume employment. This aspect of the Act in the
opinion of the paper was the corner stone of leveling the relationship. It has
been observed that in the recent case of Cutie Small v NCC the discussion came
up but was dismissed by the tribunal as nugatory given the financial situation
of the NCC.

This paper would respectfully submit that the process in selection was
flawed and on that basis another look was necessary in the interest of
transparency and fairness. That said however it is unlikely that this option
will ever be employed given the get out of jail card that was so eloquently
inserted in the Act on behalf of employers.4

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