The lack of use thus far bythe tribunal to reinstate and or reengage has been brought under the microscopeby this section. An order for reinstatement places the employee back in thesame position it is as if he was never dismissed.1 If this isproblematic the tribunal can order re-engagement, where the complainant isengaged in comparable employment or other suitable employment.2 This is counter to thecommon law position where the employee serves at the will of the employer.
Theobjective could possibly be a balancing of the relationship previouslymentioned but if the circumstances of the dismissal has alienated the employee thismakes the prospects for the solution remote. The employer is not without asolution since he cannot be compelled to comply with a reinstate or reengage orderhowever if he does not comply then an additional award of 52 weeks pay will beapplicable.3In assessing the possibility employers will argue suggestions for re-employmentare not genuine and are an attempt to leverage a larger settlement fromemployer who would rather fall on the sword than re-employ someone they clearlyspent time and effort removing from the company. While this may be true the Actdoes make the payment available to the employee. The observation here is onestill of power because if the employer has no intention to retain the servicesof the employee he can dismiss the question has to be the level ofcompensation. In other words is the 52 weeks satisfactory notwithstanding theattempts by the employee to resume employment. This aspect of the Act in theopinion of the paper was the corner stone of leveling the relationship.
It hasbeen observed that in the recent case of Cutie Small v NCC the discussion cameup but was dismissed by the tribunal as nugatory given the financial situationof the NCC.This paper would respectfully submit that the process in selection wasflawed and on that basis another look was necessary in the interest oftransparency and fairness. That said however it is unlikely that this optionwill ever be employed given the get out of jail card that was so eloquentlyinserted in the Act on behalf of employers.4 1 2 3 4