When an employee is unjustifiably dismissed, he or she may seek remedies from the employer which includes compensation or reinstatement.

Under the current law, if an employee seeks reinstatement, the Employment Relations Authority (“the ERA”) has the discretion to reinstate the employee to the employee’s former position or a position no less advantageous to the employee.

In one case, an employee was dismissed after the employer reached the conclusion that the employee did not follow the strict health and safety policies of the company, which put himself and other employees at risk of injury or death. According to the employer, the employee did not appreciate the significant risk of his behaviour.

Following an application to the ERA, the employee was reinstated to his prior position, despite the fact that it had been 3 years since the employee’s dismissal. The ERA ordered the employer to provide training for the employee in order to refresh and update his skills.

Under proposed changes to New Zealand’s employment law, reinstatement will become the primary remedy for a personal grievance (where the employee is no longer employed by the employer). The ERA will award reinstatement wherever it is practicable and reasonable to do so, regardless of whether it also provides other remedies such as compensation.

Jaenine Badenhorst

Employment Lawyer