Who can bring a reinstatement claim
Three conditions must be met: the workplace must employ thirty or more employees, the employee must have at least six months’ service, and the contract must be of indefinite duration. In counting to thirty, employees at the employer’s other workplaces in the same line of business are included — so a branch that looks small on its own may still fall within job security.
Where the conditions are met, the employer must base the termination on a valid reason arising from the employee’s capability or conduct, or from the operational requirements of the business.
Formalities and the burden of proof
Notice of termination must be in writing and must state the reason clearly and precisely. Where the termination is based on the employee’s conduct or performance, the employee must as a rule be given an opportunity to respond first. A dismissal carried out without that step may be invalid on procedural grounds even where the underlying reason was sound.
It is for the employer to prove that the termination rested on a valid reason. In practice that means no undocumented reason is of any use. Verbal warnings, unmeasured performance expectations and incidents never recorded do not exist as far as the proceedings are concerned.
- Written notice stating a clear and precise reason
- A written statement taken from the employee before conduct or performance dismissals
- Warnings, incident records and performance data kept dated and signed
- Evidence that dismissal was the last resort
Mediation and the claim
A reinstatement claim cannot be filed directly. The employee must apply to a mediator within one month of being served with the termination notice. If no agreement is reached, the claim must be filed within two weeks of the final mediation record. Both periods are preclusive.
For an employer, mediation is not a formality. Where the file is weak on documentation, settling at that stage produces a more predictable outcome than the uncertainty of the claim and the cost of a longer process.
Consequences of an invalid dismissal
If the court finds the termination invalid, the employee may apply to return to work within ten working days of the decision becoming final. If the employer does not reinstate the employee within one month, it must pay compensation for non-reinstatement in the amount set by the court, between four and eight months’ wages.
In addition, the employee is paid up to four months’ accrued wages and other entitlements for the period spent out of work until the decision became final. Taken together, a single invalid dismissal can amount to close to twelve months’ wages. Severance and notice pay are separate again.
Frequently asked questions
How many employees must a workplace have for job security to apply?
Thirty or more. Employees at the employer’s other workplaces in the same line of business count towards the threshold.
What does an invalid dismissal cost an employer?
Where the dismissal is held invalid and the employee applies in time but is not reinstated, compensation of between four and eight months’ wages arises, together with up to four months’ wages for the intervening period. Severance and notice pay are additional.
Do verbal warnings count in proceedings?
Since the burden of proof lies with the employer, undocumented warnings carry no weight. Warnings need to be written, dated and served.
Can a claim be filed without going to mediation?
No. Mediation is a condition of bringing the claim. The employee must apply to a mediator within one month of the termination notice and, failing agreement, file within two weeks of the final record.