adminTHERE are many cases where arbitrators and disciplinary authorities have rules that an employee has been unfairly dismissed but reinstatement has been found not to be an option.
What makes reinstatement impossible? There are many reasons why reinstatement cannot be possible. Take the case of Jane, a domestic worker who is unfairly dismissed because the lady of the house believes she is getting too close to her husband.
There is no way in such a case that the worker can be reinstated as reinstatement could upset family life and trust would have collapsed between the wife and the workers.
When an arbitrator or the labour court makes a finding that an employee was unfairly dismissed he is obligated to order the reinstatement of the employee without loss of pay and benefits. However, not all cases allow for reinstatement as mentioned earlier.
There are times where the employee does not wish to be reinstated for various reasons. This is why it is important at the close of a hearing for the employee in his prayer to state the relief sought and where the employee does not want to be reinstated he should provide reasons for not wanting to be reinstated.
At times the circumstances surrounding the dismissal collapse the relationship between the parties, such as cases of constructive dismissal. In such cases where the employer alleges that trust between the parties has collapsed he has to prove on balance of probabilities that there are no reasonable prospects that the parties’ good working relationship can be restored.
The employer has to provide credible evidence why he can no longer work with the employee and that reinstatement is not an option.
Things like the behaviour of the employee prior and during the hearing could collapse the trust between the parties to a level where the only reasonable thing is not reinstate the employee.
This that can collapse trust during disciplinary process include rude insulting language against the employer, lying, booing at the employer, jeering, creating negative publicity against employer, demonising the employer, abuse of political connections against the employer and many others.
There are times where due to delay in conducting cases the circumstances of the business and those of the employee change to an extent that it is no longer practical to reinstate the employee.
A case in point is where due to modernisation the job of the employee is no longer there or where the employee has made career changing plans while waiting for the matter to be concluded.
When these things happen, the employer is obligated to pay the employee as directed by the award. In Zimbabwe, the law is not prescriptive on how the payment is done, however, the most common method of working payment of a reinstated employee is payment of back pay and benefits up to the date of the awards and thereafter the arbitrator awards damages in lieu of reinstatements.
Damages should not be confused with retrenchment packages, the principles for calculating the two are different.
In conclusion, employees who appear before the labour court and arbitrators must always state whether they want their jobs back in the event they are reinstated or they are opting for damages giving reasons for their position.
Davies Ndumiso Sibanda can be contacted on: email:[email protected] or cell No: 0772 375 235
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