Reinstatement and re-engagement are coming to be more commonly regarded as practical remedies in cases taken under the Unfair Dismissals Act, the Employment Bar Association’s annual conference has heard.
Caroline Doyle BL told the conference at the Distillery Building in Dublin on Friday that while compensation remained the most common remedy in instances where an employee was found to have been unfairly dismissed, re-engagement or reinstatement had been ordered in a number of recent cases despite the Supreme Court saying they were only suitable remedies in exceptional cases.
In 2024 it overturned a High Court order that school principal Aodhagan Ó Suird should be re-engaged by Gaelscoil Moshíológ in Wexford saying that the Workplace Relations Commission (WRC), Labour Court and High Court should all have attached more weight to factors including the difficult relationship between the parties and the extended period of time which had elapsed since the dismissal.
Despite this, Ms Doyle said, “we are beginning to see the genuine emergence of reinstatement and re-engagement as workable alternatives”.
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She said the issues that must be taken into account in the wake of the Supreme Court judgment also included whether reinstatement would displace an innocent person but that the Workplace Relations Commission has recently started to apply the principles set out in the case “with more confidence.”
She cited the case of Okaci v Sodexo Ireland in which the WRC had ordered the reinstatement of Nkemka Patrick Okachi who was dismissed from his job as a cleaning supervisor in 2023 having been accused of sexual harassment.
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The adjudication officer (AO) in the case found that the employer had not followed fair procedures in dealing with the accusation which was denied.
In recommending reinstatement, Ms Doyle said, she had taken into account the fact that the accusation had been made not by an another employee of the complainant’s employer but of that company’s client firm.
The fact that there were alternative site to which Mr Okachi could be redeployed was also regarded as a relevant factor.
In Hussey v Tesco, meanwhile, the WRC had ordered the re-engagement of Cathal Hussey, an employee with 16 years’ service who had been dismissed for calling his supervisor “useless”.
The WRC found the sanction to be disproportionate and ordered re-engagement with the period between the unfair dismissal and the re-engagement to be considered as an unpaid suspension.
“The AO considered that reinstatement wasn’t an option due to his own role in the dismissal but despite his conduct, re-engagement was considered appropriate because Tesco’s size made redeployment easy,” she said.
She said the circumstances in many cases meant compensation continued to be seen as the most appropriate form of remedy available but “I would suggest there is a shift taking place with decision makers more open to restoring the employment relationship although only in cases where it is feasible and workable”.
Louise O’Donnell, chairman of the Labour Court, who was chairing the conference session, said there is a growing number of cases in which people were seeking reinstatement and suggested “it’s not just enough now just to say, ‘well, the trust has been broken,’ which was the default position before. I think people have to go a little bit deeper”.
She said there were also cases in which the parties “were tearing each other apart but then they’d say: “We can go back and work together ... it’s fine.”
She said the mitigation of loss was another interesting area that was developing as changing technology altered the nature of job searches and even the number of inquiries or applications that generated a response from an agency or employer.
She said it was becoming more difficult as a result to assess how much genuine effort had been made by a complainant to mitigate their losses, particularly where they opted not to be cross examined.
