Interim Reinstatement: What is it and how does it work?
Your employee’s employment has come to an end by reason of dismissal. You’ve received a personal grievance for unjustified dismissal. What comes next?
The most commonly sought (and awarded) remedies for employees who raise personal grievances for unjustified dismissal are loss of earnings, compensation and legal costs. These are all financial remedies to resolve the personal grievance, and are usually granted in combination with one another. Each of these remedies have the same result – the employee’s employment remains at an end. However, there is one other primary remedy that is less commonly used, and that is reinstatement.
An employee can apply under s 125 of the Employment Relations Act 2000 to be reinstated to their position. Reinstatement may be granted if it is “reasonable and practicable” to do so. However, an employee can also apply for “interim reinstatement”, meaning that they would be reinstated to their role pending the outcome of their substantive hearing (the personal grievance and permanent reinstatement issues).
What is interim reinstatement?
Interim reinstatement is commonly seen where there are visa issues involved. If an employee’s work visa or residency rely on employment with a particular employee, interim reinstatement will usually be applied for with urgency. The Employment Relations Authority in Western Bay of Plenty District Council v McInnes recently confirmed the four-stage test for interim reinstatement:
Does the applicant have an arguable case for unjustified dismissal?
Does the applicant have an arguable case for reinstatement to be granted if the claim for unjustified dismissal is successful?
Where does the balance of convenience lie? This requires an assessment of the hardships to the parties (and any third parties) caused by the interim reinstatement.
What does the overall justice of the case require? For example, if there are visa issues, the overall justice will usually sway in favour of the applicant.
As you can see, the threshold for interim reinstatement (above) is significantly lower than that for permanent reinstatement (practical and reasonable), which takes into account commercial factors from the employer.
If you have any questions or queries in relation to this topic, please get in touch with the Watermark team directly. We are happy to advise you.