Daniel Fok Kan PhD,LLM,LLB
Last July, the Employment Relations Act and the Workers’ Rights Act (WRA) were amended in order to grant to the Employment Relations Tribunal the power to deal with claims for reinstatement referred to it by the Ministry of Labour. The first decisions of the Tribunal dealing with such disputes came out in September and October 2023.
Where a worker has been dismissed, instead of claiming severance allowance, he may opt to register a complaint with the ministry to claim reinstatement. The supervising officer of the ministry may then refer the claim to the Tribunal which has to determine whether the claim for reinstatement is justified or not. An obvious but difficult question that arises is what does an analysis of a justified reinstatement involve? Does the Tribunal have to examine the dismissal of the worker? If yes, does it do so within the parameters of the WRA?
These questions were explicitly raised in the case RN 98/23 where the Tribunal ruled that cases of reinstatement “can only be determined by considering all relevant evidence including the termination of employment”. In so doing, the Tribunal, in all the cases heard last year, applied the provisions of the WRA relating to termination of employment. If it is correct to say that the Tribunal has to examine all the facts, including issues relating to the dismissal of the worker, it is far from obvious that the Tribunal should do so with regards to the provisions of the WRA. The Industrial Court Act removes the exclusive jurisdiction of the Industrial Court with regards to S.69A of the WRA (the section dealing with reinstatement) but keeps that exclusive jurisdiction with regards to all the other provisions. At first sight, the Tribunal is therefore not concerned by these other provisions. However, the law also provides that where the Tribunal is unable to order reinstatement, it may in lieu order the payment of severance allowance. The question that arises here is whether this severance allowance is the very one that the Industrial Court can order an employer to pay or some other amount which is equivalent to the severance allowance. The use of the same term suggests that it is the former. If that is the case, it can be argued that when the Tribunal makes such an order, it has to do so within the same parameters as would apply to the Industrial Court, hence the application of the WRA by the Tribunal as well. One would have wished that the law had been more explicit on such an important issue. Incidentally, when referring such disputes to the Tribunal, the ministry of labour always asks it to determine “whether the termination of employment of Disputant is justified or not …”. This suggests that, for the ministry, reinstatement cases are merely cases of justified or unjustified dismissal and are therefore to be dealt with within the parameters of the WRA.
The wording adopted by the supervising officer of the ministry is, however, at odds with that of the law which requires the Tribunal to determine whether “the claim for reinstatement of a worker is justified” or not. It is also at odds with the presentation of these provisions made by the Minister of Labour at the National Assembly – “As the law stands, claims for reinstatement may be contested at the Employment Relations Tribunal on the ground that the definition of labour dispute and reinstatement is too restrictive and may be limited to cases of suspension only. I am, therefore, bringing the following amendments to address this issue and clarify the definition of labour dispute and that of reinstatement.” (Hansard, Debates no. 23 of 2023, p.120). The Tribunal had in the past set aside cases relating to the reinstatement of workers on the ground that it did not have the power to make such an order. This case law of the Tribunal was approved by the Supreme Court. It would appear that the intention of the legislature, as expressed by the Minister, was to reverse the decision of the Tribunal/Supreme court and to explicitly provide that the Tribunal has the power to do so. What is significant here is that the scheme adopted by the legislature strongly suggests that these cases are to be dealt with solely within the parameters of the labour dispute procedures, a reference by the ministry to the Tribunal for reinstatement being defined as a labour dispute. For the resolution of a labour dispute, the application of the WRA is irrelevant.
In the ERT case referred to above, the Tribunal did ask counsel for the employer to give an example of a reinstatement claim which can be dealt with without going into the issue of whether the dismissal was justified or not. Counsel was unfortunately unable to do so. It is submitted that the facts of the case RN 100/23 constitute such an example. In that case, the worker was employed as a General Purpose Worker. Originally he worked as Lasher, it would appear without any problem whatsoever. He then worked as shuttle bus driver before becoming an ambulance driver. It was then that problems started, the worker being on numerous occasions late at work. The evidence adduced relates mainly to these issues and the various warning he was given. Significantly during all that period, the employer was of the view that he was still under probation. And yet, there was no evidence that the employer provided any support to the worker to remedy the situation or even consider the possibility of asking him to work in another post, given that he was employed as a general purpose worker and he had in the past discharged other duties without any problem. If the worker was at fault, it is submitted that the employer was even more at fault. (See the Employment Relations Act, 4th Schedule, Code of Practice, especially the provisions relaying to Employment policies). Irrespective of the failure of the employer to follow the procedure provided by the WRA for the termination of employment, which led the Tribunal to conclude that the dismissal was unjustified and therefore that reinstatement was justified, it is submitted that the circumstances of this case were such that reinstatement was indeed justified.
One stop shop…
If the intention of the legislature was indeed that cases of reinstatement be assessed solely from the angle of employment relations without going into the issue of the justified character or not of the dismissal, the power granted to the Tribunal to award severance allowance considerably muddies the water. Interestingly in 2019, the ERA was amended to allow the Tribunal to order reinstatement in specific circumstances related to the protection of certain individual rights. These provisions were repealed in 2022. What is significant here is that the law then provided that if the Tribunal does not make an award for reinstatement, the worker then had to go before the Industrial Court should he wish to obtain severance allowance. It looks like that with the 2023 amendments, the legislature wanted to do away with a cumbersome two steps procedure by providing the worker with a one stop shop. This raises the question as to whether the Tribunal was the appropriate one stop shop.
In various other countries the law does provide for the remedy of reinstatement as an alternative to severance allowance. That jurisdiction is often given to the tribunal/court which decides on the issue of justified/unjustified dismissal. To give an example with which I am familiar, this is the case in Québec. Interestingly the Loi sur les normes du travail leaves it to the tribunal to decide in what circumstances it would order reinstatement instead of the payment of a severance allowance where the dismissal was effected “sans cause juste et suffisante”. According to case law, reinstatement would be ordered unless it is established that “la réintégration était impossible, inappropriée ou impraticable”. In practice, however, the power to order reinstatement is exercised rather sparingly by the tribunal which in most cases prefers to order the payment of an “indemnité pour perte d’emploi”.
The issue of reinstatement as a labour dispute dates back to the days, whether in England or in Mauritius, when the law did not provide for statutory remedies (payment of severance allowance) in case of dismissal of a worker. In those days it was referred to as “reengagement”. Industrial action was then the only way for a union to question a dismissal. Since the advent of the statutory remedies, introduced in Mauritius in 1963, unions became more and more unwilling to engage in industrial actions on such issues. Why risk the livelihood of the other workers when the dismissed worker can sue for severance allowance? In those days a strike was indeed considered as a breach of contract and would lead to the dismissal of the workers on strike. It is submitted that nowadays the issue of reinstatement is no longer relevant within the context of a labour dispute. If the legislature wants to grant an alternative remedy, namely reinstatement, to a worker who has been dismissed, it might as well grant that jurisdiction to the Industrial Court. This avoids the messiness of having two jurisdictions applying the same set of laws but through different procedures. It can be surmised that this was not done because of delays before the Industrial Court where it is not unknown for cases to take some time to be resolved, as opposed to the short delay imposed by the law on the Tribunal (60 days). If that is the case, then this issue has to be addressed as delays are not only relevant in reeinstatement cases but in all labour law cases where, for the worker, time is of the essence.