“I am a HR Manager in the hospitality industry and have received a letter from the Workplace Relations Commission enclosing an unfair dismissal claim from a former employee. This employee was dismissed for theft and fraud offences following an extensive investigation and disciplinary process, so we are contesting the claim. However, in his complaint form, the complainant is seeking reinstatement and/or re-engagement. We cannot have a situation where he returns to our workplace. Can we insist that if any redress is to take place that it must be compensation? How do I handle it?”

Section 7 of the Unfair Dismissal Acts, 1977, as amended deals with redress for unfair dismissal. In this regard, the section provides that where a dismissal is deemed unfair, the employee is entitled to whichever redress option the Adjudication Officer or the Labour Court considers appropriate having regard to all the circumstances. Section 7 provides for redress as follows:

1. Reinstatement of the employee in the position held immediately prior to the dismissal;

2. Reengagement of the employee in the position held immediately prior to the dismissal or in a different position which would be on reasonably suitable terms and condition; or,

3. Payment of such compensation in respect of loss not exceeding 104 weeks remuneration where a financial loss is attributed to the dismissal.

Accordingly, the redress option is entirely at the discretion of the Adjudication Officer or the Labour Court as the case maybe. It is open to a claimant to select their preferred redress option in the complaint form. By and large, the Adjudication Officer will be guided by the employee’s preference. In this regard, the greatest redress option utilised by the Adjudication Officers is an award of compensation particularly having regard to unfair dismissal claims. The general principle underpinning this appears to be that the WRC is reluctant to award reinstatement or re-engagement in a situation where the employment relationship has clearly broken down and proceedings have been issued. In those circumstances, compensation is the most commonly awarded redress option available.

However, the power of the Adjudication Officer to select a remedy they consider appropriate was seen recently in decision ADJ-00002243. In this case, the claimant selected compensation in the redress section of the complaint form as his sole remedy in the event that his claim was successful. During the course of the hearing, the respondent accepted there was an honest misunderstanding on their management of the complainant’s termination and in the circumstances wished to offer him re-engagement into his position for the 2017 season. The complainant was not keen to accept this offer given his negative experience and he contended that the barrier to return was too great in order to allow him to do so. In all of the circumstances, he sought the remedy of compensation which at the date of hearing was €19,703.72. Notwithstanding the complainant’s stated preference, the Adjudication Officer decided that the appropriate remedy in accordance with Section 7 of the Act was not compensation and ordered the remedy of re-engagement.

In all of the circumstances, this case demonstrates that the although the Adjudication Officer will take the redress options and preferences of both complainant and respondent into account, is it ultimately down to the Adjudication Officer to determine the most appropriate redress available.