Reinstatement means the action of taking an employee back to work on the same terms and conditions of employment as if the termination of the employee never occurred. Reinstatement is preceded by termination, which, in most cases, is deemed to be unfair by the employee. In some occasions, reinstatement can occur as an agreement between the employer and the ex-employee.
In Tanzania Mainland, reinstatement is among the legal remedies recognizable and awardable to an employee who has been unfairly terminated from the employment contract. This is as per section 40(1) (a) of the Employment and Labour Relations Act, 2019, which reads as follows;
“Where an arbitrator or Labour Court finds a termination is unfair, the arbitrator or Court may order the employer – (a) to reinstate the employee from the date the employee was terminated without loss of remuneration during the period that the employee was absent from work due to the unfair termination.” (Emphasis added)
Further, section 40 (3) of the Employment and Labour Relations Act (Supra) addresses the legal implications of the situation where the order to reinstate an employee is given, and an employer is unwilling to reinstate such an employee. The quoted provision provides as follows:
“Where an order of reinstatement or re-engagement is made by an arbitrator or Court and the employer decides not to reinstate or re-engage the employee, the employer shall pay compensation of twelve months wages in addition to wages due and other benefits from the date of unfair termination to the date of final payment”
This article, via the recent Court of Appeal case of Anna Reuben Mtaita vs STANBIC Bank Tanzania Limited [2024] TZCA 687 (6 August 2024) (Unreported), examines the consequences of partial compliance or total failure to comply with the reinstatement order.
In the above case, the Appellant was summarily dismissed from her job by the Respondent in March 2006. She contested the dismissal, and the Conciliation Board ordered her reinstatement in November 2007. Despite this, the Respondent challenged the decision, but the Minister for Labour Matters upheld the Board's ruling in August 2008.
The Appellant then requested her reinstatement, but the Respondent responded with conditions, suggesting alternatives since her previous position was no longer available. Eventually, she was dismissed again in February 2009 for allegedly absconding from work. The Appellant's attempt to enforce the Minister's order was dismissed by the Deputy Registrar and later upheld by the High Court, prompting her appeal.
At the Court of Appeal, the core issue was whether the Respondent had properly reinstated the Appellant. On appeal, the court ruled that:
“Simply telling the Respondent she was reinstated, without assigning her to her previous position or providing equivalent work, did not meet the legal requirements for reinstatement”
The Court found that the appellant was not reinstated as required by law, concluding that merely informing her of her reinstatement without providing her with her original job position or duties did not meet the legal requirements of reinstatement.
Consequences of failure to comply with the Reinstatement Order
Non-compliance with reinstatement orders can have severe implications for employers, including but not limited to: -
- Reputational Damage: Prolonged legal disputes over non-compliance can damage an
employer's reputation, particularly in cases involving wrongful dismissal. - Financial Implications: Non-compliance can result in financial penalties, including
compensation for the employee's lost wages and benefits during the period of noncompliance.
This Court of Appeal Decision underscores the importance of adherence to reinstatement orders and the potential consequences of non-compliance. Employers must be diligent in fulfilling their legal obligations to avoid legal disputes and the associated repercussions.
ATE emphasises that Employers should carefully ensure compliance with the law, including court/authority orders, to be in compliance and to seek advice from ATE on steps to be taken to be in safe hands before the law.