When a worker cannot be reinstated because the contract period has expired or retirement age has arrived, must the Labour Commission still decide the case, and what may it order instead?
General information · Not legal advice
Material to check
In a practice file we read the application for relief and the hearing record, which show what finding the Labour Commission made; the employment contract or rules of employment, which show the contract period or retirement age said to make reinstatement impossible; and the written notice of the ruling sent to employer and worker, which shows what was ordered.
These are types of material to look for, not evidence already verified by PRO SE.
Where readings differ
One reading treats this as a duty that attaches regardless of impossibility: where reinstatement is impossible, the Labour Commission must still issue either a relief order, if it finds the unjust dismissal or equivalent established after the hearing, or a decision dismissing the application; and where it finds the dismissal established, it may order the employer to pay the wage-equivalent amount the worker would have received had labour been provided during the dismissal period, or, in non-dismissal cases, a payment corresponding to restoration.
Another reading notes what the provision leaves open: the provision lists the expiry of the contract period and the arrival of retirement age as examples and closes the list with wording meaning 'and so on', which does not settle which further situations make reinstatement impossible; and the power to order the wage-equivalent payment is written as 'may', so the file must show which facts the Commission relied on and how it exercised that discretion.
Your judgment
What in the file could show that reinstatement was genuinely impossible rather than merely inconvenient for the employer?
PRO SE does not make this decision or keep a case record on this public site.When to reconsider
We look at this again if the provision is amended to change the payment where reinstatement is impossible, or if a court or Labour Relations Commission decision explains when reinstatement counts as impossible or how the payment is to be calculated.