Reinstatement in Industry The First of Two Articles Dealing with a Subject of Great Importance to Both Employers and Workers
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By "! Tantalus "
EMPLOYERS and executives who are closely concerned with the emploYment of ex-Service men are experiencing some uncertainty as to the provisions, rights and responsibilities, as laid down in the Reinstatement in Civil EmploymeneAct, 1944.
In framingthat Act the Government realized that demobilization is going to be an infinitely more difficult task than was mobilization. It was much easier to withdraw workers from industry to meet the demands of the Services than it will be to find appropriate jobs for the returning Men and women. Whilst the aim df the Act is to ease.•the..wheels. of, the reinstatement machinery, that in itself will not be enOugh. Neither will the mere carrying out of the •provisions of an Act or the compliance with a Statute be sufficient. Great reliance is placed upon the provisionof a generous measure of goodwill, justice and fair, dealing to ensure successful operation. It is also anticipated that employers and managements will not seek to evade the moral responsibility, nor should they forget what is 'owed to the men returning to civilian life when the turmoil of battle. is at an end. Everything, in fact, will depend upon the spirit in which the provisions of the Act are carried out.
Unless this aspect of the case be fully appreciated, disputes and disappointments must inevitably ensue. In. that event, a sense of injustice, together with bad feeling, will prevail. At the end of the peat war memories were short and interest in the welfare of the ex-Service men soon faded intie oblivion. This must not be permitted to occur' again; and it is hoped that all persons who are called upon to deal with questions of reinstatemern will bear this in mind.
In carrying out the provisions of the Act employers are faced with many difficulties, some of which are of a most . complex nature. Those persons who have made themselves familiar with the Act will recall that an obligation is placed upon the employer to reinstate a former employee in his old occupation .on terMs and conditions not less favourable • than those whieh would have been applicable had he not joined the .Forces„ According to the official view, this does not mean, necessarily, reinstatement in his old job.
Difficulties Through Changed Conditions
If, 'during the war, industry had remained static and had not undergone great changes and expansions, the position of employers would hayeTheen rendered much easier. Conditions, however, have changed very materially. and a strict implementation of the obligations as stated is. therefore, not poesible. The necessary provision to cover this eventuality is laid down by the Act, and is to the effect that, in such cases, the employer must offer the next best alternative, if any, that is reasonable and practical. i.e..; the most favourable occupation and on the most favourable terms and conditions,
Arising out of this. obligation is.. anumber of. points, as, • for example:—" What is the .position of an employer who is unable' td-reinstate an employee. at the time -he snakes
hiS '-There have already been recorded cases in wlikh an employer, having changed_frorn peace-time to war-time production, has been unable to carry out the
e22 requirements of the Act because he is not yet in a position to effect the necessary reorganization.
In such cases the question may be asked, " Does • tile employee forfeit his right and does the employer escape his obligation? " The answer is that the employee can keep alive his claim provided that he renews his application at intervals of not more than la weeks. So long as the employee fulfils this condition the employer remains under an obligation to -reinstate the employee' as soon as it is reasonable and practicable to do so In this connection there is a-time limit imposed. An employer's obligation to take back a former employee lapses entirely six. months after the end 'of the " present 'emergency."
A Frequent Question Answered A question which is 'frequently asked is :—" Does an employer have to reinstate a former employee if this can be
done only by dismissing another worker? The answer to this is that the employer does not have to dismiss another worker if (a) that worker was in the employer's employment before the other man joined the Forces; (b) that worker had been employed longer than the other man; (c) that worker's employment was as permanent as the other man's. _ In effect, this means that a 'senior and permanent employee does not -have to make robin for an ex-Service man who is' his junior. In other worda, the employer is not called upon to create a job which would not otherwise exist solely because aeformer employee has made a claim for reinstatement.
There i!; also a question of this nature concerning an employer who has, during the war, engaged a number of WorkpeOple for the same job, as, for example, where the original worker was called up and succeeding substitutes have, in their turn, also been celled up:—." Does the employer, in such cases, have to reinstate all of the former employees or only one of them; and, if one, who is it to be? The answer is contained in the seniority rule, and this is of considerable importance. The following case may he taken as an example:—An employee was called up and replaced by a substitute, who, in turn, was called up and another substituted; thus three men. filled the same job. Now, under the seniority rule, the date must he taken when the first worker was called up; then must be considered which employee had been employed for the longest period, before that date. The original worker is the legitimate . claimant, as the two substitutes were not engaged until after he had been called up.
In this type of case, where the permanency factor applies, the original employee is always senior to the substitutes.. This, then, leads to the question of the employer's obligation to reinstate the two substitutes, he having -reinstated the original worker. The ..official answer is that the employer is still under an obligation to reinstate them if it be reasonable 'awl practicable to do so. For obvious reasons, 'theycannot be reiestated. in, their old job; but. it may be possible to reinstate .them in their old occupation or in. the• most favourable alternative occupation. If this he pessible, then it mast be done, ,even Wit means' discharging a. more junior employee..