Reinstatement Claim

Reinstatement claims are governed by Articles 20 and 21 of the Labour Law. An employee covered by job security may claim reinstatement by arguing that their contract was terminated without a valid reason or without stating a reason.

Deadlines

1. The employee must apply to a mediator within one month of service of the termination notice; see the Mandatory Mediation Guide.
2. If mediation fails, a claim may be filed with the labour court within two weeks of the final minutes. If the parties agree, the dispute may be referred to a private arbitrator.

These are forfeiture periods; missing them extinguishes the right to reinstatement.

Proof

The burden of proving that the termination was based on a valid reason lies with the employer. If the employee alleges a different reason, they must prove it. A written, reasoned termination notice and, for conduct or performance reasons, obtaining the employee’s defence are decisive.

Consequences of the Judgment

• After the judgment becomes final, the employee must apply to return to work within ten working days of service; otherwise the termination has the effects of a valid termination.
• The employer must reinstate the employee within one month of their application.
• If it does not, it must pay job security compensation of at least four and at most eight months’ wages.
• In either case, the employee is paid up to four months’ wages and entitlements for the period not worked until the judgment became final (idle time pay).

Severance and notice pay already paid are set off against these amounts upon reinstatement.

Settlement in Mediation

In practice, many reinstatement disputes end in mediation with an agreement on non-reinstatement compensation and idle time pay. The settlement agreement is enforceable like a judgment and the parties cannot sue on the matters agreed.