Section 32N — Order for reinstatement and re-engagement | Cap 57 Employment Ordinance

(1) Subject to this section and to section 32M , an order under this section may be an order for reinstatement (in accordance with subsections (4) and (5)) or an order for re-engagement (in accordance with subsections (6) and (7)) as the court or Labour Tribunal may decide and on terms which it considers just and appropriate in the circumstances.

(2) The court or Labour Tribunal shall first consider whether to make an order for reinstatement, and if it decides not to make an order for reinstatement it shall then consider whether to make an order for re-engagement.

(3) If the court or Labour Tribunal finds that an order for reinstatement or re-engagement is appropriate—

(a) it must explain to the employer and the employee what order for reinstatement or re-engagement may be made; and

(b) it must ask the employer and the employee whether they agree to the making of such an order.

(3A) If the employer and the employee express agreement, the court or Labour Tribunal must make an order for reinstatement or re-engagement pursuant to the agreement.

(3B) For a dismissal of an employee in any of the circumstances mentioned in section 32A(1)(c) , even though only the employee expresses agreement, the court or Labour Tribunal must make an order for reinstatement or re-engagement if it finds that reinstatement or re-engagement of the employee by the employer is reasonably practicable.

(3C) Before making a finding for the purposes of subsection (3B), the court or Labour Tribunal—

(a) must give an opportunity to the employer and the employee to present each of their cases in respect of the making of an order for reinstatement or re-engagement; and

(b) must take into account the circumstances of the claim, including—

(i) the circumstances of the employer and of the employee;

(ii) the circumstances surrounding the dismissal;

(iii) any difficulty that the employer might face in the reinstatement or re-engagement of the employee; and

(iv) the relationship between the employer and the employee, and between the employee and other persons with whom the employee has connection in relation to the employment.

(3D) Before making a finding for the purposes of subsection (3B), the court or Labour Tribunal may, with the agreement of the employer and the employee, request the Commissioner to provide to it a report containing information that—

(a) relates to the circumstances of the claim; and

(b) was obtained in connection with the conciliation held under the Labour Tribunal Ordinance ( Cap. 25 ).

(3E) On receiving the request, the Commissioner must prepare the report, seek the agreement of the employer and the employee to the contents of the report and—

(a) if the employer and the employee agree to the contents of the report—provide the report to the court or Labour Tribunal; or

(b) if the employer or the employee fails to agree to the contents of the report—inform the court or Labour Tribunal of the failure and the fact that the report cannot be provided to it.

(4) An order for reinstatement is an order that the employer shall treat the employee in all respects as if he had not been dismissed or as if there had been no such variation of the terms of the contract of employment. On making the order, the court or Labour Tribunal must specify the terms on which the employee must be reinstated, including—

(a) any rights and privileges, including seniority and pension rights, which must be restored to the employee;

(b) a term to the effect that, for reckoning the employee’s existing and future entitlements under this Ordinance and the employee’s contract of employment, the continuity of the employee’s period of employment is not to be treated as broken by—

(i) if the contract was terminated by the employer by payment in lieu of notice—the employee’s absence from work between the last date on which the employee rendered services to the employer and the date of reinstatement; or

(ii) in any other case—the employee’s absence from work between the relevant date and the date of reinstatement;

(c) the date by which the employee must be reinstated; and

(d) a term to the effect that, if the employee is not reinstated on the terms specified in the order by the date so specified, the employer must pay to the employee the sums mentioned in section 32NA(1) by the date specified for that purpose in the order.

(5) On the making of an order for reinstatement, if the court or Labour Tribunal considers just and appropriate in the circumstances, it may specify—

(a) any amount payable by the employer to the employee in respect of any arrears of pay and statutory entitlements under this Ordinance which the employee might reasonably be expected to have had but for the dismissal or the variation of the terms of the contract of employment, for the period between the relevant date and the date of reinstatement; or

(b) any amount to be restored by the employee to the employer in respect of any statutory entitlements that the employee has been paid by the employer under this Ordinance and that the employee should not have had upon reinstatement.

(6) An order for re-engagement is an order that the employer must re-engage the employee in an employment on terms comparable to his original terms of the employment or in other suitable employment. On making the order, the court or Labour Tribunal must specify the terms on which the employee must be re-engaged, including—

(a)

(b) the nature of the employment;

(c) the remuneration for the employment;

(d) any rights and privileges, including seniority and pension rights, which must be restored to the employee;

(e) a term to the effect that, for reckoning the employee’s existing and future entitlements under this Ordinance and the employee’s contract of employment, the continuity of the employee’s period of employment is not to be treated as broken by—

(i) if the contract was terminated by the employer by payment in lieu of notice—the employee’s absence from work between the last date on which the employee rendered services to the employer and the date of re-engagement; or

(ii) in any other case—the employee’s absence from work between the relevant date and the date of re-engagement;

(f) the date by which the employee must be re-engaged; and

(g) a term to the effect that, if the employee is not re-engaged on the terms specified in the order by the date so specified, the employer must pay to the employee the sums mentioned in section 32NA(1) by the date specified for that purpose in the order.

(7) On the making of an order for re-engagement, if the court or Labour Tribunal considers just and appropriate in the circumstances, it may specify—

(a) any amount payable by the employer to the employee in respect of any arrears of pay and statutory entitlements under this Ordinance which the employee might reasonably be expected to have had but for the dismissal or the variation of the terms of the contract of employment, for the period between the relevant date and the date of re-engagement; or

(b) any amount to be restored by the employee to the employer in respect of any statutory entitlements that the employee has been paid by the employer under this Ordinance and that the employee should not have had upon re-engagement.

(8)

(9) This section has effect subject to sections 32PA , 32PB and 32PC .

(10) If the employer pays the sums mentioned in section 32NA(1) by the date specified for that purpose in an order for reinstatement or re-engagement (as varied under section 32PA or 32PC , if applicable), the employee is not entitled to enforce the other terms of the order (as so varied, if applicable).