Section 8B
Remedies relating to unreasonable denial of re-employment and dismissal without just cause or excuse
of Retirement and Re-employment Act 1993
(1)
An employee who has a re‑employment dispute with his or her employer which relates to any matter referred to in section 8A(4)(a) or (b), or an employee (being an employee who attains the specified age on or after 1 January 2012) who considers that he or she has been dismissed without just cause or excuse by his or her employer on or after the date the employee attains the specified age, may at any time after any conciliation conducted pursuant to section 8A(5), make representations in writing to the Minister to be re‑employed.
(2)
Any representations to the Minister under subsection (1) must be made no later than one month after the conclusion of any conciliation conducted pursuant to section 8A(5).
(3)
Where an employee who is dismissed by his or her employer makes any representations to the Minister in accordance with subsection (1) to be re‑employed, such representations made operate as a bar to —
the lodging of any claim under section 8C(1) in relation to the matter referred to in section 8A(4)(d), by that employee in respect of that dismissal; and
the making of any representations to the Minister in respect of that dismissal under section 35(3) of the Industrial Relations Act 1960.
(4)
Where an employee who is dismissed by his or her employer makes any representations to the Minister in respect of that dismissal under section 35(3) of the Industrial Relations Act 1960, such representations made operate as a bar to —
the lodging of any claim under section 8C(1) in relation to the matter referred to in section 8A(4)(d), by that employee in respect of that dismissal; and
the making of any representations to the Minister in respect of that dismissal under subsection (1).
(5)
The Minister may, before making a decision on any such representations made under subsection (1), direct the Commissioner to inquire and report whether in the Commissioner’s opinion the employee has been unreasonably denied of re‑employment by his or her employer, or has been dismissed without just cause or excuse by his or her employer, as the case may be.
(6)
If, after considering any report made by the Commissioner under subsection (5), the Minister is satisfied that the employee has been unreasonably denied of re‑employment by his or her employer, or dismissed by his or her employer without just cause or excuse (as the case may be) the Minister may, despite any rule of law or agreement to the contrary —
direct the employer to re-employ the employee; or
direct the employer to pay such amount of compensation as the Minister may consider just and equitable having regard to all the circumstances of the case,and the employer must comply with the direction of the Minister.
(7)
Despite any other provision in this section, the Minister may allow the employee to submit to the Commissioner, under section 3(1) of the Employment Claims Act 2016, a mediation request for the mediation under Part 2 of that Act of the re‑employment dispute and, if a claim referral certificate is issued in respect of that dispute, to lodge a claim for employment assistance payment under section 13 of that Act, where the Minister —
has considered any report made by the Commissioner under subsection (5); and
is satisfied, in the case of a re‑employment dispute over the matter referred to in section 8A(4)(b), that the employer has made reasonable attempts to find a vacancy in the employer’s establishment which is suitable for the employee.
(8)
Where subsection (7) applies, the employee must submit the mediation request to the Commissioner within such time as the Minister may determine.
(9)
Section 8C(3) applies in relation to any claim lodged by an employee pursuant to subsection (7).
(10)
In determining the amount of compensation to be awarded under subsection (6), the Minister may, in particular, have regard to —
the tripartite guidelines; and
the steps taken by the employer to re‑employ the employee.
(11)
The decision of the Minister on any representation made under this section is final.
(12)
Any direction of the Minister under subsection (6) operates as a bar to any action for damages by the employee in any court in respect of the unreasonable denial of re‑employment, or the dismissal of the employee without just cause or excuse, as the case may be.
(13)
An employer who fails to comply with the direction of the Minister under subsection (6) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 12 months or to both.
(14)
Where any amount of compensation to be paid by an employer under subsection (6) is not paid in accordance with the direction of the Minister and the employer has been convicted of an offence under subsection (13), the amount or part thereof that remains unpaid is recoverable by the court as if it were a fine and the amount so recovered is to be paid to the employee entitled to payment under the direction of the Minister.
(15)
The Minister may, by writing under the hand of the Minister, delegate all or any of the Minister’s powers under this section (except the power of delegation conferred by this section) to any public officer.
(16)
A delegation under subsection (15) is revocable at will and no delegation prevents the exercise of any power under this section by the Minister.
(17)
A power so delegated, when exercised by the delegate, is for the purposes of this section deemed to have been exercised by the Minister.