When does back payment become due and payable in the instance of reinstatement?

In dealing with the contempt claim, the LAC held that reinstatement awards create a reciprocal duty between the employer and the employee. Reinstatement awards have the effect of reviving the employment contract and the duty of an employee to tender their services. The LAC highlighted the duty of an employee to tender their services and the reciprocal duty of the employer to remunerate them in return, as a fundamental tenet of the employer-employee relationship. What this demonstrates, held the LAC, is that the tendering of services becomes a pre-requisite for the enforcement of a reinstatement award. As a result, an employer’s obligation to pay backpay flows from the revival of the employment relationship and the tendering of service from the employee.

Where an employee is awarded reinstatement with backpay they are required to tender their services within the period set out in the reinstatement award.

Accordingly, where an employer has taken the necessary steps in ensuring an employee’s employment, the duty then shifts to the employee, who must ensure that they timeously make themselves available for the resumption of their duties. The LAC found that because the appellant did not tender his services, there was no contempt, and the appeal was accordingly dismissed.

As an aside, however, the LAC acknowledged the ‘blunt effect’ of the dismissal of the matter on the appellant who, despite being in possession of a reinstatement award, was now left without further recourse.

The LAC therefore ordered that its judgment be referred to the Minister of Employment and Labour for consideration as to whether any legislative amendments might remedy similar situations in future. A suggested remedy put forward by the LAC was the creation of a requirement that an employer must be obligated to initiate communication with the reinstated employee. In this communication, the employer would be expected to inform the reinstated employee as to when they are expected to tender their services, taking into account the reinstatement order. The LAC maintained that this would provide both employers and employees with certainty and proof that a request for the tendering of services was made while keeping the onus on the employee to tender services.