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Legal principles applying to applications for interim reinstatement, by Eugene Duhovnikoff BA/LLB

 An application for interim reinstatement involves the exercise of discretion by the Employment Relations Authority. There is no rigid application of some static formula to this regard: [1] There are four broad inquiries that the Employment Relations Authority ought make in the exercise of its discretion. These are:

  1. asking whether there is an arguable case of unjustified dismissal, and if found after substantive investigation to have been unjustifiably dismissed, an arguable case for permanent reinstatement under section 125 of the Employment Relations Act 2000;
  2. looking at the balance of convenience for a particular situation. This requires looking at the relevant detriment or injury to the applicant and the opposing will incur as a result of the interim injunction being granted or not;
  3. looking at the adequate alternative remedies ; and
  4. looking at where the overall justice of the case lies until the substantive matter.

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[1] Klissers Farmhouse Bakers Limited v. Harvest Bakeries Limited [1985] 2 NZLR 129 (CA).

Reeves/Duhovnikoff & Associates Ltd. 2017

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