Re-Engagement: A Real Risk for Employers

In our previous article on reinstatement and re-engagement¹, we considered the Supreme Court’s confirmation that these are exceptional remedies which should only be awarded where appropriate and practicable.

A recent Workplace Relations Commission (‘WRC‘) decision provides a significant illustration of how the test deciding if either remedy is appropriate may operate in practice. In Stephen Loughran v Almac Pharma Services Ireland Limited (ADJ-00059324)², the employee was summarily dismissed after a physical altercation with a third-party delivery driver at the employer’s facility. He accepted that he had used grossly offensive language before the driver struck him, after which he grappled with and punched the driver.

The Adjudication Officer (‘AO‘) found that the employee had been unfairly dismissed and ordered his re-engagement as a Production Operator, or in an equivalent role, with effect from six weeks after the decision. The period between dismissal and re-engagement was to be treated as unpaid suspension.

The decision is noteworthy because re-engagement was ordered despite the seriousness of the incident leading to the dismissal, the employee’s own misconduct, and senior management’s strong objection to his return.

Why the AO Determined the Dismissal to Be Unfair

On substantive fairness, the AO placed considerable weight on the speed at which the incident unfolded and took the view that the employer had placed too much emphasis on the employee’s opportunity to disengage after being struck.

It is not difficult to see why the conduct was treated as extremely serious: the incident involved grossly offensive language, a physical confrontation on site, and conduct which the employer considered incompatible with its behavioural standards.

However, the AO concluded that the employee’s use of offensive language, while serious, did not reasonably support a finding of gross misconduct warranting summary dismissal in the particular circumstances. The AO considered factors such as the absence of a prior disciplinary record, the fact that the comment was directed at a third party rather than a colleague, the lack of similar previous conduct and the absence of evidence of actual operational or reputational harm.

Procedurally, the WRC identified five matters which it considered cumulatively rendered the process unfair:

1. The concentration of investigative, evidence-gathering and disciplinary functions by one senior manager;
2. The expansion of the allegations after the investigation had concluded;
3. The failure to resolve material inconsistencies in the evidence;
4. The effective re-investigation of the matter at the disciplinary hearing by the ultimate decision-maker; and
5. Defects in the appeal, including reliance on a finding which the disciplinary panel had not made.

Why Was Re-Engagement Awarded Instead of Reinstatement?

The potential remedies available to the WRC were reinstatement, re-engagement or compensation. Here, the complainant indicated a preference for compensation on his complaint form but also confirmed in evidence that he wished to return to his employment.

Reinstatement would have restored the employee retrospectively to his former position, with continuity of service and full back pay from the date of dismissal. The AO considered that this would not adequately reflect the seriousness of the grossly offensive language used by the employee, which was characterised as serious misconduct in its own right, and on that basis, reinstatement was not awarded.

Applying the Supreme Court’s decision in An Bord Banistíochta, Gaelscoil Moshíológ v The Labour Court & Ors [2024] IESC 38³, the AO recognised that re-engagement is an exceptional remedy requiring a clear and balanced explanation as to why it is justified in the particular circumstances. The critical point was that practicability was assessed by reference to the employee’s actual working relationships and role, not senior management’s opposition in isolation.

The senior manager who had dismissed the employee strongly objected to his return and stated that he could not trust him. However, the employee was a non-managerial Production Operator, several reporting levels removed from that manager. Any day-to-day interaction between them would have been minimal and there was no evidence of a breakdown in the employee’s relationships with colleagues on the factory floor.

The AO also considered that a loss of trust based on findings which had themselves been determined to be unreasonable could not, without more, make re-engagement impracticable. This was considered to distinguish the case from An Bord Banistíochta, where the employee was a school principal required to report directly to the Board of Management which had lost confidence in him.

The AO found several factors which also supported re-engagement:

• The altercation involved a third party who had no continuing presence in the workplace;
• No client or customer witnessed the incident;
• There was no evidence that the employee’s return would create an ongoing operational or safety risk;
• The employee remained willing to return, after approximately 15 months out of work.

This approach taken by the WRC could be viewed as generous, particularly where the misconduct involved both abusive language and a physical exchange at the workplace. However, the decision illustrates the level of evidence the WRC may require where an employer seeks to resist re-engagement on the basis of lost trust or impracticability.

The employee’s personal circumstances were also taken into account and the AO considered that compensation would not address the employee’s central difficulty, namely the absence of paid work.

Taking those matters together, the WRC found that there was no objective impediment to the employee’s return and no evidence of an irretrievable breakdown in the relevant workplace relationships. Re-engagement was therefore ordered.

Practical Lessons for Employers

Whether or not employers agree with the outcome, the decision reinforces a key point outlined in our previous article: although re-engagement remains exceptional, it is an option.

First, employers opposing re-engagement should be ready to identify practical, evidence-based barriers to return. Relevant questions include the employee’s reporting line, whether key relationships have broken down, whether the former role still exists, whether an equivalent role is available, and whether any concrete safety, operational or third-party concerns would arise. One party’s statement that the relationship has broken down may not be sufficient.

Second, misconduct remains relevant at remedy stage. Here, it was serious enough to rule out reinstatement and full back pay, but not enough to make a future working relationship objectively unworkable. Employers should be aware of the possibility that the WRC may distinguish between conduct warranting sanction and conduct which makes ongoing employment genuinely impracticable.  

Third, organisational structure may matter. Re-engagement may be more achievable in a larger organisation where an employee can return to an equivalent role, report through a different management line or avoid sustained interaction with the relevant decision-maker. Conversely, an employer will be in a stronger position where it can show that trust has genuinely broken down in the relationships that matter operationally.

Key Takeaway

This case is a reminder that, even in circumstances of serious misconduct, the WRC may still consider re-engagement where it regards the employee’s return as objectively workable.

For employers defending unfair dismissal claims, careful preparation on remedy is therefore essential. Where re-engagement is an issue, opposition should be grounded in practical evidence, not solely in an assertion of lost trust or the contentious nature of the proceedings.