Compilation of decisions of the Committee on Freedom of Association

Protection against discrimination13

Reinstatement of trade unionists in their jobs

1. No one should be subjected to anti-union discrimination because of legitimate trade union activities and the remedy of reinstatement should be available to those who are victims of anti-union discrimination.

1. Respect for the principles of freedom of association requires that workers should not be dismissed for engaging in legitimate trade union activities.

1. The Government must ensure an adequate and efficient system of protection against acts of anti-union discrimination, which should include sufficiently dissuasive sanctions and prompt means of redress, emphasizing reinstatement as an effective means of redress.

1. In the case of a country in which there was no legislation providing for the reinstatement of workers who had been dismissed without justification, the Committee requested the government to take measures to amend the legislation so that workers dismissed for the exercise of their trade union rights can be reinstated in their posts.

1. In cases of the dismissal of trade unionists on the grounds of their trade union membership or activities, the Committee has requested the government to take the necessary measures to enable trade union leaders and members who had been dismissed due to their legitimate trade union activities to secure reinstatement in their jobs and to ensure the application against the enterprises concerned of the corresponding legal sanctions.

1. In many cases, the Committee has requested the government to ensure that the persons in question are reinstated in their jobs without loss of pay or compensation.

1. If it appears that the dismissals occurred as a result of involvement by the workers concerned in the activities of a union, the Government must ensure that those workers are reinstated in their jobs without loss of pay.

1. If, given the considerable time that has elapsed since the dismissals, in violation of the principles of freedom of association, it is not practicable to reinstate the workers concerned, the Committee has requested the government to take steps to ensure that the workers receive full compensation without delay.

1. In certain cases of dismissals in which judicial proceedings were ongoing, if the decision concludes that there have been acts of anti-union discrimination, the Committee has requested the reinstatement of the workers concerned as a priority solution.

1. If the judicial authority determines that reinstatement of workers dismissed in violation of freedom of association is not possible, measures should be taken so that they are fully compensated.

1. The compensation should be adequate, taking into account both the damage incurred and the need to prevent the repetition of such situations in the future.

1. If reinstatement is not possible, the government should ensure that the workers concerned are paid adequate compensation which would represent a sufficient dissuasive sanction for anti-trade union dismissals.

1. If the judicial authority or an independent competent body determines that reinstatement of trade union members is not possible for objective and compelling reasons, adequate compensation should be awarded to remedy all damages suffered and prevent any repetition of such acts in the future, so as to constitute a sufficiently dissuasive sanction against acts of anti-union discrimination.

1. In many cases, the Committee has requested the government to take the necessary measures to ensure that, if reinstatement is not possible for objective and compelling reasons, the workers concerned receive adequate compensation so as to constitute a sufficiently dissuasive sanction against acts of anti-union discrimination.

1. In one case, the Committee requested the Government, if it was found by an independent judicial body that reinstatement in one form or another was not possible, to ensure that the workers concerned were paid adequate compensation beyond that provided in the law for simple unmotivated dismissal, but rather such compensation as to represent a sufficient dissuasive sanction for anti-union dismissal.

1. In certain cases, the Committee has requested the government to carry out independent investigations of dismissals and, if it finds that they constitute anti-trade union acts, to take measures to ensure the reinstatement of the workers concerned.

1. In one case, the Committee, taking into account the slowness of the judicial proceedings, requested a Government to ensure that the labour inspectorate carried out an investigation without delay, and, if the dismissals were shown to have been carried out for anti-union reasons, to take steps to ensure that the workers concerned were immediately reinstated in their places of work.

1. If the post occupied by the worker has been eliminated, she or he should be reinstated in a comparable post if the dismissal constituted an act of anti-union discrimination.

1. Where the enterprise no longer exists, measures should be taken to ensure that workers dismissed for trade union activities are fully compensated.

1. Declarations of loyalty or other similar commitment should not be imposed as a condition for reinstatement.

1. In a case of a strike by air traffic controllers in which public safety was endangered, the Committee considered that it could not ask the Government to allow the request for a return to work of those who were dismissed, as claimed by the complainant.

1. The necessary measures should be taken so that trade unionists who have been dismissed for activities related to the establishment of a union are reinstated in their functions, if they so wish.

1. It is inconsistent with the right to strike for an employer to be permitted to refuse to reinstate some or all of the employees at the conclusion of the strike, lock-out or other industrial action without those employees having the right to challenge the fairness of that dismissal before an independent court or tribunal.