If the employer has fired a protected employee, the court may order that the employee be employed until the trial is complete. However, for all employees (protected and unprotected), if the court of first instance reinstates an employee, it can order that the employee be employed until the final conclusion of the proceedings.

Thus, it may be that the employer hires the dismissed employee during the trial or between instances, and then wins the trial. However, even a win does not give it the basis to claim back the wages paid.

This is because the employee performed work from which the employer benefited. There is no way to reimburse him or her for this time or the benefits that the employer gained through it. Therefore, there is no basis for claiming back the wages or other work-related benefits granted during this period. 

If the employer does not have the option to assign the employee to his or her current job and decides to pay downtime wages, there are no grounds for claiming reimbursement either. An employee can claim that he or she was ready to do the work and would have taken it up if only given the opportunity. 
 

Find more in the PRO HR February 2024.