12Resumption or reinstatement after Defence service

12 Resumption or reinstatement after Defence service

(1) Where a member referred to in the last preceding section completes a period of Defence service, he may, as soon as is reasonably practicable after so doing, but not, in any event, after the expiration of a period of thirty days, or such longer period (if any) as the Minister, having regard to the circumstances of the case, determines, after the completion of the period of the Defence service:

(a) if his contract of employment has not been terminated, apply to the person (in this section called the employer) who is the employer under that contract to resume work; or

(b) if his contract of employment has been terminated by reason of a change in the ownership of the business, undertaking or service in which the member was employed under the contract, apply to the person (in this section also called the employer):

(i) who is for the time being carrying on that business, undertaking or service; or

(ii) who is for the time being carrying on a business, undertaking or service with which has been amalgamated, or in which is comprised, that business, undertaking or service;

to be reinstated in employment.

(2) The employer shall, upon the member so applying, or as soon thereafter as is reasonably practicable, permit the member to resume work, or reinstate the member in employment, in the occupation in which the member was employed immediately before the commencement of the period of Defence service and under conditions not less favourable to the member than those that would have been applicable to the member in that occupation if he had not been absent, including any increase of remuneration to which the member would have become entitled if he had not been absent.

Penalty: Two hundred dollars.

(3) In any proceedings for an offence against the last preceding subsection, it is a defence for the employer to prove:

(a) that he agreed to the member resuming work or being reinstated in employment, but the member failed, without reasonable excuse, to present himself at the time and place agreed upon;

(b) that, by reason of a change of circumstances since the member was last employed (other than the employment of some other person to replace the member), it was not within the power of the employer, or was not reasonable or practicable, to permit the member to resume work or to reinstate the member in employment; or

(c) that, by reason of a change of circumstances since the member was last employed (other than the employment of some other person to replace the member), it was not reasonable or practicable to permit the member to resume work, or to reinstate the member in employment, in accordance with the last preceding subsection, but that the employer had offered to employ the member in an occupation, and under conditions, that were the most favourable that it was reasonable or practicable to offer him.