The Gazette 1976

G A Z E T TE

SEP T EMBER 1976

THE ANTI-DISCRIMINATION (UNFAIR DISMISSALS) BILL, 1976 Address to the Solicitors' Apprentices' Debating Soc- iety of Ireland by Mrs. Mary Matthews, LL.M., at a Meeting of the Society on 9th November 1976. To date, our Statute Law has contained a very serious omission in respect of the individual's right to fair treatment by his employer in circumstances where the employer either contemplates or decides that he should be dismissed. There is of course a vast area of law involved con- cerning involuntary dismissal. Up to now in Ireland an employee's recourse lay only through common law in actions for wrongful dismissal. The remedy available was damages as the action basically was a contractual one. Judges tended to favour employers. Lord Justice Scrutton was honest enough to admit in 1923 that 'The habits . . . the people with whom you mix, lead to your having a certain class of ideas of such a nature that— you do not give as sound and accurate judgments as you would wish. This is one of the great difficulties at present with Labour. Labour says 'Where are your impartial Judges? They all move in the same circle as the employers. How can a labour man or a trade unionist get impartial justice?' It is very difficult some- times to be sure that you have put yourself into a thoroughly impartial position between two disputants, one of your own class and one not of your class'. Similar sentiments were expressed in an Irish case by Gavan Duffy J. where he lamented that labour ques- tions had to be decided by the conceptions of individ- ual judges as to what may or may not be lawful in the 'milky way of the common law and some such judgments are by no means a certain guide'. (Cooper v Millea [1938] I.R. 749, 755 High Court). Workers in fact are generally used to relying on trade union strength — collective bargaining — as the best means of obtaining the kind of standards they want in their lives. This may originate in the fact that work- ers were operating in organised fashion long before the electoral franchise was extended to them. But what- ever about the origins of it, the fact is that workers expect nothing from the law or lawyers as an act of charity. The Irish Rights Commissioner, set up under the Industrial Relations Act, 1969, opposes the pres- ence of lawyers at his hearings. This of course can have its disadvantages. A prominent trade union leader once explained how he protected the interests of his mem- bers in redundancy tribunals—'I speak loudly' he said. 'I bang the table' and 'I get my way'. But the same man, because of his ignorance of the law, has often lost cases for his members. The point is that there are inherent defects or limi- tations in the role of law with regard to worker pro- tection—arising chiefly out of a suspicion on the part of workers concerning law, (it's wax nose?) and also out of the actual composition of the bench and of the legal profession. Things of course are changing; (see for example Kenny J.'s decision in Glover v. BLN [1973] I.R. 388); they must change; but the process is a slow one. The role of law in worker protection is in fact pot- entially great. The father of labour law in Britain, Prof.

Otto Kahn Freund in Labour and the Law (p. 92, des- cribed law as 'a technique for the regulation of social control'. In a labour context, law regulates the balance of power between worker and employer, between unions and management—It may tip the balance one way or the other. At any one moment in time the ex- tent to which the law helps or hinders trade unionism is itself largely a reflection of the balance of power in society as a whole. Bearing this in mind, the appearance of the present Unfair Dismissals Bill is indeed welcome. The statutory concept of unfair dismissal might be described as a further step along the path, already signposted by the Minimum Notice and Terms of Employment Act, 1973, and the Redundancy Pay- ments Acts 1967-'71, towards recognition of a man's property interest in his job. This concept is already recognised to some extent by the law of many advanced industrial countries; it restricts the hitherto largely un- limited authority of an employer to dismiss his em- ployees for whatever reason he thinks fit. In fact it has been said that objectification of jobs, and hence a dim- inution of their contractual nature is a long term con- sequence of the development of large scale industries and the nationalisation of production. Certainly job ownership is frequently talked about in the United States (see F. Meyers: Ownership in Jobs [UCLA 1964]) and it is becoming more so in Britain. The Irish Bill takes a line broadly similar to the provisions of the UK Industrial Relations Act, 1971. That Act has sinoe been largely repealed, replaced by the Trade Union and Labour Relations Act, 1974; it is fair to say however that the 1971 sections on unfair dismissals were more or less retained. The recent Em- ployment Protection Act, 1975. in the UK represents the second stage of the present British Government's promised programme of reform in the field of collec- tive and individual employment. This act forms an in- teresting basis for comparison with the Unfair Dismis- sals Bill in Ireland—how far the Act takes one along the road to reform in employment rights and how far it is leading to employer ruin is a matter of judgment. (Cynics are calling it (the Trade Union (Protection from Everybody) Act. 'The Employer Bashing Act' or other such titles). Apart from EEC influences, there is no doubt that the Irish Bill, as the UK Acts, take their tenor from ILO Recommendation no. 119 on the Termination of Employment which was approved at Geneva in 1963. The basic principle (of the Recommendation) is that termination of employment shall not take place unless there is a valid reason for termination connected with the capacity or conduct of the worker or based on the operational requirements of the enterprise. Certain reasons are always to be invalid reasons for terminat- ion : participation in union activities or membership; the taking in good faith of legal proceedings against an employer alleging a breach of some legal obligation; race, colour; sex; marital status; religion; political opin- ion; national extraction or social origin. Workers who feel aggrieved by an unjustifiable dismissal are to be entitled to a right of appeal. Workers given notice should be given time off from work to look for alter- native employment. A dismissed worker should be en- 185