The Gazette 1976

G A Z E T TE

SEP T EMBER 1976

titled to receive a certificate from his employer specify- ing the dates of his employment and the nature of the work done, without containing anything unfavourable to the worker concerned. Dismissal for serious miscon- duct should take place only where the employer could not reasonably be expected to take any other course. Proper rules should be laid down for the selection of workers to be dismissed where economic necessity re- quires a reduction in the labour force. Reinstatement of workers unfairly dismissed appears to be the Recom- mendation's preferred solution where an invalid dismis- sal occurs. In the absence of reinstatement, adequate compensation is to be paid'. (Hepple & O'Higgins: Encyclopedia of Ijxbour Law, 1 -382). The Irish Government indicated at the time that they accepted the provisions in the Recommendation subject to some minor reservations. The British delegation voted for the Recommendation. The ICTU on a num- ber of occasions made it known that they would like to see appropriate legislation. As neither the Irish Bill or the present UK Acts go nearly as far as the Recommendation in the protection of workers against unfair dismissal, those parts of the Recommendation not yet implemented are relevant, as they indicate the possible, if not probable, content which future amendments of the law are likely to take. A number of criticisms might be made in relation to the present Bill. Excluded categories. Section 2 The Bill does not cover Civil Servants, members of the police or the Army and several other categories of Government employees. It does not apply to employ- ees at retiring age, or to close relatives. This latter ex- clusion may be based on an ingrained belief in the sanctity of the Irish family structure, and an unwilling- ness to interfere with this type of institutional sit- uation encountered in particular in Irish rural and domestic life. This exclusion will undoubtedly result in hardship and unfair discrimination on grounds which cou'd be regarded as repugnant to the equal protection articles in the Constitution. Apart from this, the actual wording of this exclusion is curious. One is tempted to ask—what if an employee is employed by a combinat- ion of these persons? It is interesting to note that in the UK Employment Protection Act, 1975, employees who are close relatives of the employer are not excluded any longer (but the husband or wife of the employer is still excluded). Except for pregnant women, the provisions of the Bill do not apply to persons with less than one year's service, apprentices, people of normal retiring age or People who are probationary under the terms of their contract of employment. The British approach which gives the benefit of the Act to employees employed for 26 weeks is surely pre- ferable. There is no reason why a period of one year should be preferred. (In the UK the one-year figure d ; d appear before the Trade Union and Labour Relations Act 1974). Pr egnancy — S. 6 ( 2 ) (g) The provisions of the Bill on pregnancy are am- biguous. It says that dismissal shall be deemed unfair where it results wholly or mainly from the pregnancy of the employee or matters connected therewith unless

the employee was unable by reason of the pregnancy to do adequately the work for which she was employed or to continue to do such work without contravention by her or her employee of a provision of a statute or instrument made under statute and there was not at the time of her dismissal any other employment with her employer that was suitable for her and in relation to which there was a vacancy or the employee refused an offer by her employer of alternative employment on terms and conditions corresponding to those of the employment to which the dismissal related, being an offer made so as to enable her to be retained in the employment of her employer notwithstanding preg- nancy. First of all, to refer to pregnancy 'or other matters connected therewith' is unacceptable as it gives far too much rope to an employer. Again in the UK in this connection much better rights are afforded under the Employment Protection Act. There is an entitlement to six weeks maternity pay which will come into force in 1977. (Certain conditions exist for this entitlement—the woman must have been continuously employed for more than two years up to the 11th week prior to date of her expected confinement. She must inform her employer in writing if he so requests, at least three weeks before her absence begins, and again on request, must produce a certificate from a registered medical practitioner or a certified midwife stating the expected week of con- finement), The maternity pay will last for six weeks starting after the 11th week prior to the expected con- finement date and will consist of 9/10th of a week's pay less the maternity allowance whether or not she is entitled to it. Finally, an employee who has been away on maternity leave of absence will be entitled as of right to return to work within 29 weeks of the actual date of confinement. She is entitled to return to her old job on terms and conditions no less favourable than those which would have been applicable had she not been absent. The Irish Bill noticably makes no provisions for sick leave during confinement. The question of whether or not absence for the birth is a justifiable absence remains unanswered. In general, dismissal will be considered unfair, unless there are grounds for justifying it. The burden of proof is borne by the employer who has to show that dismis- sal was not unfair. This is one of the more welcome provisions in the Bill as it bears on the concept of proprietas in employment. If an employee may be said to possess or own his job, this necessitates an as- sumption that the worker has committed no act war- ranting his dismissal unless the employer proves other- wise. In this way, control over continued possession is seen to remain in the employee's hands. Burden of Proof — S. 6 (1)

Grounds f or Un f a ir Dismissal — S. 6

The old contractual freedoms in relation to hiring and firing cannot be said to exist any longer in the same way as they did before. Under the Bill unfair dismissals can result from firing a person because of

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