The Gazette 1976

G A Z E T T E

SEP T EMBER 1976

trade union or staff activities either outside of working hours or during permitted working hours; religious or political beliefs; refusing to join a trade union unless a closed shop already existed at the time of recruitment —this seems to presume the constitutionality of the closed shop—something which cannot be done by any means. (It may be what Mr. O'Leary meant when he said that the Bill may be tested for constitutionality in regard to freedom of association. If this provision, which is in s.6(2)(c) of the Bill is left standing, it could well be challenged on a future occasion); civil or crim- inal proceedings against the employer which involve the employee as a party or witness; the race or colour of the employee; pregnancy; unfair selection for redun- dancy. Dismissal however shall not be considered unfair for capability, competence, or qualifications for the work for which a person is employed to do; conduct; redun- dancy; if the employment contravenes other statutory requirements. The last two grounds are straightforward enough. But the first two are likely to cause problems to both em- ployers and employees alike. The British legislation was accompanied by the publication of a Code of In- dustrial Relations—rules of the road, as it were, of employee-employer behaviour. We would need guide- lines as to what 'conduct', 'competence' means. Some employers still insist on female employees wearing skirts, a Victorian hangover no doubt. Could a girl be fairly dismissed for wearing slacks to work? Or a man for not wearing a tie? Who is to decide? Of course the Minister is not blind to these deficiencies. During the Second Stage Reading on the Bill (5, xi 1976) he said that 'It is my belief that in addition to procedures at the level of the firm there should also be a National Code of Agreed Disciplinary Procedures relating to dismissals. On the enactment of the Bill it is my in- tention to initiate discussions with representatives of trade unions and employers with a view to agreeing such a Code'. It is obviously vital that such a code be produced as soon as possible. Remedies — S.7 The remedies provided are re-engagement or dam- ages. This term re-engagement occurs throughout the Bill, particularly in s.7. It is interesting to refer back to the wording of ILO Rec. no. 119 at this stage. Tt refers to 'reinstatement' not Teengagement', and this is a crucial point where the Irish Bill differs from the ILO Recommendation. This is, in my view, one of the major defects of the Bill—a Bill which according to the official government statement about it. will be a 'charter for workers' rights' if passed by the Oireachtas. In the Government Statement the matter is very care- lessly described by saying an employee found to be un- fairly dismissed would either get his job back or be awarded compensation of up to two years pay' (Em- phasis mine). This sort of phrase no doubt resulted in the term reinstatement being used in explanatory com- ments in the daily press on the Bill (see e.g. The Irish Times, 21 Sept. 1976). The point is that, Re-engagement is not the same thing

as getting your old job back; it is not the same thing as reinstatement. The term reengagement means getting a job again with the former employer not necessarily the same job or. if the same job, not on the same terms and usually it involves loss of seniority rights. (Note the misleading use of 'His job . . .' in the government state- ment above—this suggests reinstatement). In Britain the remedy was once confined to reen- gagement; now an Industrial Tribunal there may award reinstatement or reenagemcnt. Such remedies are pre- sently awarded in 2-4% G f the cases. Under the new Employment Protection Act it is expected that there will be a significant increase in that percentage num- ber in line with the present mood of the trade union movement to seek to retain jobs rather than obtain compensation. The mood in Ireland will very probably be similar. True protection of a worker's interests in relat'on to unfair dismissal demands reinstatement, in my view. Constitutional arguments are sometimes raised in op- position to re-engagement (even) of employees; it is alleged, inter alia, that an employer cannot be forced to take a man back to work. A few brief remarks may be made on the topic. First of all, a statutory concept of unfair dismissal severely undermines the contractual nature of the em- ployment situation. Secondly, a recent case in the High Court enumerated as a personal constitutional right 'The right to continue to earn a living, a right which could be forfeited only if the procedure concerned is clearly lawful: Gleeson v. Minister for De f ence and the AG (Dec. 1975). Taking 'procedure' in a wide sense one interpretation of this case could be that an unfair dismissal, because it is also the breach of constitutional right, must be deemed null and void. Reinstatement

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