The Gazette 1976

G A Z E T T E

N O V E M B E R

1976

goes ahead and conducts the hearing. Will this apply if, as is likely, an employer refuses to co-operate? And where a recommendation is made in such circum- stances, will there be a stalemate situation or will an employer be likely to appeal to a tribunal? It is quite clear that the Rights Commissioner's recommendation would not carry any particular weight if there is a right of appeal to the EAT. This would presumably be taken in virtually all cases, particularly by the employee if he is dissatis- fied with the Rights Commissioner's recommendations. He will almost certainly be, if the recommendation is unfavourable to him. In the last analysis, if an employer is refusing to obey a tribunal award, the Minister may within 6 weeks take the matter to the Circuit Court (s. 10) This is to secure 'the appropriate redress' according to the Act. But suppose the redress was re-employment, what could the Court do about it? Difficulties clearly arise here in view of objections in Equity to the award of injunctions, specific performance, etc. where personal supervision is required by the Courts. But an even more fundamental objection exists. An aggrieved employee cannot bring enforcement pro- ceedings against an employer who fails to carry out a determination of the Appeals Tribunal. The option of bringing proceedings is left solely to the Minister? This however cannot explain the omission: the Bill could have arranged for costs to be paid by the Minister in- depently of his bringing the action himself. The fact that the Minister pays costs in such cases is welcome of course (s. 10.3). Natural Justice— Section 6 of the Bill says that the dismissal of an employee shall be deemed to be unfair unless having regard to all the circumstances, there were grounds justifying the dismissal. Again in s. 6 (5) it says that in determining whether the dismissal was unfair the employer has to show that the dismissal resulted wholly or mainly from one or more matters specified in the Bill or that there were other substantial grounds justi- fying the dismissal. Later, in dealing with the notice that must be given to employees of grounds for dis- missal, the Bill says, at s. 14: the employer shall, if so requested, furnish to the employee within 14 days, particulars in writing of the grounds for the dismissal but in determining whether the dismissal was unfair there may be taken into account 'any other grounds which are substantial grounds and which would have justified the dismissal'. Throughout there is the omission of an important qualifying phrase that the grounds for dismissal should have 'existed at the time of dismissal' (S. 14 is partic- ularly horrifying in its implications). Carvill v Irish Industrial Bank Ltd. [1968] IR 235 laid down the welcome and surely proper approach that an em- ployer could not rely on grounds existing after the actual date of dismissal as justifying dismissal. In this way it differed from the British case of Boston Deep Sea Fishing and Ice Company v Ansell (1888) 39 Ch. D 339 which held that an immediate dismissal for misconduct may be justified on grounds coming to light after dismissal. Natural or constitutional justice

would then in fact be the natural, if not the only re- medy for the grievance. (Damages might also be award- ed for breach of the right per se: Meskell v CIE [1973] IR 71). The alternative remedy is damages. Section 7 (1) (b) is about compensation and it is clearly not for loss of the job per se. There is an upper limit. Why? And why should damages be consequential? The level of compensation is far too low. No compensation might be payable to an unfairly dismissed employee who had been given proper notice and had got a new job at reasonable rates of pay. We do not know if Glover's case ([1973] IR 388 High Court) will apply to unfair dismissal. If so, it will mean that damages award- ed for breach of the statutory concept will be subject to chargeability to income tax etc. And, as we know, this operates in favour of the employer— the tax is deducted at source; the Revenue do not get the amount of the tax. The dissatisfaction of the Royal Commission which sat to consider the effects of Gourley's case [1956] AC 185, upon which Glover was based, should be taken into account. In particular, the concluding paragraph of the Commission's report should be heeded (Cmnd. 501, 1958). In Britain the situation is again better. The aggrieved employee is always entitled to a basic award which is equivalent to 2 weeks pay or an amount equivalent to what he would have received had he been dismissed for redundancy instead of unfairly dismissed—(which- ever is the greater). The maximum amount of the basic award is £2,400. It is payable whether or not the worker has suffered any financial loss due to the dis- missal. In addition then, if he has suffered financial loss, the worker is entitled to a compensatory award of up to a maximum of £5,200. Compensation here is nor- mally awarded under different heads. Procedure —S . 8, 9, 10 The procedure is that a claim must be lodged by a dismissed person within six months of the date of dis- missal with a Rights Commissioner or the new Employ- ment Appeals Tribunal. Either party may object to a hearing before the Rights Commissioner. A Rights Com- missioner may make a recommendation in relation to a claim and if this recommendation is not carried out, the employee may then bring his cla : m to the Employ- ment Appeals Tribunal for a determination. Hearings will generally be in private. From the EAT, in certain circumstances, appeal lies to the Circuit Court. This procedure is, as the Minister remarked during the Second Stage Reading of the Bill, 'a little complic- ated'. However we should perhaps be assured as he intends, he says, to 'produce literature when the Bill becomes law which will leave employees and employers in no doubt about the procedures they should follow'. The three stages for seeking redress under the Bill seem unnecessarily cumbersome. The Rights Commis- sioner can only make recommendations which are not binding. Further he cannot force parties to attend his hearings. A party can send him written objections if he does not wish to take part in proceedings before the Commissioner; this is in the Industrial Relations Act 1969. The Rights Commissioner has developed a convention whereby if he hears absolutely nothing he

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