The Gazette 1979

GAZETTE

JULY-AUGUST

1979

Labour Law — Another Area

Slipping Away

By ROBERT FLANAGAN

It has been a common complaint among Solicitors for

many years that taxation is an area of law which has been

allowed to slip out of the hands of Solicitors into that of

Accountants and other Advisors. Recent developments in

the area of labour law suggest that, notwithstanding the

impetus which might have been given by the recent spate

of employment legislation, this too is an area which will

soon Ire largely lost to the legal profession.

The participation of lawyers in the area of labour law,

particularly in the area of the negotiations of settlements

of industrial disputes has been at a low level in Ireland

since the introduction of the Labour Court by the

Industrial Relations Act 1946. The Labour Court

did not welcome the appearance of solicitors qua

solicitors though they were permitted to appear as spokes-

men for interested parties appearing before it. Indeed the

late Charles Cuffe, Solicitor, was the principal spokes-

man of the Federated Union of Employers in the Court

for many years.

Perhaps as a result of their non-involvement in labour

disputes, apart from the area of injunctions to restrain

picketing, the legal profession seems to have held back

from actively seeking to participate in the operation of the

Employment Appeals Tribunal, ("the Tribunal") estab-

lished by the Unfair Dismissals Act 1977. It appears

from the reports of cases heard by the Tribunal that

persons appearing before it are represented by such varied

groups of people as trade union officials, accountants,

and management consultants.

It is true that in a number of cases lawyers have

appeared before the Tribunal but the percentage of these

cases is surprisingly low having regard to the legally

substantial and complicated areas of law now falling

within the jurisdiction of the Tribunal. It may not be fully

appreciated by the legal profession (although there have

been several well publicised cases which should have high-

lighted the position), that the jurisdiction of the Tribunal

under the Unfair Dismissals Act far exceeds the juris-

diction of the Circuit Court in the amount of its awards.

Many professional and white collar workers come within

its jurisdiction and awards of up to £17,000 have already

been made by the Tribunal. It is true that there is no

provision for the awarding of costs unless a respondent

has acted frivolously or vexatiously but the amounts of

the awards which have been made, leave room for the

charging of reasonable costs to a successful applicant.

Another factor which seems not to have been fully

appreciated is that a claim under the Unfair Dismissals

Act is now an obvious alternative to the older common

law claim for damages for wrongful dismissal, indeed an

attractive alternative since the Tribunal has frequently

made awards which may be substantially greater (i.e. up

to a maximum of two years salary) than those which

could be obtained in the ordinary courts. Because of a

provision in the unfair Dismissals Act that claims under it

and claims at common law for wrongful dismissal are to

be mutually exclusive it is obviously necessary for every

solicitor consulted by a dismissed employee to consider

immediately the advisability of proceeding under the

Unfair Dismissals Act, particularly since the time for

instituting proceedngs under that Act is six months from

the date pf dismissal.

A solicitor so consulted, who overlooks the possibility

of bringing a claim under the Unfair Dismissals Act but

instead choses to institute a common law action might

well find himself the target of a professionl negligence

action even if the common law action were successful, in

that the amount which might have been achieved under

the Unfair Dismissals procedure might more than likely

be greater than that awarded by way of common law

damages.

Apart from Unfair Dismissals Act claims simpliciter,

the interaction of the Redundancy Payments Acts

1967/79, the Minimum Notice and Terms of Employ-

ment Act 1973 and the Unfair Dismissals Act gives rise

to a good deal of what could be described as "lawyers

law" in which both employers and employees may have

need of careful advice from a lawyer as to which of

several courses of action open to them would be likely to

be the most fruitful.

With this in mind the Public Relations Committee of

the Law Society arranged a series of seminars through-

out the country (i.e. Cork, Dublin, Limerick and Galway)

on the operation of the Tribunal. The Society was ex-

tremely fortunate to be able to enlist as participating

lecturers, Circuit Judge John Gleeson, who had been the

first Chairman of the Employment Appeals Tribunal

(formerly the Redundancy Appeals Tribunal) and Ercus

Stewart B.L. and Brian Gallagher, Solicitor, both of

whom have extensive experience of appearing before the

Tribunal.

Unfortunately, the legal profession as a whole still do

not seem to have appreciated the need to educate them-

selves on the operation of the Employment Legislation of

the 1970s and in particular the working of the Tribunal

because so far the response to the Seminars has been

disappointing, even when allowance is made for the

present difficulty of advertising Seminars due to the postal

dispute. The last of the four current series of labour law

seminars was held in University College Galway on the 26th

May 1979. If, as is hoped, further interest is indicated to the

Law Society by members of the profession, a further series

of such seminars can be arranged at various locations in the

near future.

As an additional spur to the continuing education of

the profession in this important and developing area of

legal practice the Publications Committee hopes to have

available shortly a book by Ercus Stewart B.L. on the recent

labour legislation.