The Gazette 1976

G A Z E T TE

SEP

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-

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