The Gazette 1976

G A Z E T TE

SEP

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 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

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

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.

Burden of Proof — S. 6 (1)

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.

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

186