The Gazette 1976

G A Z E T T E

SEP

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%

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

Valuation for compensation

is our business

Osborne King & Megran 1

Dublin 760251

Cork £1371

Galway 65261

187