187 / 274
G A Z E T T E
N O V E M B E R
1976
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
1 8 8
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