The Gazette 1980

GAZETTE

JUNE 1980

Dismissal for participating in Strike or

other Industrial Action: Section 5(2) of

the Unfair Dismissals Act, 1977

Mary Redmond, B.C.L., LL.M, Solicitor, Fellow of Churchill College, Cambridge.

The Need to Regulate Loss of Employment in Strikes

It is sometimes forgotten that collective labour

relations is not principally about industrial action but the

promotion and regulation of collective bargaining. This

includes as one element the protection of the freedom to

strike. The freedom to strike is a crucial factor in the

conflict between the principal interest of management and

of labour in collective bargaining. The principal interest of

management has always been the maintenance of

industrial peace over a given area and period. The

freedom to strike plays an important role in assisting the

principal interest of labour, namely, the creation and

maintenance of certain standards over a given area and

period — standards of distribution of work, of rewards,

and of stability of employment.

As Lord Wright put it in 1942, in

Crofter Harris

Tweed v. Veitch,

'[Thel right of workmen to strike is an essential

element in the principle of collective bargaining'.

It is an essential element not only of the unions'

bargaining power, that is for the bargaining process itself,

it is also a necessary sanction for enforcing agreed rules.

If employees are penalised for taking part in strike action,

industrial relations consequences vary depending on the

strength or weakness of the union or unions involved

(although strikes need not be associated with unions). If a

union is weak, there will be little effective resistance to the

actions of a hostile employer. The concentrated power of

accumulated capital can be matched only by the

concentrated power of workers acting in solidarity. As

long ago as 1896, in

Vegelahn v. Guntner,

Oliver Wendell

Holmes, in a classic passage of a dissenting opinion in the

Supreme Judicial Court of Massachusetts, stated that

'Combination on the one side is patent and

powerful. Combination on the other is the necessary

and desirable counterpart, if the battle is to be

carried on in a fair and equal way'.

Where there is nothing like equilibrium between labour

and management, there is a pressing need for legislation

to regulate the loss of employment in strikes. This need is

increased by the uncertainty of common law rules

concerning the effect of strike and other industrial action

on the individual contract of employment.

In this context, Section 5(2) of the Unfair Dismissals

Act, 1977, is of crucial importance. The sub-section

purports to deal with the dismissal of employees for

participating in strike or other industrial action. It

provides that

'the dismissal of an employee for taking part in a

strike or other industrial action shall be deemed, for

the purposes of this Act, to be an unfair dismissal, if

(a) one or more employees of the same employer

who took part in the strike or other industrial

action were not dismissed for so taking part, or

(b) one or more of such employees who were

dismissed for so taking part are subsequently

offered re-instatement or re-engagement

and

the employee is not.'

The sub-section has been described (correctly, as will be

seen) as an 'extremely obscure and technical' provision.

There is no empirical evidence of the number of workers

who lose their jobs through striking: nonetheless, given

the high number of man-days lost each year on account of

strikes, it is telling that the sub-sectioin has never been

invoked (Official Statistics published in the Central

Statistics Office in March, 1978, issue of the

Irish

Statistical Bulletin

show that there were 152 disputes in

1978 involving 32,558 workers with a loss of 624,266.)

Prima Facie,

Section 5 protects the freedom to strike.

It is consonant with the theory that Ireland recognises a

positive right to strike in domestic and international law.

This article will touch on the extent of such recognition

before proceeding to examine Section 5 (2) and the extent

to which it may be said to achieve the desired equilibrium

between laour and management where job security is at

risk on account of industrial action. British Law is

referred to where appropriate or enlightening.

The Right to Strike — Constitutional and International

Law: A Fundamental Right

In the constitutional sense, the right to strike is a

human right, impliedly recognised by Art. 40.3g.

Bunreacht na hÉireann.

The right has not been

analysed in any depth. On three occasions, it has been

referred to,

obiter,

by judges. The first reference occurs in

Brendan Dunne Ltd.

Fitzpatrick and Others

I 19581

I.R. 29, 34. Mr. Justice Budd declared that

'The Articles of the Constitution to which I have

referred I Arts. 40.3, 40.6, 431 seem to me to

preserve amongst other rights those of the

employer and worker respectively to deal with and

dispose of their property and labour as they will

without interference, unless such interference be

made legitimate by law. The right of citizens to

assemble peaceably, to express their opinions

freely are guaranteed only subject to public order

and morality'.

The language here is ambigious. Only by a generous

extension of the words used could the worker's right 'to

deal with and dispose of his property and labour be taken

to include a right to strike. It is clear that the right —

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