The Gazette 1980

GAZETTE

JUNE 1980

The Governing Body's Committee ort Freedom of

Association has frequently reiterated in its interpretations

of these two conventions that, although there is no

express reference to strike action in them, they impliedly

guarantee a right to strike:

Freedom of Assembly: Digest

of Decisions of the Freedom of Assembly Committee of

the Governing Bodv of the ILO:

Geneva, 1972, paras.

240, 292.

Bearing in mind the foregoing considerations of

constitutional and international law, we turn to consider

the meaning of section 5(2) of the Unfair Dismissals Act.

The Meaning of Section 5(2)

During the Committee Stage of the Unfair Dismissals

Bill in Dáil Éireann, the Minister for Labour explained the

intention behind section 5(2):—

' . . . that no individual victimisation would result

from a return to work after a trade dispute'

further

'Ithel section would cover a number of employees

who would collectively feel themselves victims of

unfair treatment at the hands of the employer"

Dismissal in the circumstances referred to in Section

5(2) is 'deemed' unfair. At first glance, dismissal for

taking part in strike or other industrial action belongs to

the category of 'automatically unfair' dismissals (see, in

this context, Section 6(2) and (3) of the Act). There is no

doubt that unions and employers regard it in that light.

The 'deeming' in Section 5(2) would be straightforward

were it not for Section 6(1) of the same Act which

provides:

'Subject to the provisions of this Section I i.e.,

Section 61 the dismissal of an employee shall be

deemed,

for the purposes of this Act,

to be an unfair

dismissal unless, having regard to all the

circumstances, there were substantial grounds

justifying the dismissal' (emphasis added).

By virtue of this blanket declaration all dismissals are

deemed unfair for the purposes of the Unfair Dismissals

Act. What is the relationship between Section 5(2) and

Section 6(1)7'

Possible Interpretations

Contrary to the commonly held belief as to the

intention of Section 5(2), the sub-section may be

interpreted in four possible ways. The first two relate to

the principle which is enunciated in the text; the second to

the contrary principle which is implied therein.

Interpretative difficulties arise in relation to non-selective

or non-discriminatory dismissals which are

not

covered

by Section 5(2) but which arise in precisely the same

circumstances (where workers have participated in strikes

or other industrial action). Does the Act imply that these

are outside its jurisdiction? Here, too, there are

alternative interpretations.

In relation to the

positive principle

which is specified in

Section 5(2), it may be argued that

(1) the sub-section effects a conclusive presumption that

selective or discriminatory dismissals for taking part

in strike or other industrial action are unfair. (This is

generally regarded as the intention behind sub-section

2). Thus the adjudicating bodies would treat dismissal

in the circumstances of Section 5(2) as automatically

unfair independently of any excuses or justification on

the employer's part. Alternatively, it could be argued

that

(2) Section 5(2) does not effect a conclusive presumption;

instead Section 6(1) applies to dismissals under the

sub-section as to other dismissals 'for the purposes of

the Act. Thus an employer could prove that his

decision to dismiss selectively contrary to section 5(2)

was not unfair 'having regard to all the

circumstances'. The merits of dismissal would be

relevant.

Concerning the

implied principle

it may be argued that

(1) the contrary implied presumption in Section 5(2) is

conclusive; in other words, a non-discriminatory

dismissal would be conclusively presumed not to be

unfair. An employer could thus dismiss all of the

workforce for taking part in industrial action and not

contravene the legislation. The principle of

inclusio

unius exclusio alterius

would apply. Alernatively,

it could be maintained that

(2) the contrary implied presumption is not conclusive. A

non-selective dismissal is no less a dismissal 'for the

purposes of this Act' than any other. Section 6(1)

would apply and an employer could argue the merits

of his decision.

Interpretation of Express Presumption

The first two possibilities concern the positive element

or express presumption in the Act and may be considered

together. Section 6( 1) states the underlying principle upon

which the Act is based: a dismissal 'for the purposes of

this Act' is presumed unfair unless there are substantial

grounds to justify it. This is 'subject to the provisions' of

Section 6. That section enumerates certain grounds which

are generally believed to render a dismissal automatically

unfair.

No reference is made at any point, either directly

or indirectly, to dismissal for taking part in strike or other

industrial action. Looking at the plain words which are

used in the Act, it is clear that Section 5(2) does not effect

a conclusive presumption of unfairness. Whatever may

have been intended by the legislature, Section 6( 1) is so

drawn as to flood the entire Act. Every dismissal 'for the

purposes of the Act' is deemed unfair unless there are

substantial grounds to justify it. Section 5(2) dismissals

are no exception.

It may be argued in support of the present law that it is

reasonable to allow an employer to adduce substantial

grounds justifying the selective dismissal of strikers.

Employers are no less vulnerable than employees to

victimisation on account of industrial action. And if

industrial action is accompanied by unlawful activities

such as violence, obstruction or threats, would an

employer be dismissing unfairly if he took back into

employment only those workers who had not engaged in

unlawful activities? (see, analogously, ss.57(3) and 62,

EPCA, 1978, which do not lay down a conclusive

presumption.) This argument is, however, inconsistent. It

confuses the various incidents or results which may

accompany strike action with the act of striking itself. If

Section 5(2) were to embody a conclusive presumption,

that would not preclude the possibility of an employer

dismissing workers because they used unlawful acts or

methods in connection with strike action. In such

circumstances the cause of dismissal would not be the act

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