The Gazette 1980

GAZETTE

JULY-AUGUST 1980

Dismissal for participating in Strike or

other Industrial Action: Section 5(2) of

the Unfair Dismissals Act, 1977

Part II*

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

Interpretation of Contrary Implied Presumption

There has been much confusion about the contrary

implied presumption in Section 5(2) of the Act. It is

commonly believed that the sub-section affords complete

liberty for an employer to dismiss all of his employees

during a dispute and that the question of unfair dismissal

arises only where work is resumed

and

the employer is

selective in his treatment of the workforce.

Applying the principle of

inclusio unius exclusio

alterius

it might be deduced that, by deeming selective

dismissal for taking part in strike or other industrial

action to be unfair, Section 5(2) by implication deems

non-selective dismissal not to be unfair (conclusively or

otherwise) in the same circumstances. Because dismissal

of all the workforce for taking part in strike action is

deemed not to be unfair, this argument proceeds,

apparently logically, to the conclusion that Section 6(1) is

irrelevant. Thus, non-selective dismissals are nimbly

withdrawn from the protection of the Unfair Dismissals

Act. It would appear that an employee dismissed in such

circumstances would be left to seek redress at common

law where,

inter alia,

he would have to overcome such

obstacles as the effect of strike or other industrial action

on the contract of employment.

The British Employment (Consolidation) Act, 1978,

(Section 62) provides for an exclusion of jurisdiction

where all the workforce have been dismissed. Its wording

could not be more unequivocal: unless there is

discrimination in dismissal or in the reinstatement or re-

engagement of workers taking part in strike or other

industrial action the Act declares that 'an industrial

tribunal shall not determine whether the dismissal was fair

oi unfair'.

The belief that Section 5(2) of the Irish Act is

similarly restrictive may spring in some measure from the

view that Section 5(2) re-echoes Section 62 of the British

Act. But there is a significant difference between the

wording of the two provisions. Section 5(2) of the Unfair

Dismissals Act deems it unfair for an employer selectively

to dismiss in an industrial dispute situation — no more,

no less.

May complete freedom to dismiss non-selectively be

inferred

ex silentio?

It should be recalled that the

expressio unius

rule is 'often a valuable servant, but a

dangerous master to follow in the construction of

statutes'.

As it happens, the rejection of the

expressio

unius

rule in relation to Section 5(2) is supported by

constitutional and international law obligations. As we

have seen above, the right to strike is arguably a 'personal

right' within Article 40, s.3, sub-s7l of the Constitution.

If, by striking, a person is exercising a fundamental

constitutional right it would be

ultra vires

the

Constitution if the Legislature purported to grant an

immunity to employers who penalise their entire

workforce by dismissing each and every employee who

takes part in strike action.

The essence of a right as

opposed to a liberty to strike is that those exercising the

right are protected against any prejudice or detriment in

consequence of having struck, particularly at the hands of

their employer. Post- 193 7 Acts are presumed

constitutional. A practical effect of this is that if, in

respect of any provision or provisions in an Act two or

more constructions are reasonably open, one of which is

constitutional and the other or others are

unconstitutional,

'it must be presumed that the Oireachtas intended

only the constitutional construction, and a Court

called upon to adjudicate upon the constitutionality

of a statutory provision should uphold the

constitutional construction'.

Adopting the constitutional construction of Section 5(2),

as we are bound to do, Section 5(2) could not be

interpreted as implying that non-selective dismissals for

taking part in strike action lies outside the scope of the

Unfair Dismissals Act.

Additional arguments in support of this interpretation

are found in international law. Ireland, it will be recalled,

is a party to the European Social Charter. O'Higgins

has described the right to strike in the Charter as meaning

that

'. . . within the areas of protected conduct strikers

are not to be subject to any penalty, disadvantage

or detriment at the instance of an employer in virtue

merely of having participated in strike action. In the

European context this means that after the strike is

over the worker returns to work and continues in

employment without loss of any advantage (other

than loss of pay for the period of the strike)'.

O'Higgins refers to s. 26 of the Industrial Relations Act,

1971, which foreshadowed s.62 of the EPCA, 1978. He

writes:

'No more astonishing provision could be found in

this astonishing piece of legislation than this

provision that dismissal for striking, even after due

notice has been given, should, save in the most

exceptional circumstances, be a fair dismissal A

more blatant violation of Article of the European

Social Charter would be difficult to envisage'.

O'Higgins points out . that it would be in-

compatible with the Charter for a striker who resumes

work to be penalised as regards pension or other rights.

(It may even be unlawful for an employer to offer

re-

engagement

to a striker, as this involves a diminution of

the employee's accrued rights. See s.5(2)(b) and s.5(4) of

the Act.) It would clearly be incompatible with the

Charter to enable an employer to dismiss all of the

workforce for having participated in strike action.

•Part I of this article appeared in June Gazette, 1980, p. 101.

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