The Gazette 1980

GAZETTE

JULY AUGUST 1980

—Continued from page 121.

employment are far from certain. In

Becton Dickson Ltd.

v. Lee & Co.

Walsh J. in the Supreme Court implied that

if workers agree to a particular condition — an express

no-strike condition — they will not be able subsequently

to raise this condition as a trade dispute.

From this it is

arguable that collective action by workers which is

inconsistant with a peace obligation may constitute

unlawful means arising out of breach of contract: in

Ireland, the courts look upon collective agreements as

contracts, it is presumed the parties intended to be bound

by their agreement.

Where a peace obligation is

incorporated into the individual contract of employment,

either expressly or by necessary implication, any form of

industrial action in opposition thereto will be unlawful.

Constitutional law may also be involved in assessing

the lawfulness of industrial action. Where workers

involved in an industrial dispute employ means which are

likely to bring about a violation of the Constitution, their

action may be unlawful.

In sum, 'unlawful action' in Section 5(2) may

encompass an extraordinarily wide field. So interpreted in

relation to industrial action, the sub-section is reduced to

an absurdity. '[An] intention to produce an unreasonable

lor absurd] result is not to be imputed to a statute if there

is some other construction available'.

The only 'other

construction available' in the circumstances would be a

severe narrowing of the ambit of unlawfulness. If the EAT

were to confine its interpretation of 'unlawfulness' to the

principles of the criminal law, an unreasonable or absurd

result in relation to Section 5(2) could be avoided.

Otherwise, in relation to industrial action, the sub-section

will be devoid of content for all practical purposes.

We turn finally to examine certain matters which might

arise in relation to the practical application of Section

5(2) of the Unfair Dismissals Act.

Selectiveness

British caselaw deals with a number of issues which

could be germane to the operation of Section 5(2) of the

Irish Act.

Concerning the question of selectiveness, for

instance, the House of Lords in

Stock v. Frank Jones

declared that, in deciding whether employers had picked

and chosen, all those who 'had taken part in' the strike or

industrail action, not just those still taking part at the date

of dismissal, should be considered. It is irrelevant that

some strikers may have been taken back before others.

If an employer warns strikers that they will be dismissed

unless they return by a certain date, and if, say, two

return but the rest remain on strike and are dismissed,

Section 5(2) could be invoked by the dismissed

employees: the workers who were taken back were

nevertheless workers who 'took part in' the strike. This

may put the employer in a difficult position since, if he

issues an ultimatum that the strikers must return or be

dismissed, that ultimatum is valueless if even one of the

strikers returns. It would then be impossible for him fairly

to dismiss the remainder (within Section 5(2)).

The problems concerning reasonableness of dismissal

which have arisen in Britain should encourage the

appropriate parties in Ireland to urge that Section 5(2) be

amended so as to embody a conclusive presumption.

Such an amendment would sidestep a multitude of

problems. In

Cruikshank v. Hobbs

for example, which

arose out of the Newmarket stable lads' strike of 1975,

the overall reasonableness of the dismissal had to be

determined in accordance with the then relevant

legislative provision, schedule 1 of the Trade Union and

Labour Relations Act, 1974. The employer dismissed five

of the six strikers for redundancy and the question was

whether it was unfair in accordance with the relevant

legislation to select those strikers for redundancy. The

EAT rejected the submission that striking was irrelevant

to the issue of selection for redundancy on the grounds (i)

that the strike might have contributed to the need for

redundancies; and (ii) that if the strike had been long

enough there might be technical or administrative

difficulties in taking the men back; and (iii) that to take

back strikers and dismiss those who had remained at

work would cause friction, impairing the efficiency of the

undertaking. Accordingly, by a majority, the tribunal

held the dismissals to be fair.

A further difficulty is illustrated by

Thompson

Eaton.

Some employees objected to the way in which

management wished to test new machines and

accordingly, when one of the machines was installed, they

stopped work and crowded around the machine to

prevent proving operations. After being warned, the men

were dismissed. The EAT held that the men were either

engaged in a strike or at the very least in 'other industrial

action' and accordingly dismissed the application for

unfair dismissal. The Tribunal pointed out that the

employer's approach to the issue had been 'obtuse'; yet

the courts would be put in a difficult position if the law

required them to inquire into the merits of the initial

dispute. The EAT did acknowledge that a danger exists

where there is gross provocation and the dispute has been

provoked or engineered by the employer. It recognised

that para. 8 (the provision excluding jurisdiction in

TURLA, 1974, sch. 1) ought not to apply in such a case

and suggested that one way of achieving this would be to

say that the employer's conduct amounted to a

repudiation of the contract of employment by him with

the result that the strike occurred

after

dismissal. This

argument would not be ruled out by the House of Lords'

decision in

Photo Productions Ltd. v. Securicor

In any

event, the later British case of

Wilkins & Others v.

Cantrell & Cochrane (Great Britain) Ltd

gave the

quietus to Mr. Justice Phillips' suggestion that an

engineered strike might not fall within the legislation. The

EAT held in

Wilkins

that the mere act of going on strike

did not amount to a sufficient indication by an employee

that he was treating the contract as having been

terminated by the employer's repudiation. The following

extract from

Wilkins

was cited with approval by Talbot J.

Marsden & Others

Fairey Stainless Ltd.

'Even if the employers had been in fundamental

breach of contract by requiring the employees to

drive vehicles which were overloaded [which was

alleged in the case before him] the act of going out

on strike could not be held to be a sufficient

indication by an employee that he is treating the

contract not only as capable of being repudiated but

as one which has been broken and which he,

therefore, regards as at the end. The point of a

strike is so that the existing contract can be put

right, so that grievances can be remedied, so tha5

management will agree to the demands. The law

makes it plain that going on strike does not

123