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GAZETTE
MAY-JUNE
The Constitution and the Right to
Reinstatement after Wrongful Dismissal
By Mary T. W. Robinson and John Temple Lang.
It has taken a remarkably long time for the. right to
reinstatement or re-engagement after wrongful dismissal
to become a normal part of Irish legislation in the area of
Industrial Relations. These rights are now provided as
redress for unfair dismissal under section 7 of the Unfair
Dismissals Act 1977. Also there is a provision in the
Anti-Discrimination (Employment) Bill 1975 for
amendment of section 9 of the Anti-Discrimination (Pay)
Act 1974, to introduce these rights in the case of a
woman who has been dismissed for pursuing an equal pay
claim.
There appears to have been a body of legal opinion
supporting the view that the Constitution of Ireland
prevents any legislation being enacted which creates any
such right to reinstatement or re-engagement after
wrongful dismissal. During the Second Reading of the
Unfair Dismissals Bill in the Senate (29/3/'77, Vol. 86,
No. 7, Col. 540-541) the Minister for Labour said:
"Senator Robinson raised the point that we did
not provide in the equal pay legislation for re-
instatement of a person seeking implementation of
its provisions. It is true that at the time
constitutional problems were cited that prevented us
from doing this. Obviously the Constitution has not
changed nor has the legal advice available to us. It
would be tragic to think that legislation that
Deputies and Senators in both Houses agree is
desirable should be held back or rendered less
strong because of legal advice that the Constitution
could be cited against these provisions. It would be
nonsense to think that legislation did not offer the
option to the aggrieved party of re-instatement. The
Constitution has not changed but we have accepted
the possibility of certain elements of the
Constitution being cited against the legislation
before us. On the other hand, there is conflict in
relation to this advice . . ."
The present article discusses whether the doubts which
have been expressed about the constitutionality of this
and similar legislation are justified.
The question would present no difficulty if the right to
re-instatement was given directly or indirectly under
European Community Law. As a result of the Third
Amendment to the Constitution, in that case the right to
reinstatement could clearly be given.
The basic constitutional problem is said to arise from
the employer's right to associate, which, it is argued,
carries with it a right not to associate and therefore rules
out any provision for compulsory re-instatement.
However, the employee's right to work is also involved.
This is clearly a constitutional right:
Moran v Att. Gen.,
110 I.L.T.R. 85, at p. 87 (1976). The question discussed
here is not whether the Constitution itself already gives
the right to reinstatement, although the right to work and
earn one's living might well imply a right not to be
wrongly deprived of one's job, but whether the
Constitution prevents any such right being given in cases
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of wrongful dismissal, in any sense of the phrase. Nor is
the question the narrower point of whether any specific
legislation is unconstitutional: it is said that no legislation
giving any right to reinstatement could be constitutional,
ever.
The difficulty is said to be due to the fact that the
employer's right of association implies a right not to
associate, and that since the employer could not have
been obliged to employ the employee in the first place, he
cannot be obliged to reinstate him. Since this would mean
that the employer would be constitutionally entitled to
take advantage of his own wrong (the wrong in question
moreover being a violation of the constitutional rights of
another), the theory would be both startling and serious in
its implications if it were true.
In the
National Union ofRailwaymen v Sullivan
1947
I.R. 77, legislation was held unconstitutional which would
have denied to employees the right to form unions having
the same privileges as officially approved unions, and so
creating pressure on them to join the approved unions.
Perhaps more directly relevant,
Educational Co. of
Ireland v Fitzpatrick
1961 I.R. 345 laid down that
picketing is illegal if it is intended to force certain
employees to join a union: this involved the rights of the
employees in question to continue in their jobs as well as
their rights to be free from compulsion to join a union
which they did not want to join.
Although in
N.U.R. v. Sullivan
the legislation in
question was held to deny the right of association, not
merely to regulate it, it is clear that in principle legislation
regulating the right of association is constitutional, and
that the distinction between denial and regulation of this
right (and other constitutional rights) is a valid distinction
even if it is not always easy to apply. The right to
associate, and the right to be free not to associate, are
qualified rights, not absolute rights. The presumed right of
the former employer not to associate with his wrongfully-
dismissed ex-employee is hardly a more absolute right
than the right to keep a job, especially if the employer is a
company which may not have all the constitutional rights
of an individual.
The proper constitutional balance was considered in
depth by Mr. Justice Walsh in
Meskell v C.I.E.
(1973)
I.R. 121 at p. 135, as follows:
"one of the questions which was argued in detail
in the present appeal was the effect of the
constitutional right to form an association, or the
constitutional right not to belong to an association,
on the ordinary Common Law rights of an employer
to engage or dismiss his workers when, in doing so,
he was not in breach of contract. If an employer
threatens an employee with dismissal if he should
join a trade union, the employer is putting pressure
on the employee to abandon the exercise of a
constitutional right and is interfering with his
constitutional rights. If the employer dismisses the
worker because of the latter's insistence upon