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MAY-JUNE
exercising his constitutional right, the fact that the
form or notice of dismisssal is good at Common Law
does not in any way lessen the infringement of the
right involved or mitigate the damage which the
worker may suffer by reason of his insistence upon
exercising his constitutional right. If the Oireachtas
cannot validly seek to compel a person to forego a
constitutional right, can such a power be effectively
exercised by some lesser body or by an individual
employer? To exercise what may be loosely called a
Common Law right of dismissal as a method of
compelling a person to abandon a Constitutional
right, or as a penalty for his not doing so, must
necessarily be regarded as an abuse of the Common-
Law right because it is an infringement, and an
abuse of the Constitution which is superior to the
Common Law and which must prevail if there is a
conflict between the two. The same considerations
apply to cases where a person is dismissed or
penalised because of his insistence upon, or his
refusal to waive, his right to dissociate. In each of
these cases the injured party is entitled, in my view,
to recover damages for any damage he may have
suffered by reason of the dismissal or penalty
resulting from his insistence upon exercising his
Constitutional right, or his refusal to abandon it or
waive it. As there is no claim in the present case for
reinstatement, I do not need to consider that
matter."
In any case, an employer who takes on an employee in
some sense waives or contracts out of his constitutional
right not to associate with the employee: by exercising his
freedom to contract, the employer imposes obligations on
himself. Clearly the constitutional right to associate and
not to associate may be regulated by a contract made by
the individual, just as certain other constitutional rights
can be:
Re Tilson
(1951) I.R. 1;
State (Nicolaou) v Bord
Uchtala
(1966) I.R. 567. It appears that quite apart trom
the Constitution, there are circumstances in which the law
imposes an obligation to contract, as a result of the
actions of the person subject to the duty:
Constantine v
Imperial Hotels
(1944) K.B. 693: the inability of a
landlord unreasonably to withhold his consent to an
assignment of a lease, under the Landlord and Tenant
Acts; and certain Orders under the Restrictive Trade
Practices Acts making collective boycotts illegal. If these
are constitutional (and they certainly are) they clearly
imply that the right not to associate is a qualified one.
Moreover, the recent decisions in
Hynes
v
Garda
Commissioner Garvey
(High Court, 19th Nov. 1976) and
State (Gleeson)
v
Minister for Defence
(Supreme Court,
1st July 1976) show that there may be a right to
reinstatement where dismissal or its equivalent has
followed a procedure which did not comply with the rules
of Natural Justice or of "Constitutional Justice". If the right
to reinstatement exists where the dismissal from an
official position or an "office" was vitiated by a
procedural defect, there seems no reason to say that it
could not exist where the dismissal is vitiated by being
substantively unlawful. In the
Hynes case
the plaintiff was
granted a declaration that the defendant's order
dispensing with the Plaintiffs services was void, and in
Gleeson
v
Minister for Defence,
an order of Certiorariwas
granted to quash a discharge from the army. In both these
cases therefore the effect of the Courts' decisions was
reinstatement. These cases could be distinguished on the
grounds that they dealt with offices rather than contracts
of employment with a private employer, but it is not clear
whether the constitutional right to one's livelihood (as
distinct from the legal incidents of the situation) depends
on the technical legal nature of the job, or indeed on
whether he is employed or self-employed. Nor is it clear
whether the employer's right of association depends on
the nature of his association with the employee or office-
holder: see
Glover v BLN,
Supreme Court, 18th
December, 1972, (1973) I.R. 388. On the face of it,
Constitutional Rights should depend on technicalities, in
particular on technicalities which could be altered by
legislation.
It also seems that in appropriate circumstances an
employee fearing wrongful dismissal could get a
declaratory judgment or a
quia timet
injunction to prevent
it. If this is correct under the Constitution, it would be
illogical if no statutory right to reinstatement could validly
be created, since the rights of the employer and the
employee would not be materially different in the two
cases. It may be helpful to consider a hypothetical
situation similar to that in
Educational Co. v. Fitzpatrick.
Suppose an employer agreed with a union or with his
unionised employees to dismiss certain employees unless
they joined a union. In such circumstances there seems to
be no doubt that the Constitutional Right to work of the
victimised employees would be upheld by the Courts, in
proceedings brought either for wrongful dismissal or "to
prevent the threatened or impending infringement" of
their constitutional rights:
East Donegal Livestock Mart v
Att. Gen.
(1970) I.R. 317. Clearly in proceedings to prevent
a threatened infringement an employer could not plead
that his Constitutional Right not to associate entitled him
to enter into a conspiracy to breach his contract of
employment or to violate the constitutional rights of
others. It would be a totally irrational result if the
Constitutional Rights of the employees to retain their jobs
(as distinct from obtaining damages for losing them)
could be defeated by the employer's right not to associate
with them, depending on whether or not they had issued
proceedings before the purported dismissal took effect. It
is important to bear in mind that the question being
discussed is not whether there is a specific right to
reinstatement under existing law, but whether the
Constitution allows such a right to be created by
legislation.
In
Moran v Attorney General
(at p. 87) Doyle, J. said:
"The revocation (of a taxi driver's licence)... operated to
deprive each plaintiff of his previous means of livelihood
as a taxi driver. It seems clear that such deprivation
affects the 'personal rights' and 'property rights' of the
citizen recognised in Article 40.3.1 and 2 of the
Constitution" and in
Educational Company v. Fitzpartick
- (1961) I.R. (at p. 397) Kingsmill Moore J. said "The
right to dispose of one's labour and to withdraw it seems
to me a fundamental personal right..." See also
Brendan
Dunne v. Fitzpatrick
(1958) I.R. 29; Butler, J. in
The
State (Gleeson) v. Minister for Defence.
Faced with a conflict between the Constitutional Rights
of the employer and the employee in the case of wrongful
dismissal, there seems — on even this brief analysis — to
be no reason to say that the employer's rights are
absolute, or that they must necessarily over-ride those of
the employee. Indeed, it seems an obvious case in which
the Legislature is free to regulate and reconcile, as far as
may be, both rights, especially since,
ex hypothesi,
the
situation has arisen as a result of the voluntary act of the
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