The Gazette 1977

MAY-JUNE

GAZETTE

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 78

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