The Gazette 1977

MAY-JUNE

GAZETTE

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 79

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