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Dáil Éireann debate -
Wednesday, 26 Jan 1977

Vol. 296 No. 2

Anti-Discrimination - (Unfair Dismissals) Bill, 1976: Committee Stage (Resumed).

Question again proposed: "That section 14 stand part of the Bill."

When we closed on this Bill yesterday, I had made the point on the contract now required by an employer, but I expressed concern about subsection (4) which deals with notice to employees of procedure for and grounds of dismissal. Subsection (4) reads:

Where an employee is dismissed, the employer shall, if so requested, furnish to the employee within 14 days of the request, particulars in writing of the grounds for the dismissal,...

Who is entitled to make the request? Is it the employee or can somebody on his behalf make it? I ask this question because of other points we will be coming to in later sections. The Minister agreed to amend this Bill on Report Stage to cover the employee who dies within that period and whose dependants may become entitled to benefit from the unfair dismissal.

Section 14 (4) reads:

Where an employee is dismissed, the employer shall, if so requested, furnish to the employee within 14 days of the request, particulars in writing of the grounds for the dismissal, but in determining for the purposes of this Act whether the dismissal was unfair there may be taken into account any other grounds which are substantial grounds and which would have justified the dismissal.

Section 14 (1) gives the structure of the agreed dismissal procedure. Subsections (2) and (3) give further details on that, and subsection (4) gives the option which a dismissed individual employee can exercise, that is, he can seek a written statement of the reasons for his dismissal. This is additional to the other provisions of this section. Does the Deputy want to know who, on his behalf, can make the request?

Yes. I appreciate that the employee can do it himself, but who can do it on his behalf? Does it have to be a legal man? If he is unable to do it himself, can his wife, son or daughter do it?

Anyone authorised by the employee to act on his behalf could obtain reasons in writing for his dismissal.

What happens in the case of an employee who dies shortly after his dismissal?

I intend to move an amendment on section I on the Report Stage to cover the case of a deceased employee which will enable his representatives to carry on the complaint.

On that assurance I am prepared to agree to section 14. I am glad the Minister conceded that there could be a necessity for covering the dependant situation in the event of an employee dying before the claim has been submitted or before compensation, if awarded, has been paid.

Question put and agreed to.
SECTION 15.
Question proposed: "That section 15 stand part of the Bill."

This section outlines the alternative remedies available to the employee. I am not opposing the section but I am a little concerned about the apparent closing of the door for the employee. Under this section it appears to me that if he opts to take his case to a rights commissioner he can then use that process through to the appeals tribunal, and has no comeback under common law. But if he goes to common law in the first place he cannot use the machinery of this Bill, which I would like to see encouraged. A very important development on Committee Stage dealt with the private hearing of a case by the rights commissioner. The ideal solution in these cases would be the hearing of them quickly. Fast action here will help rather than hinder the situation. I am concerned about the experience in Britain. If a situation develops where too many cases are lining up before a rights commissioner and there are long delays as a result the impact of the Bill will be partly lost. I would like to see the rights commissioner being used rather than common law procedures. I fully accept the Minister's point that if it does not go to common law there is no way the employer can raise it with the commissioner or the appeals tribunal. Is it worth examining whether or not that divide should take place? People should be encouraged to use the rights commissioner more, although they have the option after the case has been considered by the rights commissioner of going to common law. The Minister might say that that would commit the rights commissioner to being a witness in a court of law. I would prefer that the machinery provided under this Bill would be used to the fullest. The employees and the trade unions should be encouraged to use it rather than common law machinery.

This section does not prejudice the rights of the individual to use common law, but where a person gives notice in writing under section 8 (2) of this Act he shall not be entitled to recover damages under common law because at that stage the State is involved in expenditure. Does the Deputy suggest that the reference to common law should not exist side by side so as to ensure that people will use this machinery more?

I fully accept that the employee must have an opportunity to go to common law if he wishes. I am anxious to see a climate created whereby the rights commissioner would be used rather than common law. People should be encouraged to use this machinery in preference to the other.

When discussing another section I undertook between now and Report Stage to look at the idea of setting out a procedure from rights commissioner up. This option between the court and the rights commissioner was taken over from the 1946 Act. I agree with the Deputy that the more we get people to use this machinery, rather than spending years in common law litigation, the better. We cannot cut off the option of the individual to take the common law course.

If the Minister agrees with my sentiments I am happy enough. With a slight reservation of a possible amendment on Report Stage I accept this section.

Question put and agreed to.
SECTION 16.

I move amendment No. 22:

In page 13, subsection (4), line 6, to delete "extend" and substitute "limit" and in lines 6 and 7 to delete "to other employments connected with medicine or health".

I am concerned that so much power is being made available to the Minister under this section. Section 3 seemed to have the medical or health professions, particularly at training or probationary stages, almost excluded from the powers of this Bill. This amendment was submitted because under subsection (4) of this section:

The Minister may, by order, made with the consent of the Minister for Health, amend subsection (2) of section 3 of this Act so as to extend the application of the subsection to other employments connected with medicine or health.

On section 3 (2) I commented on what I thought was too much scope being given to exclusions under the Bill. Rather than the Minister having this power we should limit the powers of that subsection. This is not a reflection on the Minister, because it would refer to the Minister of the day, and judging from the budget we have just heard, this Minister will not be too long here. That is the reason for my amendment. The Minister will recall my expression of dissatisfaction with that subsection. It specifically excludes a group of very important people in our society. We will probably have a further discussion on that subsection on Report Stage. I would like to see any change of order by the Minister being a limiting of powers in that subsection rather an extension of them.

The purpose of this section is to make it possible for the Bill to cover the possibility of a future introduction of new para-medical employments, to which the provisions of the Act do not apply, because of the probationary aspect which we discussed earlier.

With which I did not agree.

I accept that. A draft order of the character mentioned, and the powers sought here, would be subject to approval by resolution of both Houses of the Oireachtas under section 16 (8):

Where an order is proposed to be made under this section, a draft thereof shall be laid before both Houses of the Oireachtas and the order shall not be made until a resolution approving of the draft has been passed by each such House.

Each time we invoke this section the House will have to be consulted and will have to give its approval. I take it there is nothing personal about what the Deputy has said about the powers of the Minister. The Oireachtas will have a role in limiting the powers of the Minister in the use of the powers conferred by this section. Will the Deputy review his position in view of the fact that the House will have to consider it?

I was surprised to see this subsection. Subsection (3) says that:

The Minister may by order amend section 2 (2), 3 or 4 of this Act so as to vary—

(a) the application of this Act in relation to dismissals where the employment was under a contract of employment for a fixed term or a specified purpose,

I am concerned about powers being given to the Minister to extend the exclusions under this Act. I find it difficult to reconcile subsection (4) with subsection (3). Perhaps if the Minister would consider the use of the word "vary" in subsection (4), I could fall in line with him. In other words, I am not suggesting necessarily that there be an extension rather than a limit.

Our problem here is a practical one. All the indications are that there will be new para-medical jobs. Radiography is a relatively new occupation and there will be other new occupations as medical techniques evolve. The likelihood is that such jobs would be subject to a probationary period before the terms of this Bill would apply. I am told that the use of the word "vary" here would not give me the power sought. I do not think there is any difference of opinion between us on the necessity to bring as many people as possible within the provisions of the Bill with the least possible delay.

It is clear that there will be a necessity for the terms of the Bill to apply to these new categories of employee and that the power sought will be necessary to ensure the extension of the Bill's provisions to these categories. I emphasise that both Houses of the Oireachtas will be able to adjudicate on our actions in this area because it will be necessary to go before each House for sanction for the necessary powers.

I have expressed strongly my point of view on this matter so I do not consider it necessary to divide the House on it. If the Bill could be criticised from the point of view of employees, one could refer to the nursing profession, for instance, or to the whole range of professions connected with medicine and health. The Minister should consider this aspect carefully. I do not consider an extension to be necessary. I appreciate the problem involved regarding guaranteeing employment indefinitely to people in the medical and health professions after they have completed their training but it would be unfair to exclude them entirely from the conditions of the Bill.

If the section goes through in this form the result will be that as new employments are created in the medical and health areas, the Minister has power to extend the exclusion under the subsection. However, in view of our technological development and having regard to our finds of gas and, possibly of oil, there is every likelihood of new skills being created, skills which could be regarded differently from the apprenticeships that we know now. There should be a greater relationship between the apprenticeship situation and the probationary or training period for those in the medical and health fields. Perhaps the Minister would look at this between now and Report Stage and consider it in conjunction with the profession to which it relates. There is a wide discrepancy between this field and the apprenticeship situation which, in effect, can be regarded as medicine of another kind in that it relates to the correcting and repairing of things rather than persons. I am not keen on the idea of giving complete powers of extension to any Minister. The Minister has mentioned the necessity for coming before both Houses for an extension but once the powers are provided for, the Houses will be likely to accord readily with their request.

I shall have a look at this matter between now and Report stage.

Amendment, by leave, withdrawn.
Question proposed: "That section 16 stand part of the Bill."

A matter which does not come specifically within the provisions of the Bill, but on which the Minister might comment, relates to the position of casual workers. I have in mind subsection (1). Let us take, for example, casual workers engaged in the food processing industry and who would not have one year's continuous employment although they would have recurring employment year after year. They would be employed during the beet campaigns and by food processing plants such as Erin Foods. I am not in a position to offer any ready solution as to how this matter might be dealt with but I would be concerned for the beet campaign worker, for instance, who had given four, six or perhaps up to ten seasons work within that industry, admittedly only for up to about five months at a time. I thought that such a worker might be entitled to some consideration in this Bill. I wonder whether the Minister gave any consideration to the question of providing that after a number of seasons of such work, an employee would be guaranteed continuing seasonal work in subsequent campaigns. No doubt the Leas-Cheann Comhairle will be aware personally of many small farmers in the north Cork region of his constituency who depend on that type of seasonal work.

We considered such workers but as the Deputy has indicated he appreciates the difficulty in including categories of this nature. He makes the point that after a person has been in so-called casual employment for a number of years he is in a category different from casual workers. It would be difficult to arrive at a formula to cover this sort of situation. We have been unable to reach any satisfactory formula in this regard and that is why we included the provision relating to a year's continuous service. I do not know whether any additional wisdom will come to light between now and Report Stage so I am not in a position to give any undertaking on this except to promise to have a look at it again.

I should be grateful to the Minister for giving the matter further consideration. I appreciate the difficulties. There should be some way whereby, after a specified number of seasons working, they would have some sort of preference or priority when that seasonal work recurs.

Subsection (5) provides:

The Minister may by order amend any provision of this Act so as to comply with any international obligations in relation to dismissals that the State has decided to assume.

This is again a rather wide power particularly now that we are in the EEC and the Minister is at the head of the ILO. Should we not have it written into that subsection, or is it considered unnecessary, that there should be consultation with the joint committee or with the ILO if such a course is considered necessary?

The point is that this, in fact, comes before the Oireachtas Committee on EEC Secondary Legislation. This is subject to ratification by the House. It would be untidy to start naming possible international organisations and so forth. It is sufficient to say those international bodies to which this House has decided our laws are related and we will come back to the House for any power sought.

Amendment, by leave, withdrawn.
Section 16 agreed to.
SECTION 17.
Question proposed: "That section 17 stand part of the Bill."

I see no objection to this section but I would suggest that some of the phraseology is a little archaic. Take, for instance, "as soon as may be after it is made". I would expect the regulations to be placed before the House immediately after they are made.

This is done everywhere. That is the problem.

Question put and agreed to.
SECTION 18.
Question proposed: "That section 18 stand part of the Bill."

This section deals with the Employment Appeals Tribunal. As I pointed out earlier, there is a danger of overloading and I hope this will not be the outcome here. Human nature being what it is, most dismissals will get some sort of airing or some effort will be made to get them aired. I mentioned last night the frightening increase in Britain in the total cost and in personnel. In fact, 90 per cent of the cases going before the tribunals were cases of unfair dismissal and some of them were very very trivial indeed. The Minister will need to keep a close watch on the situation so that the legislation will be effective and the machinery will operate satisfactorily. This is one of the reasons why I am not satisfied about the six-month period or my suggested amendment of three months. The sooner unfair dismissal cases are dealt with the better it will be for industrial relations. I do not want to see a backlog of cases building up under this section to the point at which the situation becomes somewhat like cases going before the courts with delays and adjournments. If that is the evolution industrial relations will suffer particularly if there is reinstatement at the end of the day. The sooner these claims are dealt with the better it will be for employer and employee.

There is also the problem of the small employer who may get notice of an unfair dismissal claim against him. He will not be able to fill the vacancy in his work force until the claim has been finalised and I would not be in favour of any job going unfilled for any period of time. That would be very undesirable. The progress where redundancy claims are involved is pretty slow at the moment. It is important that the work of the tribunal should not be overloaded.

I would hope the majority of the cases would be settled at rights commissioner level. It is necessary to rename the redundancy tribunal as the Employment Appeals Tribunal because it will have more varied functions under the different Acts and under this Bill when it becomes law. The Redundancy Appeals Tribunal had a large number of unfair dismissal issues so there should be a lightening of the work of the tribunal to that extent. I agree we do not want these tribunals to be overloaded and I hope that the work of the rights commissioner will ensure that this is the evolution.

Question put and agreed to.
Sections 19 and 20 agreed to.
SECTION 21.

I move amendment No. 23:

In page 14, subsection (1), line 1, to delete "Anti-Discrimination" and substitute "Conditions of Employment".

This is very much a personal viewpoint. I know the Minister will not accept the amendment though I would dearly wish he would. I have never liked the term "anti-discrimination". I do think it is the correct term. It immediately gives the idea that there was discrimination and it is now going to be eliminated. There may have been discrimination by a very small number of employers. The vast majority of employers are decent, scrupulous people, hard working and sincere, who would not be in favour of a dismissal of any sort and would take any steps they could to avoid a dismissal. It would be much nicer if the Title were, as I have suggested, Conditions of Employment (Unfair Dismissals) Act, 1976. That would be a truer and a fairer description of it. In his earlier years in dealing with such legislation, the Minister probably leaned over backwards to prove to somebody that, during his period as Minister, he intended to eliminate such discriminations as may have existed.

This Bill will never be called anything but the Unfair Dismissals Act because that is what it is. From my point of view the title I suggest would be acceptable to everybody. Small employers are afraid of this Bill because they have never dismissed anybody, never mind dismissed anybody unfairly. I ask the Minister to consider my amendment very seriously as being a contribution to good industrial relations. I urge him to accept it. I am sure he agrees that it will always be called the Unfair Dismissals Act, but it relates to conditions of employment. My suggested title is fairer and would offend nobody, and it might eliminate some of the fears small employers have in relation to this legislation. I strongly urge the Minister to amend the Title.

For some time I have been giving some thought to the genetic titles of these pieces of legislation. They refer to fair terminations of employment and fair hiring conditions. I agree the Bill will be known as the Unfair Dismissals Act. If the Deputy leaves it with me, I will consider it between now and Report Stage. I am thinking about changing the Title. I am concerned as to whether the title Conditions of Employment (Unfair Dismissals) Act would confuse it with other legislation. What the Deputy has suggested echoes some of my own thoughts on the matter.

I thank the Minister. I have been thinking about this for some time and I will be making suggestions about other legislation. I am not tying him to my title. I am satisfied with the assurance he has given me. I look forward to finding a more appropriate title for this very important Bill.

Amendment, by leave, withdrawn.
Section 21 agreed to.
Question proposed: "That the Title be the Title to the Bill."

I have no objection to this other than what I said on the amendment. We will have a further interesting debate on Report Stage of this Bill which I regard as very important. While we still have some slight disagreements on some aspects of the Bill it has been improved by our discussions on Committee Stage.

Question put and agreed to.
Bill reported with amendments.
Report Stage ordered for Wednesday, 9th February, 1977.
The Dáil adjourned at 7 p.m. until 10.30 a.m. on Thursday, 27th January, 1977.
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