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Dáil Éireann debate -
Wednesday, 2 Mar 1977

Vol. 297 No. 5

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

Debate resumed on amendment No. 4b:
In page 5, line 45, to delete "1 month" and substitute "6 months".
—(Deputy G. Fitzgerald.)

I fully appreciate the way the Government are embarrassed in regard to facing the requested debate or even the answering of questions.

We are on another matter now.

We will return to that but the other one is a matter of serious national importance. Anybody who decides otherwise is not acting in the best interests of the country or the people. I repeat again for the benefit of the House the reasons why I believe the Minister should accept this amendment in the case of the apprentice. Many of us have had the opportunity of dealing with apprentices, helping them and encouraging them during their period of training and qualification. We know that it has been a practice in many small businesses, industries and commercial firms over the years that when an apprentice qualifies and if he or she has not immediate employment, assuming that person has not a job in the company where the apprenticeship was served, in many cases the owner or the manager of that concern will say to that apprentice "You work on for a few months until you get alternative employment".

Section 4 specifically states that this Act shall not apply in relation to the dismissal of a person who is or was employed under a statutory apprenticeship if the dismissal takes place within six months after the commencement of the apprenticeship or within one month after the completion of the apprenticeship. What advantage is it to any apprentice or to any company to have this one month in the Bill? If the Minister can point out to me what the advantages are in having such a qualification in a section I will try to understand the case he makes. Until he does I submit there is no way in which that period should be set at one month. That company or firm may decide that that young person can have three, four or five months until he succeeds in getting alternative employment. This will be to the benefit of the person concerned and also to the benefit of the State because he will not have to claim State help. The morale of the person concerned will not be damaged and he will not have to experience an unnecessary period of unemployment.

This morning I referred to the fact that in larger companies the apprentice is often just a number and unless he is absorbed into the permanent work force when he is qualified the termination of his apprenticeship automatically spells the end of his employment. This may not happen with the smaller employer and we should remember that the majority of employers are in that category. In undertakings employing less than 200 persons there is a much closer human contact and the apprentice has the opportunity of becoming known to the staff and management. I have seen on occasions where young apprentices were given the opportunity of continuing in employment until they got alternative jobs elsewhere. Why should we introduce legislation that will alter that position, that will not benefit the person concerned, the employer or the State from the social and material point of view?

I find it difficult to understand why the Minister has insisted on retaining the period of one month when the obvious thing to do is extend it. I appreciate the good intentions on both sides of this House to have a Bill that is as beneficial as possible but I think we should take advantage of the experience gained in other countries in this kind of legislation. I have always said that we should not follow rigidly on legislation introduced in Britain; we should not accept that they have all the knowledge but neither should we disregard the experience gained by them. There have been unfair decisions made in certain cases simply because there were weaknesses in the legislation. I submit that in this case there is a glaring weakness that should be remedied.

The Minister may argue that if we allow for six months an apprentice will not come under the terms of this Bill for the first six months after his training period if he continues in the same employment. That may be so but there should not be any fear about this. If an apprentice has qualified over a number of years and if he is found satisfactory to the extent that he is taken into permanent employment, both he and the employer will be quite happy. The chances are that there will not be an unfair dismissal in such a case but, on the other hand, another person may suffer because of the provisions in this Bill. An employer will not be able to retain an apprentice at his discretion, perhaps to keep him in employment while he is looking for alternative work elsewhere, unless he is satisfied he has permanent employment for him. He will not be able to dismiss the apprentice after that month and the fear that he may be caught by the provisions of this Bill will prevent him from keeping the apprentice in employment.

This amendment is important. It will improve the Bill considerably and I would ask the Minister to accept it. It will benefit the apprentice, the employer and the State. It will prevent the young person from having to apply for social welfare or other State assistance.

I accept that the Minister and many other Deputies have a deep interest in this matter. I would ask the Minister to listen to the plea of Deputy Fitzgerald on this matter. There are sufficient irritants in industrial and human relations on the factory floor without adding to them. A well-intentioned employer may wish to continue the employment of an apprentice but may not be able to offer him long-term employment. I will instance the case where a contract has to be finished but where the employer is not quite sure how long he can afford to retain the apprentice. In these days of economic anxiety the employer may not want to risk keeping on the apprentice. This may solve his problems but it does not solve the problems of the young person concerned.

Deputy Fitzgerald mentioned the fact that in comparison with British firms most of our businesses are small. Therefore, there is more of a community feeling in a factory here than in the more industrialised countries. There is an interest in apprentices and we do not want to see any more young people on the unemployment list. The Minister should accept this amendment in the interest of apprentices, employers and industrial relations. It could be said that the cost would be greater if the amendment was accepted. I understand Deputy Fitzgerald's anxiety to have the amendment accepted. The acceptance of the amendment would be appreciated by the trade unions because an apprentice is bound to be a member of some trade union. The awful thing about the factory floor is that an apprentice may become a mere number on a time clock card. This small amendment would add dignity to apprenticeships. By accepting the amendment the Minister would add to the value of the Bill and show that the Government are concerned with the future of apprentices.

I am anxious to ensure that employers train as many apprentices as possible. The one month exclusion period is in line with policy in other forms of protective legislation whereby we give employers an incentive to take on more apprentices than their essential interests would require. After my discussions with them on this aspect, the employers and unions represented on the council of the training authority, AnCO, may raise this question within the council. If agreement is reached at that level on any change in the exclusion period set down in the section, I will take that into consideration in reviewing the future progress of the Bill. At present the Deputy can take it that the reason for the one-month exclusion period is to assist in ensuring that we have a larger number of apprentices in training than the individual interests of the concerns might require. It is in the best interests of apprentices that the section should stand. This amendment is not necessarily in the interests of apprentices because it extends the period when a claim under the Bill would not be allowed.

What is the Minister saying?

The acceptance of the amendment would not necessarily be in the interests of apprentices because it extends the period when a claim would not be allowed. One version of the amendment is that it would favour employers in extending the exclusion period when unfair dismissals claims cannot be made. The main problem is that the amendment would act as a disincentive to employers to train more apprentices. If both employers and unions decide that there should be revision of the exclusion periods I will act on their advice.

I cannot follow the Minister's argument. The Minister is convinced that my argument is correct. I do not agree with the Minister that extending the period of exclusion would be of advantage to employers. As the Bill stands, the employer will keep the apprentice for only one month. In the cases to which I am referring it is probably a knowledge of the apprentice and of his family that influences the employer to retain him while he is seeking alternative employment. On the other hand, the argument that it is unfair in regard to the intake of apprentices is not correct. Young apprentices will still be employed. What does happen is that a qualified person continues in employment for a period at the pleasure of the employer. Apprentices are the only people who will gain by acceptance of the amendment. The Minister made another point in regard to the council of AnCO deciding that the exclusion period should be changed. It would be wrong to concede our rights as legislators. We should use our experience and knowledge to recommend what we believe to be the best type of legislation. By all means consult these people, particularly on certain aspects of the Bill, but we must remember that the apprentice who will suffer is the apprentice whose employer is not represented by organisations. He is the employer who values his employees. Why should we introduce exclusions that would be harmful to him?

I would urge the Minister to reconsider this amendment. We have had a very reasonable debate on this Bill. This is important and unique legislation which has aroused considerable interest among all sectors of industrial society. The proof of this is that it is difficult to get copies of the debate on some of the dates on which this Bill took place in the House. I would prefer if we decided here rather than in the Seanad or anywhere else what improvements should be made to this Bill.

I submit there is no valid argument that can be made against my amendment. From long experience of this type of situation I can say it can only be of advantage to one group of people and that is the qualified apprentices who are not being retained in their employment. It will not in any way hinder or harm the intake of apprentices on the other side, as the Minister said. The outgoing apprentices would not be doing the type of work that would normally be done by the one or more apprentices coming into the firm. It is fine for the Minister to say he would change the provision if necessary. I believe the change is necessary even before the Bill becomes law. No employer will gain from this. The gain will be made by the apprentice and also by the Exchequer.

I referred earlier to the Minister's point that the amendment would be extending the period of exclusion, but I want to come back to it. It is true that the apprentices kept on could be excluded for a period of six months rather than one. However under section 3 of the Bill, with which we dealt this morning, a nurse has no protection whatever under this Bill during her four years of training and, having completed her four years' training, she then has to do a further year before she comes under the terms of the Bill.

How can the Minister reconcile that situation with his argument? The only apprentice about whom the Minister is concerned is the one who will be retained in employment after qualifying. I agree that there is a weakness in regard to that person's situation, but I believe there is no reason for concern in that regard. If an apprentice has served a term of four or five years' apprenticeship satisfactorily in a firm and if he is being retained, it is obvious that his employer is satisfied with him and that he is satisfied with his employer. Even if he continues for six months outside the terms of this Bill there is no problem there, because it is most unlikely that, if a company agree that the person is suitable to be retained in employment, he would lose the benefit of this Bill during that period.

Even if I did concede there was a problem there, the problem on the other side is much more serious. Take the case of a town garage that takes on one, two or three apprentices. The employer concerned is most unlikely to retain two or three per year in permanent employment. Nevertheless, in how many of those town garages in our constituencies do we see apprentices being kept on for three, four or five months because these young men and their families are known to the local proprietor and because he wants to give them an opportunity of working while they are seeking employment elsewhere.

Once this Bill becomes law that practice will stop. When the month expires the employment of the apprentice who is not being kept on will be terminated. Not alone would this amendment help apprentices but it would also help the revenue in that for four or five months these apprentices would be employed and making a contribution by way of stamp and tax rather than drawing social welfare benefit while they are seeking a job. Even at this stage I would ask the Minister, in the interest of apprentices, in the interest of the people generally and in the interest of the Bill, to accept the amendment. The benefits to be derived far outweigh any drawbacks on the other side.

The problem is that the provision here is similar to that in the Redundancy Payments Act. We have no proposals or representations that that should be altered. It would introduce unnecessary confusion if there were to be different periods here from those in the Redundancy Payments Act. I believe that in the one-month period the employer has sufficient time to make up his mind whether to retain the person or not and that therefore there is no need to lengthen the exemption period.

Question put: "That the words and figure proposed to be deleted stand."
The Dáil divided: Tá, 65; Níl, 59.

  • Barry, Peter.
  • Barry, Richard.
  • Begley, Michael.
  • Belton, Luke.
  • Belton, Paddy.
  • Bermingham, Joseph.
  • Bruton, John.
  • Burke, Joan T.
  • Burke, Liam.
  • Clinton, Mark A.
  • Cluskey, Frank.
  • Collins, Edward.
  • Conlan, John F.
  • Coogan, Fintan.
  • Cooney, Patrick M.
  • Corish, Brendan.
  • Cosgrave, Liam.
  • Costello, Declan.
  • Coughlan, Stephen.
  • Creed, Donal.
  • Crotty, Kieran.
  • Cruise-O'Brien, Conor.
  • Desmond, Barry.
  • Desmond, Eileen.
  • Dockrell, Henry P.
  • Dockrell, Maurice.
  • Donegan, Patrick S.
  • Dunne, Thomas.
  • Enright, Thomas.
  • Esmonde, John G.
  • Finn, Martin.
  • Fitzpatrick, Tom (Cavan).
  • Flanagan, Oliver J.
  • Gilhawley, Eugene.
  • Governey, Desmond.
  • Griffin, Brendan.
  • Halligan, Brendan.
  • Harte, Patrick D.
  • Hegarty, Patrick.
  • Hogan O'Higgins, Brigid.
  • Jones, Denis F.
  • Keating, Justin.
  • Kelly, John.
  • Kenny, Enda.
  • Kyne, Thomas A.
  • L'Estrange, Gerald.
  • Lynch, Gerard.
  • McDonald, Charles B.
  • McLaughlin, Joseph.
  • McMahon, Larry.
  • Malone, Patrick.
  • Murphy, Michael P.
  • O'Brien, Fergus.
  • O'Connell, John.
  • O'Donnell, Tom.
  • O'Leary, Michael.
  • Pattison, Seamus.
  • Reynolds, Patrick J.
  • Ryan, John J.
  • Spring, Dan.
  • Staunton, Myles.
  • Taylor, Frank.
  • Timmins, Godfrey.
  • Toal, Brendan.
  • White, James.

Níl

  • Allen, Lorcan.
  • Andrews, David.
  • Barrett, Sylvester.
  • Brady, Philip A.
  • Brennan, Joseph.
  • Breslin, Cormac.
  • Briscoe, Ben.
  • Brosnan, Seán.
  • Browne, Seán.
  • Brugha, Ruairí.
  • Burke, Raphael P.
  • Calleary, Seán.
  • Carter, Frank.
  • Colley, George.
  • Connolly, Gerard.
  • Crinion, Brendan.
  • Cronin, Jerry.
  • Crowley, Flor.
  • Daly, Brendan.
  • Davern, Noel.
  • de Valera, Vivion.
  • Dowling, Joe.
  • Farrell, Joseph.
  • Faulkner, Pádraig.
  • Fitzgerald, Gene.
  • Fitzpatrick, Tom (Dublin Central).
  • French, Seán.
  • Gallagher, Denis.
  • Geoghegan-Quinn, Máire.
  • Gibbons, James.
  • Gogan, Richard P.
  • Haughey, Charles.
  • Healy, Augustine A.
  • Herbert, Michael.
  • Hussey, Thomas.
  • Kenneally, William.
  • Kitt, Michael P.
  • Lalor, Patrick J.
  • Leonard, James.
  • Lynch, Celia.
  • Lynch, Jack.
  • MacSharry, Ray.
  • Meaney, Tom.
  • Molloy, Robert.
  • Moore, Seán.
  • Murphy, Ciarán.
  • Nolan, Thomas.
  • Noonan, Michael.
  • O'Connor, Timothy.
  • O'Kennedy, Michael.
  • O'Leary, John.
  • O'Malley, Desmond.
  • Power, Patrick.
  • Smith, Patrick.
  • Timmons, Eugene.
  • Tunney, Jim.
  • Walsh, Seán.
  • Wilson, John P.
  • Wyse, Pearse.
Tellers: Tá, Deputies Kelly and B. Desmond; Nil, Deputies Lalor and Browne.
Question declared carried.
Amendment declared lost.

Amendments Nos. 5 to 9, inclusive, to be discussed together by agreement.

I move amendment No. 5:

In page 5, line 49, before "re-engagement" to insert "re-instatement or".

These amendments relate to the question of reinstatement and re-engagement. This matter was discussed on Committee Stage. There is not much to be discussed.

I welcome these amendments. They are in line with the amendments suggested to the Minister on the Committee Stage of the Bill. I thank the Minister for accepting the submissions made from this side of the House at that time. I read the debate on the Equal Pay Bill, 1974, and I noted that the Minister refused to accept the word "re-instatement" in that Bill. That surprised me because I thought in that Bill that was the word that should have been used. Reinstatement gives a far different interpretation. It means a person returning to the job with the same status under the same conditions. "Re-engagement" seems to imply a new contract. In relation to the amendment No. 9 we must claim credit for this side of the House. I had an amendment on the Committee Stage which may not have met all the requirements that were obviously needed to improve the section. The section is now clarified more satisfactorily. I support amendments Nos. 5, 6, 7, 8 and 9.

Amendment agreed to.

I move amendment No. 6:

In page 6, line 8, before "re-engagement" to insert "reinstatement or".

Amendment agreed to.

I move amendment No. 7:

In page 6, lines 13 and 16, before "re-engagement" in each place to insert "re-instatement or".

Amendment agreed to.

I move amendment No. 8:

In page 6, line 20, before "re-engagement" to insert "reinstatement or".

Amendment agreed to.

I move amendment No. 9:

In page 6, to delete lines 23 to 25 and to substitute "associated employer) to re-instate that employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of dismissal, or to re-engage him, either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him, on such terms and conditions as are reasonable having regard to all the circumstances.".

Amendment agreed to.

I move amendment No. 10:

In page 6, line 30, before "employees" to insert "one or more".

On Committee Stage we discussed the question of lock-outs with regard to an individual and with regard to groups. This amendment achieves the consensus viewpoint expressed on Committee Stage that we wished to cover both the position of the individual or more than one individual.

I support the amendment claiming credit on the basis of having brought to the Minister's attention the fact that this was necessary on the Committee Stage.

The Deputy is a diabetic for credit.

Amendment agreed to.

I move amendment No. 11:

In page 6, line 40, before "grounds" to insert "substantial".

I undertook on Committee Stage to consider points made by Deputies that the phrase "grounds justifying the dismissal" should be qualified as in subsection (6) of this section. This amendment gives effect to that.

I can appreciate that the Minister is concerned about my claiming all these credits.

I am not concerned, Deputy. That was a joke.

I know. That was an amendment that we had submitted on the Committee Stage and I welcome the change. The use of the word "substantially" was the one suggested. I am delighted to be able to accept a strengthening of the Bill by the insertion of the word "substantial". There would be no objection at all to the amendment being accepted.

Amendment agreed to.

I move amendment No. 12:

In page 6, to delete lines 53 to 56, and to substitute:

"(b) the religious or political opinions of the employee,".

Again this is a matter discussed on Committee Stage. The simplification of the provision in the amendment makes its intention more clear. I ask Deputies to accept the amendment.

I agree entirely with this amendment, and on discussion on Committee Stage I felt it was unnecessary to go beyond that. I was not happy about the wording used in the original draft of the Bill and I do not believe there should have been any qualifications to it. The bald statement that now appears as a result of the amendment is a far more satisfactory one.

Amendment agreed to.
Bill recommitted in respect of amendment No. 13.

I move amendment No. 13:

In page 6, to delete lines 57 and 58, and in page 7, to delete lines I to 6.

The provisions of paragraph (c) of section 6 (2) relate to an area of great legal complexity and difficulty regarding the individual's right of association and disassociation and I have given consideration to the provisions contained in paragraph (c). While originally it might be considered desirable to include the elements of paragraph (c) the area is not one on which I am entirely free of doubt. Having reviewed this provision I have decided that it would be desirable to delete it, in other words that we would relate to rights of association.

I have no objection to this amendment. It is amazing how we seem to be agreeing on so many issues in this Bill.

I think the Deputy will be joining us.

I am not 100 per cent satisfied. The individual rights of a person are catered for and deservedly so. For that reason I have no objection to the amendment. I was anxious to know specifically from the Minister why he decided to change. I and my party had an open mind on the position and we considered possible amendments. I still am not 100 per cent sure. However, possibly the right of the individual is underlying and because of that it is possibly necessary to have the amendment. I am not going to oppose the amendment. It can be agreed. I understand there is a doubt in the Minister's mind. If he has any reservations as the Bill goes through the Seanad we can have a further look at it from both sides of the House.

Amendment agreed to.
Amendment reported and agreed to.

I move amendment No. 13 (a):

In page 8, subsection (4) (a), line 5, after "or qualifications" to insert "required by the employer at the commencement of the employment".

We now come to a section on which we had quite a bit of debate on Committee Stage in regard to type of conduct and so on. This amendment refers to the qualifications. It is an effort to direct the Minister's attention to the possibility of tying qualifications to those that existed at the commencement of the employment. Right through this Bill we are concerned about encouraging good relations between employer and employee. The vast majority of our employers will never be involved in this legislation and it will rarely have to be used against them. There may be a few people who will try to get around any legislation that might be introduced by this or—in the not-too-distant future —by the next Minister from this side of the House. For that reason I ask the Minister if he has considered the necessity of tying down the competence or qualifications on the basis of assuming an employer does try to play around with the qualifications of the person from the time of initial recruitment to when the dismissal takes place —in other words, exploiting certain changes in the qualifications necessary to do a job. This is not beyond the bounds of possibility. If you take a company who are not doing so well or are short-staffed and not financially equipped to increase their staff, greater burdens may fall on a person, different responsibilities or different chores may be allotted to him from what he was originally employed to do. It should be spelled out clearly that there should be no interference with qualifications from the time of the original employment to the time of dismissal—for example, to say that a man who had been with a company ten or 15 years was not qualified to do a new job allotted to him maybe six or eight months before. That is the only reason for this amendment. I would like to hear the Minister's views on it.

We did, both now and previously, consider this question. The main problem is, as I have said on Committee Stage, that the addition of the suggested qualification recommended in this amendment to the concepts of capability, competence and qualification could give rise to a considerable degree of confusion about the meaning of the provision. Accepting that in this provision we cannot be excessively specific because we rely a great deal on the good sense of the tribunal, I would ask the Deputy to consider whether his case is assisted by the amendment suggested by him. It is hard to see how the amendment will give greater relevance to the section when you consider the existing reference in the paragraph to the capability, and so on, of the employee for performing work of the kind which he was employed by the employer to do. There is no great division between us here.

I will not make a big issue of this if the Minister is absolutely happy with it. I accept the point he made about the employee's capability for performing work which he was employed by the employer to do. There may be people who would like to stretch the interpretation of that. If the Minister is satisfied with the paragraph I am prepared to withdraw the amendment,

Amendment, by leave, withdrawn.

I move amendment No. 13b:

In page 8, subsection (4) (b), line 8, after "conduct of employee" to add "which results in damage to the business or is detrimental to the business of the employer or to the performance of the employee in the execution of his duties".

This paragraph refers to the conduct of the employee. I did not press the Minister hard on the previous amendment but I want to impress on him that in this paragraph the words "the conduct of the employee" appear to me to be very wide and vague. I appreciate that the phrase is qualified in many ways in this Bill. Subsection (4) provides:

Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following...

(b) the conduct of the employee...

I suggest that should be modified to read "the conduct of the employee which results in damage to the business or is detrimental to the business of the employer or to the performance of the employee in the execution of his duties." The phrase "the conduct of the employee" could refer to his conduct on a Sunday afternoon. He may be playing a game of football or a hurling match, or he may be attending a game, and he may have a few drinks and become involved in a brawl with no effect on his work the following day. We have indications of people participating in affairs outside their normal work being suspended indefinitely. Perhaps this refers to subversive activities at times. If people pay the penalty and are then not reinstated in their jobs that is unfair. For that reason the conduct should be related to conduct harmful to the employer or the employee in the execution of his duties. I appeal to the Minister to accept the amendment and relate the conduct directly to the employment.

The tribunal which will be adjudicating will be forming their opinion and judgment in the employment context. The unfair dismissal, if it is proved, will have taken place in the course of duties connected with the employment. The Deputy made the point that the phrase "the conduct of the employee" is too broad, but we must remember it is limited by the exercise of the powers given to the tribunal. We are talking in an industrial relations context and the conduct of the employee has a relatively narrow application in that context.

It is our business here to make amendments and to change legislation but a good deal of the legislation which comes before us has been scrutinised in consultation with employers and unions. Part of the difficulty in dealing with legislation of this character is that both sides may have conflicting viewpoints on what is advisable. In those circumstances one must make a judgment which is a compromise between two conflicting points of view. It is noteworthy that the union side and the employer side sought no further changes in this definition. Both sides were relatively satisfied with the words "the conduct of the employee".

In a legal sense it could be capable of many interpretations but not in the context of industrial relation and, with the safety valve of the tribunal, I do not think it is susceptible to wild interpretations. Neither of the social partners was unhappy with the provision as drafted. While I take the Deputy's point, I think it is covered substantially by the "the conduct of the employee" formula in the context of the tribunal operating and taking into account that all of this obviously relates to the employment nexus.

It seems a broad phrase and I would prefer to see it related specifically to employment. We in this House know what it means. The trade unions and the employers' organisations know what it means. For the purposes of the Bill I feel it should be qualified but, if the Minister says it is not necessary, I am prepared to accept that and ask him to keep an eye on it as it goes through the House and the Seanad.

Amendment, by leave, withdrawn.

I move amendment No. 13c:

In page 8, subsection (4), between lines 14 and 15, to insert the following new paragraph:—

"(e) the employee being absent from work without explanation for 12 consecutive weeks".

Has the Minister investigated this situation? When I first heard this referred to I regarded it as a very unusual occurrence, but it was drawn to my attention that, in two instances, I think, when some coal mines were closing down, people who were farming in the hills or the mountains were still on the companies' books. They had not communicated with the companies, or turned up for work for a long period, or sent in a certificate of illness, or had any other contact with the company, but turned up for redundancy payments. I raised this matter on Committee Stage to prevent a similar situation arising.

It has been said that you could have an employer who would exploit an employee and you could also have the reverse situation. I should not like to see any employee exploit an employer in that situation. I merely want to ask the Minister if he did investigate the points I made, and if he felt that because of the experience at that time it was necessary to close any possible loophole that may have been opened in a similar way under this Bill?

It would not be possible, obviously, as regards the matter I spoke about on the previous amendment, to get agreement with the two sides of industry on a formula that both would accept there. The Deputy will agree that there would be a definite conflict of opinion on what should be there under that section. I cannot honestly say to the Deputy that there is unanimity between the two sides that one would consult in legislation of this kind; it is one of those cases where one must make a judgment. I believe that in all circumstances the conduct of an employee could be taken to cover this eventuality and I stress "could" because it will be the tribunal that will be examining the matter and we must allow them some flexibility. By putting this section in here we would be ruling off an area of discretion to the tribunal.

There may be particular circumstances that would excuse what otherwise appears to be an unpardonable breach. We may not be able to conceive them now, but I think the conduct of an employee could be taken into account in such circumstances where there were no adequate reasons forthcoming and action could be taken by the tribunal under that heading, where the blame or the culpability lay on the employee. It is an area in which I think we should avoid being over specific. There are many headings or criteria of unfair dismissals, many more than are set down here but they would all suffer the disadvantage of being over specific and I suggest that the Deputy's case is best met by the rather more general headings set down here when, after all, depending on each case, the tribunal can exercise discretion within the headings set out.

Amendment, by leave, withdrawn.

Amendments Nos. 14 and 15 may be discussed together by agreement.

I move amendment No. 14:

In page 8, between lines 40 and 41, to insert the following paragraph:

"(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or".

This matter has been previously discussed in the House and it has also been raised by other representative interests. My intention in these amendments is to provide for reinstatement as a form of redress which may be awarded by the adjudicating body under the Bill in addition to re-engagement or financial compensation. As we noted on Committee Stage there is a slight difference between the terms; one is more legally exact than the other. I made the point in Committee that the term we used here in drafting before this amendment, was one that would cover both eventualities. This was the advice available to me. But if there was any doubt there is nothing to be lost by including the two.

This is basically the reason for introducing this amendment, that there is the option at this stage?

I believe it was there but the point was made that if it was there it should be set down and that is what we have done here.

I welcome the amendment and I think it improves the Bill.

Amendment agreed to.

I move amendment No. 15:

In page 8, lines 44 to 47 to delete "(including a term that the re-engagement shall be deemed to have commenced on the day of the dismissal or on any subsequent day)".

Amendment agreed to.

Amendment No. 16 was discussed with No. 3.

I move amendment No. 16:

In page 13, line 1, to delete "2 years" and to substitute "1 year".

Amendment agreed to.

I move amendment No. 17:

In page 13, line 1, to delete "2 39, to insert the following:

19. —Where an employee is reinstated or re-engaged by an employer in pursuance of a determination or order under this Act in relation to the dismissal of the employee by the employer, any payments made under the Redundancy Payments Acts, 1967 and 1973, in relation to the dismissal shall be repaid by the person to whom they were made to the person by whom they were made and may be recovered by the latter from the former as a simple contract debt in any court of competent jurisdiction and any moneys due and owing to any person under those Acts in relation to the dismissal shall cease to be due or owing.".

We had an extensive discussion on this point on Committee Stage. We had some consequential amendments already discussed which we have accepted. This amendment also arises from the strengthening of the situation in the Bill in regard to the re-instatement and re-engagement and the clarification of both already referred to. Section 16 provides that unfair selection for redundancy will constitute unfair dismissal under the Bill. It is conceivable that an employee who has already been paid redundancy money could later be awarded reinstatement or re-engagement on an unfair dismissal claim based on unfair selection for redundancy. I, and both the unions and employers that I consulted on this matter, agree that it is reasonable in these circumstances that the redundancy payments should be refunded and that is the point behind the amendment.

This is a desirable amendment to prevent any abuse that may arise under the Bill. It is very understandable and I entirely agree with it and support it.

Amendment agreed to.

I move amendment No. 18:

In page 13, to delete lines 39 to 44 and substitute the following:

"20. —The First Schedule to the Minimum Notice and Terms of Employment Act, 1973, is hereby amended by the substitution of the following paragraphs for paragraphs 5 and 7:

`5. An employee who claims and receives redundancy payment in respect of lay-off or short time shall be deemed to have voluntarily left his employment.

7. Where the whole or part of a trade, business or undertaking was or is transferred to another person either before or after the passing of this Act, the service of an employee in the trade, business or undertaking, or the part thereof, so transferred shall be reckoned as part of the service of the employee with the transferee and the transfer shall not operate to break the continuity of the service of the employee.'."

Section 19 goes out and is replaced by this?

Yes, precisely. Again, this was a matter discussed on Committee Stage, the position of the individual in merger and take-over situations, and in order to make it absolutely clear that in all such circumstances continuity of employment is preserved I felt we should take the opportunity of this amendment to further amend the continuity rules in addition to the changes already incorporated in section 19. The effect of this amendment is to ensure that continuity is preserved even if only part of a business is transferred from one employer to another. This is a change that reflects a previous change of a similar sort in dealing with like situations in the redundancy legislation some years ago to cater for this situation where there may not be a total take-over but in which one particular section moves between one employment and another. This amendment covers that position.

I certainly welcome the closing of any possible gaps in this situation which I think we discussed earlier today. I fully support the amendment.

Amendment agreed to.

I move amendment No. 19:

In page 14, lines 1 and 2, to delete "Anti-Discrimination (Unfair Dismissals) Act" and to substitute "Unfair Dismissals Act".

We discussed this matter on Committee Stage. Deputy Fitzgerald and others referred to the actual title and I indicated that I had been thinking along similar lines—if it is not heresy to say that Deputy Fitzgerald and I occasionally think along similar lines. What was involved here was the title of the Bill. We have had a series of Bills in which the general description of "anti-discrimination" was used. In practice this Bill has become known as the Unfair Dismissals Bill and there does not seem to be any point in logic why we should continue the general title when the specific purpose of the legislation is to deal with unfair dismissals. I therefore suggest that this be called the Unfair Dismissals Bill.

Even if the Minister did think of it, the amendment came about because of our discussion on Committee Stage. I have never liked titles of Bills to include the words "anti-discrimination" or anti-anything. I believe there is something negative about this.

We are thinking of altering the titles of other Bills along the same lines.

I support that idea. People may become confused because of all these anti-discrimination Bills. As the Minister said, this Bill has become known as the Unfair Dismissals Bill. I fully support and agree with the amendment.

Amendment agreed to.
Bill received for final consideration.
Agreed to take Fifth Stage today.
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