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Dáil Éireann debate -
Thursday, 31 Mar 1977

Vol. 298 No. 6

Unfair Dismissals Bill, 1976: From the Seanad.

The Dáil went into Committee to consider amendments from the Seanad.

I move that the Committee agree with the Seanad in amendment No. 1:

Section 5: In page 6, subsection (3), line 10, after "paragraphs", "(a)" inserted.

This is a consequential amendment following an amendment to section 7 (1) which provided for reinstatement as a form of redress under the Bill additional to re-engagement and compensation. It generally found favour with Deputies and Senators on all sides.

We are agreeable to that. Does it improve the situation? I have reservations all the time about paragraph (a) of section 5. I expressed this fairly vehemently on Committee Stage.

The amendment refers to subsection (3).

Subsection (3) includes paragraph (a) which is the one to which I specifically refer. It states:

one or more employees of the same employer who look part in the strike or other industrial action were not dismissed for so taking part.

I believe there is a major loophole in that paragraph.

Paragraph (a) is in section 7.

I see that. We have the redress for unfair dismissal and reinstatement is one of them.

Question put and agreed to.

I move that the Committee agree with the Seanad in amendment No. 2:

Section 6: In page 8, after line 28, the following inserted:

"(7) Where it is shown that a dismissal of a person referred to in paragraph (a) or (b) of section 2 (1) or section 3 or 4 of this Act results wholly or mainly from one or more of the matters referred to in subsection (2) (a) of this section, then subsections (1) and (6) of this section and the said sections 2 (1), 3 and 4 shall not apply in relation to the dismissal."

The effect of this amendment is to give access to the Bill to employees who feel they have been dismissed due to trade union membership or activities but who are otherwise excluded from the Bill because they have less than one year's service or are beyond retiring age. That means that some people are excluded under other sections. The Deputies will recall the probation people who are excluded and also people who have less than one year's service. It is felt—the representations I had from the unions were very strong on this point—that if even within these excluded categories somebody was dismissed based on his membership of a trade union that the protection of the Bill should be at his disposal. Where such protection is open to the employee in those cases there is no presumption of unfairness on the part of the employer. In other words, the employer and employee are on an equal basis in such cases. If elsewhere in the Bill, where there is a presumption that the employer after he has dismissed someone is a person who has got to discharge the onus of proof he does not have to do so in this case. If in this case the employee says: "I was a member of a trade union and I am dismissed" it is not presumed that the employer must discharge an onus of proof. He has just got to put his arguments to the employee. This gained the enthusiastic endorsement of the leader of the Deputy's party in the Seanad.

The Minister should not take it for granted that what the Leader of that party in the Seanad may say or do would necessarily influence what the party spokesman in this House may say or do. I have no objection basically to the amendment. One aspect of it which I welcome is the encouragement of a more informal attitude between worker and employer. Right through the Bill the procedures are too rigid. Of the whole package of social legislation this is the one which concerns me most having regard to its possible deterring effect on employment, the fear of the employer, the small employer especially, to re-employ. On the amendment, I believe the Minister is entering an area of discrimination. Nobody is covered without 12 months' service.

There is a safeguard in the section if a dismissal was based solely on membership of a trade union.

That is the point I am coming to about discrimination. Here a special case is being made on a section in which there is reference to exclusions.

We are dropping the exclusion clause in cases of an offence where a pensioner is dismissed for membership of a trade union. In other parts of the Bill where the employer dismisses somebody he has to discharge the onus of proof in the case of a dismissal. He does not have to do so in this case.

Yes, but there is discrimination here. Take the case of an employee who is employed for only ten months and who is dismissed because of religious affiliations——

I take the Deputy's point.

—— or because of one or other of the reasons mentioned in the Bill. They should be entitled to the same concession. The Bill should apply to everybody on the same basis. Exceptions are being made here. Take also the case of a nurse or almost any employee of a health board who could have two, three or even four years' service during the training period. Such employees have no recourse to it after, perhaps, only two months. While I am not objecting to the amendment, I believe it is opening a vast area. The Minister is making a special case, and I know why he is doing it. I am afraid it is political. He has been under strong trade union pressure and probably they have told him he has not honoured his commitment to them. The Minister realises that we are probably sitting on the last day of this Dáil, that we will not be back, and he has to placate these people and honour his commitment to them. As I say, if the Minister makes a concession in this case, he should do so in every other case specified here; otherwise it is singling out people who are only one of a number of categories.

Dismissal for involvement in a trade union is one of the commonest reasons for unfair dismissal. This is one of the main reasons why we felt an exception should be made in this case. We will accept that there was strong representation to this end, but anybody who looks over the history of unfair dismissals will realise that membership of a trade union has been one of the commonest reasons for it.

I would like to tell the Minister about a case in this city in which a man who led an unofficial strike was dismissed. After a while the dispute was settled, and the trade union notified the employer that they would not work with that man again. The employer sent for the man and said: "I am sorry, the trade union will not work with you. You will have to go" and he was dismissed. Would such a person be covered by this Bill? It could be said that he was dismissed for trade union activities or for antitrade union activities, if you like.

He would be covered.

The Minister must bring in all the categories that are excluded; otherwise they are being treated unfairly. We are talking about unfair dismissals but this Bill is becoming an unfair one for certain sections of workers.

The Deputy will accept that in the majority of cases employees must be members of a trade union, and it is generally official policy under any Government to encourage people to join a trade union. If the case arises in which a person is sacked because of his membership of a trade union, I think we should afford him protection under legislation of this kind, because it is almost a condition of employment in many occupations to be a member of a trade union.

I do not object to that, but the Minister is extending the cover of the Bill. I am sure the Minister will agree that if a person was dismissed after three months for his religious or political opinions, it would be unfair, but that is not covered by this Bill. There are other forms of redress to a trade union, for instance, under common law, but, strictly speaking, a person who is only six or nine months in employment has no redress or cover under the Bill if he or she is dismissed on religious or political grounds, nor, indeed, if civil or criminal proceedings are taken or if the race or colour is wrong.

I can see the Deputy's point.

This is why I think the Minister has reacted to election pressure. This is understandable.

But not forgiveable.

Not forgiveable, because he should not exclude other categories. He must realise there are other categories affected by unfair dismissals. Singling out one category is a major change from the terms of the Bill. Section 2 specifies the period for which a person must be in employment. I have been very annoyed about certain exclusions. For example, in section 3 we improved the situation for probationary teachers after pressure from here and after pressure from the organisation itself we improved it still further but because there was no groundswell of pressure for all these groups of people working in the health services they are outside the scope of this Bill and may be for four years with no redress.

This is because of the probation problem. I refer to the training period.

Yes, but it is more than training, it is employment. It does not take in nurses. If a nurse does maternity or psychiatry at the end of general nursing it could amount to a four-year course in the one hospital. She could be dismissed from that hospital in her fourth year with no redress under this Bill. Yet somebody who is two weeks in a job has redress if he is dismissed because of his trade union affiliation, membership or activity. I agree that he should not be dismissed and that this would constitute unfair dismissal, but the Minister is putting that qualification in a special category. What should effectively be done is to do away with the 12-month qualification altogether, but that would not be desirable. The Minister is saying that after one or two weeks' employment a person is not liable to dismissal because of his trade union activities. He is not liable to dismissal at any time because of trade union activities, but when we stipulate in legislation that a person must be in continuous employment for a year we should not now start segregating. The Minister should reconsider his decision. He may have been hasty in this.

I have not been hasty. I accept that the Deputy has a point but it would be conceded readily that it comes up frequently as a phenomenon in relation to trade unions and that is why it is in here.

It is unfair. How far does one go? For one type of dismissal a person is included from the first day he enters employment. We have outlined in section 6 when a dismissal can be an unfair one. We have already said under section 2 that the employee must be in employment for 12 months. We have excluded in section 3 certain categories of people who cannot come in at all during their period of training or probation. We have made special arrangements for apprentices in section 4. Now we are taking one of the offences out of section 6 and amending it on the basis that that should get special treatment. I do not object to the amendment, and I take the Minister's point that trade union activity is often the reason for an unfair dismissal or for difficulty between employer and employee, although fortunately not as commonly as it used to be. There is general acceptance of the fact that trade union membership for workers, is desirable from the point of view of both sides, but the Minister is doing something that he has not given much thought to. He should look at the situation and if he does want to concede the pressure he has obviously got then let him be fair about it and let it cover all aspects of unfair dismissals but let there not be just one provision for one type of offence. I am not opposing the amendment but it should be accompanied by further amendments.

Question put and agreed.

I move that the Committee agree with the Seanad in amendment No. 3:

Section 8: In page 10, after line 2, the following subsection inserted:—

"(7) A rights commissioner shall notify the Tribunal of any recommendation he makes under this section."

This amendment is intended to ensure that rights commissioners send a copy of their recommendations to the tribunal to ensure that adjudication procedures operate effciently. It is generally common sense.

There is no reason why we should oppose that. I am concerned about all this added Labour Court work. I hope we will have other opportunities of discussing it either in this Dáil or the next. This is merely giving to the rights commissioner under this Bill the duty of notifing the tribunal of any recommendation he makes under this section in this respect. I belive that the rights commissioner service of our Labour Court has given wonderful service to industry.

Hear, hear.

I feel that not enough appreciation is shown to it, particularly by the present Minister, I am sorry to say. All our industrial relations institutions, our rights commissioners, conciliation officers and Labour Court should be kept absolutely independent and far removed from interference of any political sort. While I am here as party spokesman I will be pressing this Minister to ensure that this is the case. I am not happy about the performance over the last few years. The rights commissioner will be given a duty to report to this tribunal, a duty that he or she, as the case may be, will carry out honourably in full knowledge of the facts submitted from both sides. It must be accepted that these people have been and are performing and will continue to perform without interference a very valuable role in industry.

Question put and agreed to.

I move that the Committee agree with the Seanad in amendment No. 4:

In page 10, after line 27, the following subsection inserted:—

"() A dispute in relation to a dismissal that is an unfair dismissal for the purposes of this Act shall not be referred to a rights commissioner under section 13 (2) of the Industrial Relations Act, 1969."

This is intended to remove any ambiguity which may exist about the functions of rights commissioners in relation to dismissal disputes and to ensure that when they act in these disputes they will act within the terms of this Bill.

Is that in the terms of this Bill rather than in any other legislation?

Yes, in relation to unfair dismissals they should not be referred to a rights commissioner under section 13 (2) of the Industrial Relations Act, 1969.

Question put and agreed to.

I move that the Committee agree with the Seanad in amendment No. 5:

Section 15: In page 12, after line 40, the following subsection inserted:—

"(4) A person who accepts redress awarded under section 9 or 10 of the Anti-Discrimination (Pay) Act, 1974, in respect of any dismissal shall not be entitled to accept redress awarded under section 7 of this Act in respect of that dismissal and a person who accepts redress awarded under the said section 7 in respect of any dismissal shall not be entitled to accept redress awarded under the said section 9 or 10 in respect of that dismissal."

This is in regard to redress awarded governing dismissal under certain circumstances under the Anti-Discrimination (Pay) Act, 1974, and it is conceivable that an employee might decide to make claims under both that Act and this Bill. I do not want to interfere with the employee's choice, but this amendment is intended to avoid duplication in respect of the same dismissal and that a reinstated employee will not also have received compensation. He must take one path or the other.

That amendment speaks for itself. I have often accused the Minister of regarding all employers as being big bad people. Thank God we do not have to say that about employees. The vast majority of them are very honourable reputable people who would not dream of availing of such an opportunity. There may be a loophole that could be exploited by a small minority, and I agree that it must be closed to prevent a duplication of claim under both Acts. I did not realise that this possibility was there. In view of the points made in section 6, I presumed the only one there could refer to (f), to the pregnancy of the employee. Surely that is the only area where there could be a duplication? This Bill would seem to me to cover all the other areas of unfair dismissals. I have no notion of opposing this amendment. If it closes loopholes, we welcome and support it. It is the last amendment to this Bill, which will obviously now go to Areas an Uachtaráin for signature and will become law.

I hope this Bill will get the type of flexible introduction and encouragement from the Department that we spoke about earlier in the protection of employment. There are aspects of this Bill that may still be controversial, but we should regard it as a guideline rather than a rigid piece of legislation to be enforced. In relation to improving industrial relations the only way we can make progress is by encouragement and co-operation rather than by wielding the big stick.

I support Deputy Fitzgerald's plea that this should be a source of guidance so that it may play a part in reducing the amount of tension, disruption and general chaos on the industrial scene. With all its imperfections this Bill gives protection to a great many people. I hope that people covered by the Bill will realise that there is a contribution in this Bill to a more ordered scene in the field of industrial relations. I trust that the Minister will use this Bill in the wisest way possible as a contribution to happier industrial relations.

I thank the Deputies on all sides of the House for their many constructive comments during the passage of this and other Bills connected with industrial relations. I hope all our efforts will result in improving relationship between employers and employees throughout industry. I also thank the officers of my Department, Michael Corcoran and Tom Walsh, who have been working on this legislation continuously.

Question put and agreed to.
Amendments reported and agreed to.
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