Before the Seanad enters on discussion of the Bill, I should like to draw its attention to the fact that an erratum slip has been issued in relation to an error in page 4 of the print of the Bill as passed by Dáil Éireann.
Unfair Dismissals Bill, 1976: Second Stage.
Question proposed: "That the Bill be now read a Second Time."
The basic proposal of this Bill is that the dismissal of an employee will be regarded as unfair unless the employer can show grounds which justify the dismissal. Its objective is to limit the area of arbitrary decision by employers in relation to dismissals of employees.
The employer at present has the absolute legal right to hire and fire at his discretion. The Bill seeks to foster better relations between management and employees in relation to discipline and dismissals. It is accepted by successful employers that industrial efficiency must be based on management practices which respect employees' rights. Arguments in the past about the rights and wrongs of decisions in relation to dismissals have led to costly strikes.
I am convinced that the contents of the Bill present no problem for the majority of managements. The exercise of care and justice in making decisions which result in dismissals of employees should not impose any significant burdens on firms which develop enlightened personnel policies.
For the employee's part, the Bill seeks to correct a serious omission in our statute law in respect of the individual's right to fair treatment in circumstances where the employer decides on dismissal. As the law stands, apart from the employee's rights to the requisite notice under the Minimum Notice and Terms of Employment Act, 1973, the employer could implement dismissal in circumstances where the culpability of the individual worker need not be soundly based. The employee's only legal recourse up to now against the unjust dismissal lay in a common law action for wrongful dismissal in the civil courts which could entail considerable costs and delays. This omission in our worker protection legislation has resulted in arguments about the rights and wrongs of dismissal decisions which have frequently led to costly strikes. Frequently an employee who has felt aggrieved at his dismissal has resorted to the support of his fellow employees.
Disputes have occurred in firms where large numbers of workers were drawn into disputes which primarily concerned an individual who felt that an injustice had occurred. Despite the best efforts of Rights Commissioners and Labour Court, large numbers of workers were drawn into disputes stemming from unfair treatment of an individual in relation to his dismissal.
The economy has suffered through these strikes. In 1975, 116,000 man-days were lost as a result of disputes relating to engagement, dismissal or redundancies and much the same figure is shown in the provisional figures of man-days lost through strikes in 1976. I am convinced that the numbers of such strikes will be lessened by remitting disputes arising from individual dismissals to the calm deliberation of the adjudicating bodies mentioned in the Bill.
The general objective behind worker protection legislation is to raise gradually the standards of justice and fair play accorded to employees in line with the economic and social developments of our society. The area of arbitrary behaviour in industrial relations, from whatever side it emanates, must be limited. In its place we must institute codes of behaviour jointly obeyed by both sides in industry. This requirement is being met already in many firms which have fully developed dismissal procedures. The Bill gives special recognition to agreed disciplinary and dismissal procedures within firms. It should provide a stimulus to their establishment in firms where such procedures do not exist at present.
I believe that, in addition to procedures at the level of the firm, there should also be a national code of agreed dismissal and agreed disciplinary procedures relating to dismissals. I have already announced my intention to initiate discussions with representatives of trade unions and employers as soon as the Bill is passed with a view to agreeing such a national code. This national code should suggest alternatives to dismissal and incorporate a graduated scale of sanctions, such as reprimands and suspension, commensurate with the perceived shortcomings. The code should also give guidance on appropriate appeals machinery within the firm. The main purpose of this code would be as a guideline towards the achievement of agreement on both sides on necessary steps in grievance procedure.
The provisions of this legislation will apply to employees in all occupational categories—manual, white collar and technical employees at all levels from the shop floor to the managing director. In all about three-quarters of a million employees will be covered.
The Bill lists in detail criteria for unfair dismissals and sets down the forms of redress and the methods of adjudication on claims. The basic proposal of the Bill is that the dismissal of an employee will be regarded as unfair unless the employer can show grounds which justify the dismissal. In order to clarify this basic prescription and to make it easier for employees, employers and the adjudicating bodies to fulfil the spirit of the legislation, I have listed the criteria in relation to dismissal.
It will be unfair to dismiss an employee because of trade union membership or trade union activities either outside his hours of work or at times during work hours agreed by the employer. Dismissal will also be unfair if it arises from the religious or political opinions of the employee; civil proceedings against the employer which involve the employee as a party or witness; criminal proceedings against the employer which involve the employee as a complainant or witness; and the race or colour of the employee. In addition, where pregnancy is the sole reason for dismissal it will be unfair, subject to certain conditions, not the pregnancy but dismissal on grounds of pregnancy.
I mentioned that it will be for the employer to demonstrate that the dismissal was justified and he must show that it resulted from one or more of the following or some other substantial grounds justifying the dismissal: the employee's capability, competence or qualifications for the work he was employed to do; the employee's conduct, redundancy or if his employment in his particular job contravened statutory requirements. An unfairly dismissed employee would be entitled to reinstatement in his old job or to re-engagement in his former job or in a suitable alternative position. The third alternative form of redress would be an award of compensation within a maximum of two year's pay.
The redress available in the Bill should act as a deterrent by encouraging employers to think seriously before dismissing a worker—in fact to ensure that dismissal is a last resort which must be shown to be fully justified. It is in this context that we can be reasonably sure that this legislation will help in reducing the number of instant dismissals, bearing in mind that at present industrial action is often the only practicable resort available to workers in disputed dismissal cases. I want to make it clear that this legislation will not give protection to employees who are clearly incompetent in their work or whose conduct at work is seriously detrimental to the performance of their job.
The adjudication process in the Bill envisages three possible stages, involving hearings before a rights commissioner, an Employment Appeals Tribunal and, finally, the Circuit Court. This provides an effective system under which disputes about dismissals would be investigated with a minimum of formality and expense.
There are limited exceptions in section 2 in respect of a few categories of workers. These relate mainly to employees at retiring age, close relatives, persons being trained by AnCO and to persons in public sector employment, many of whom have the benefit of dismissal procedures under other legislation.
State employees known generally as "industrial civil servants" are however covered by the Bill. I am taking power to bring excluded groups within the scope of the legislation, if this appears to be desirable at a future time. Section 2 also sets a qualifying period of one year's service with the employer concerned before the Act will apply. An exception to this qualifying service requirement is that a woman who is dismissed on grounds of pregnancy can appeal even if she has less than 12 months' service. Incidentally, a provision in section 1 ensures that the rights of a deceased employee in a dismissal claim are carried forward to his personal representative. I considered that it was desirable to clarify in the Bill the position about the termination of fixed-term contracts. Broadly speaking, I have provided in subsection (2) of section 2 that a dismissal which represents the expiry of a fixed-time contract cannot be disputed under the terms of the legislation. In subsection (3) of the same section, I have proposed provisions to make clear the position of employees working abroad.
The provisions of section 3 recognise the special relationship which exists when an employee is on probation or training and the accepted concept that he has to prove his worth over a trial period. In specifying that the Act will not apply to such a dismissal, I have provided the safeguards that the contract of employment must be in writing and the duration of probation or training must be one year or less and be specified in the contract. Having regard to the role of professional training and examination bodies in relation to the rigorous training and tests which must apply for qualification as nurses or for para-medical employment, provision is also made whereby the Act will not apply to a dismissal during the initial training period only.
Section 4 continues a concept enshrined in other legislation whereby employers who take on more employees than they require for training as apprentices will not face the possibility of unfair dismissal claims if the worker is dismissed within six months after the apprenticeship begins or within one months of the completion of the apprenticeship. In making this provision my objective is to avoid undermining the practice of some large organisations which recruit and train more apprentices than they would need for their own requirements. These firms are performing a useful function for the benefit of the entire community.
Section 5 deals with dismissals by way of lock-out or for taking part in a strike or other industrial action. I have provided that dismissal by way of lock-out will not be unfair if the employee is offered reinstatement or re-engagement or resumption of work. In the case of strikes or other industrial action, I felt that some protection against victimisation was necessary for employees. In the return-to-work situation there must be equal treatment for all participants. I have provided that, if an individual is picked out for dismissal or if he is not offered his job back along with his colleagues, he can claim unfair dismissal.
Under section 6 I have set out the criteria for unfair dismissals. As I mentioned, it will be unfair to dismiss an employee because of his trade union activities, his religious or political opinions, civil or criminal proceedings against the employer which involve the employee, the race or colour of the employee and pregnancy.
The right not to be dismissed on grounds of pregnancy is qualified to the extent that dismissal of a pregnant employee is unfair unless she was unable by reason of pregnancy to do her work or her being at work contravened some other legal requirement and the employer could not offer her another suitable vacancy or she refused an offer of suitable alternative employment.
I have also provided in section 6 that unfair selection for redundancy shall be regarded as grounds for unfair dismissal. I consider that this provision is very necessary to guard against victimisation of individual workers for other motives in a redundancy situation. In this connection section 19 provides that redundancy payments must be refunded if an employee is awarded reinstatement or re-engage. ment on foot of an unfair dismissals claim based on unfair selection for redundancy. Under section 6 it is provided that it will be also for the employer to demonstrate that the dismissal was justified and he must show that it resulted either from one or more of the following matters, to which I referred earlier, or from some other substantial grounds justifying the dismissal: (a) the employee's capability, competence or qualifications for the work he was employed to do; (b) his conduct; (c) redundancy; or (d) if his employment in his particular job contravened another legal requirement.
I have provided in section 7 that if a dismissal is deemed unfair the employee may be granted reinstatement in his old job or re-engagement either in the old job or in an alternative position on suitable terms and conditions. The third alternative is an award of compensation, subject to a maximum of 104 weeks' pay. In determining the level of compensation account must be taken of the extent to which the employer or employee were responsible and of other guidelines, including the extent to which the employer or employee abided by negotiated dismissal arrangements or complied with the code of practice relating to dismissal procedures approved by me to which I referred earlier. Further recognition of negotiated dismissal procedures is given in section 14, to which I will refer later. I am taking the specific power in section 7 to approve a general code of practice relating to dismissal procedures which could be a guideline to all employers and employees.
In sections 8 to 10, inclusive, I set out the proposals for adjudication on claims of unfair dismissal. While these may seem a little complicated, I intend to produce literature when the Bill becomes law—this is a matter which was raised in the other House and presumably Senators will raise the same question in relation to clarification of provisions of the Bill—which will leave employees and employers in no doubt about the procedures they should follow. I will ensure that the information literature will receive the widest possible circulation. The adjudication process envisages three possible stages, involving a rights commissioner, the Redundancy Appeals Tribunal, which is being renamed the Employment Appeals Tribunal under section 18, and finally the Circuit Court. As Senators will know, the rights commissioners' service operates on a voluntary basis under the Industrial Relations Act, 1969, in areas of dispute which are not connected with pay or general employment conditions. We have now also increased the number of commissioners; we have three now whereas we had one only until quite recently—we have extended it by two more. The former chairman of the Labour Court is the latest recruit to the rights commission service.
The Redundancy Appeals Tribunal deals at present with minimum notice and redundancy dismissal disputes and my decision to assign unfair dismissal cases to the tribunal achieves a unity of subject matter relating to dismissals for adjudication purposes. I feel that the tribunal is the appropriate forum if dismissal disputes are to be removed from the area of industrial disputes. The third stage of recourse is to the civil courts. This is necessary in order to integrate the proposals with the existing legal system.
Under section 8 there is provision that a claim for redress for unfair dismissal must be initiated by an employee within six months of dismissal by giving a written notice to a rights commissioner, or to the tribunal if the employee objects to a hearing by a rights commissioner. Either party may object to a claim being heard by a rights commissioner. In cases which come before him, however, the rights commissioner will make a recommendation in relation to a claim. If that recommendation is not carried out, the employee may bring his claim to the tribunal, which will make a determination in relation to the claim. I should mention here that there is separate provision in section 9 enabling either an employee or an employer to appeal to the tribunal against the terms of a recommendation of a rights commissioner within six weeks of the date of the recommendation. The tribunal will make determinations on all claims which come before it.
Section 10 introduces the third stage in the adjudication process, whereby, if an employer fails within six weeks to carry out a determination of the tribunal, the Minister may institute Circuit Court proceedings on behalf of the employee for the remedies provided in the Act. In that case, and that case only, the Minister will pay any costs imposed on him by the court. This section also provides that either an employee or an employer can on their own initiative appeal to the Circuit Court against the terms of a determination of the tribunal but in these cases the Minister would not be liable to pay costs.
On the question of costs I should like to stress, that, other than any travel or subsistence costs which may arise, no costs necessarily arise for either the employer or employee in the first two stages of the adjudication process. It is open to either the employer or the employee, at their own expense, to be legally or otherwise represented before the tribunal but it is not necessary, and in fact only a limited number of cases now coming before the tribunal involve legal representation. As I have said earlier, the only case under this Bill in which the State can bear an employee's legal expenses will be when an employer fails to carry out a determination of the tribunal. The Minister then takes the case to the civil courts on the employee's behalf and the courts might award costs against the Minister.
In section 14 I give special recognition to the existence of negotiated dismissal agreements and require employers to give written details of such dismissal procedures to employees within 28 days of taking up employment. Similarly any alteration in these procedures must be notified in writing within a 28-day period. These requirements will of course be satisfied if the procedures are incorporated, for instance, in a staff manual which is handed to each worker immediately on taking up employment. I am also providing in this section that where an employee is dismissed the employer must, if he is requested to do so, give written particulars of the grounds for the dismissal to the employee within a 14-day period. There is a qualification to this in that any other substantial grounds which would have justified the dismissal may be taken into account by the adjudiction bodies when considering claims under this legislation.
At present the only legal recourse available to a dismissed employee is a common law action for wrongful dismissal. That right of action is preserved under section 15. In making available the simple and effective system of adjudication and redress under the Bill and in committing taxpayers' money to their operation, I consider that the employee can reasonably be required to choose between a common law action or a claim under this legislation. I have provided for such choice in this section.
I commend the Bill to the House and look forward to its passage.
On the previous debate in regard to the Worker Participation Bill we, on this side, commended the Minister and supported the Bill at all Stages on the basis that it was a practical measure to test the grounds, as it were, with regard to seven State-sponsored companies and initiate gradually a very desirable policy of industrial democracy and involvement on the part of workers in the running of enterprises. I am afraid we cannot give all Stages to this Bill. While supporting the broad principle of improving the law as it stands, there are too many matters for discussion on Committee Stage. We can assure the Minister that while we can allow Second Stage this evening we cannot give any subsequent Stages because of what I have mentioned. There are far too many fundamental matters involved, particularly in regard to section 6, which is the basic section of the Bill involving various details relating to unfair dismissal.
I appreciate that up to now the only legal recourse available to a dismissed employee lay in a common law action for wrongful dismissal. That ignores the basic reality in our industrial life —a reality to which the Minister referred on Second Stage of the previous Bill—the reality of existence, and rightful existence, of the trade union movement and trade unions. Once trade union power exists—the extent of trade union power which is a reality of modern, civilised society— then, in 99 per cent of these cases, trade union power is able to look after the situation. It is another day's work in regard to the previous Bill—which I think very socially desirable—where there should be a greater degree of responsibility in education laid on the shoulders of workers, managers and enterprise to participate in the running of the enterprise. I am totally in favour of that. But I wonder is the efficient working of the enterprise going to be helped by the elaborate sort of system proposed now mainly in section 6, and the following sections, designed to ensure that the gap which exists in the law in regard to unfair dismissal must necessarily be filled by this measure, in particular these sections which altogether ignore the basic fact of legitimate trade union power. Is it not a fact of life that a man cannot be unfairly dismissed in our society at present if he is a member of a trade union and has that power behind him? We know that.
I question the erection of a whole edifice of unfair dismissal procedures side by side with the existing common law structure, a whole set of procedures involving the rights commissioner, appeal to the Employment Appeals Tribunal and to the Circuit Court— all of this in a country that does not have the substantial employers, impersonal employers against whom this would be warranted. Indeed it is one of the anomalies of the Bill that the impersonal employers who may, and do, commit real wrong in regard to their employees tend to be excluded under section 2, where there is a whole set of exclusions that excluded, for instance, officers of local authority, of a Health Board, of a Vocational Education Committee, prison officers——
I might point out to the Senator that I did announce an erratum slip. Prison officers are no longer included in the list of those excluded.
Forgive me, that is in the correction. If one goes through section 2 one sees a whole range of people excluded: members of the Garda Síochána, a person in An Comhairle Oiliúna, local authority employees, health board and vocational education employees. I have not great practical knowledge of this because up to now I have had about two legal actions on the part of people unfairly dismissed. Outside that area of safe employment where buried within an impersonal bureaucracy real wrong can be done, there is the whole area of small enterprise employment people, who are taken on by small and medium-sized employers, now being subjected to the sort of situation envisaged under section 6 of having to prove that they were right in regard to the dismissal of an employee. One justification for this type of measure lies in regard to large impersonal bureaucratic organisations where wrong can be done, many of which are excluded under section 2. The people who should not be brought into this net, who should not be subjected to the onus suggested in section 6 are the small and medium-sized employers on whom this country is at present dependent for its recovery. The country will not recover economically if small and medium-sized employers are to be burdened with a certain onus that is involved in this Bill, particularly in section 6 and the following sections.
What it comes down to is that if the small employer in the building industry, in the wholesale industry or in the retail industry, or any type of industry or sphere of commerce that you can envisage, wants to switch his labour force and take on somebody whom he might prefer and let go somebody whom he might not particularly like and whom he feels is not fitted to the particular needs of his industry, that person is being prejudiced under section 6. I am all for having a procedure of tribunal established to investigate the merits or demerits of dismissal. I do not mind that fundamentally. What I do mind is the onus of proof that is put over on the employer under section 6, and this is the kernel of this matter.
There is in my view an undue onus of proof shifted over on the employer. I do not mind if it is a big battalion employer who has plenty of personnel relations departments and public relations departments to look after this. The big employers in the private field, like Guinness or any other of that category you wish to mention, have plenty of offices and departments to look after this sort of thing. They can process this legislation and are sure that it will be processed through a rights commissioner and on to the Employment Appeals Tribunal and on to the Circuit Court. Similarly, the bureaucracy has plenty of people of this kind.
I am not talking about them at all. I am talking about the people on whom the Minister is depending, through sections in his Department by way of premium grants, to stimulate manufacturing activity. I am talking about the thousands of small textile and footwear factories. I am talking about the hundreds of meat processing and food processing industries. I am talking about the hundreds and indeed thousands of small building contractors. All of these people whom the Minister under another section of his Department is seeking to stimulate into the economic activity by way of grants if they employ extra people, who are being smothered in paper by way of taxation and other areas, on whom the Government and the economy are dependent, are being prejudiced.
If there is a row on a building site on a frosty morning and a fellow is let go because he is not doing his thing—I do not want to itemise the million and one ways in which this can happen: all of us here are human beings and we know the way human nature works and how it ticks—that employer is going to be asked now under section 6 to come along and to spell out the substantial grounds justifying the dismissal—not just grounds, but the substantial grounds justifying the dismissal of a particular man on a morning on a building site. The substantial grounds, when one goes into them in detail, mean that in effect the employee must be shown by the employer not to have been adequate to do the work for which he was employed. The employer must show that the employee was not capable of behaving in a proper way and that the conduct of the employee was the matter at fault. The main matters are the capability, competence or qualification of the employee, and the conduct of the employee.
Instead of having an open-ended type of investigation into this matter, what is being done in this Bill is that the onus is being put on the employer to show that there was culpability, lack of capability, misconduct on the part of the employee. In other words, the employer is in the dock from the word go, rather like a criminal being tried. The whole onus is put on him to prove that he was right in dismissing the employee, instead of the matter being on an open-ended basis where both employer and employee present their case, not in a confrontation issue where the onus of proof may be on one side or the other, but rather in a sensible investigation system before the rights commissioner, and subsequently before some form of appeals tribunal. It should not be, and it is totally wrong as it is now spelt out under section 6, that in regard to any unfair dismissal the onus is entirely on the employer.
What we are talking about is dismissal, and this dismissal under section 6 is presumed to be an unfair dismissal and the presumption of unfairness lies with the employer who has to go in and say before the rights commissioner and subsequently before the tribunal and, perhaps in the Circuit Court, that it was not unfair, this this employee was incapable, culpable and guilty of misconduct. The whole onus is thrown over on the employer in regard to any dismissal. This is the rather serious matter that resides in this particular section. The presumption is that dismissal automatically is unfair.
This, in my view, is very bad in a climate where we have adequate union power to handle any unfair case involving arbitrary action, discrimination and injustice by an employer. There are adequate trade union facilities to deal with that situation and it is being dealt with every day of the week in every factory in operation in the country, and rightly dealt with. That is what trade unions are there for. If they have to deal with it more effectively and if they want facilities to deal with it more effectively, I am for that. I am for any form of arbitration between trade union and employer being established. I am all for the rights commissioner idea where a rights commissioner goes in and he is there on the spot to deal with a situation of this kind between trade union and employer, without prejudice and without bias and without any onus on one side or the other to prove or disprove a case.
We are now bringing in here one side or another to prove or disprove a case. We are now bringing in here a legal constriction. Instead of the traditional common law, which is being retained, side by side with it we are bringing in a new legal conception of right and wrong and we are presuming here under section 6 that every dismissal is unfair, and because that presumption is there we are putting the onus over on the employer to rebut that presumption. Is it not a far more sensible thing, without bringing in the whole panoply of expensive legislation and potential litigation, that we have more rights commissioners, more people on the ground, to deal instantly for and on behalf of the rights commissioner with such disputes quickly and effectively as they arise, to go into it not on a legal basis, not on the sort of basis that is set out in this legislation, but on the basis of common sense, and ad hoc approach, which is the only way to deal with 99 per cent of these problems?
I do not think people realise the extent or the enormity of what is being done here. If this sort of legislation is pushed to its logical conclusion, the normal relations that exist between employer and employee will be damaged completely because it will give rise to a whole system of nark complaints and everybody here knows what I am talking about. It will encourage the begrudgers and the narkers and the complainers and the people in our society who should be discouraged and given every disincentive. I am all for having strong trade unions, strong rights commissioners and plenty of staff attached to strong rights commissioners to ensure that no wrong is done to employees. If you are to have a situation where small and medium size employers are faced with the requirements of this Bill, day in day out, in discharge of a particular action which they may consider necessary for the survival of their business, then you are in very serious trouble so far as future economic development is concerned. I say that advisedly because I took a more extreme standing than the Minister on the previous Bill in regard to worker participation in industry. I believe totally in worker participation, total involvement by workers at every level of both tiers, at the works council tier and at the board of directors tier—the more responsibility workers and managers have at middle level the better—but I suggest that this Bill is in reverse to the responsible measure that the Minister proposed here earlier in the day and which has been passed with our help. This Bill is an encouragement to something that we do not want to see in our society and which can be dealt with adequately within the existing structures of the trade union movement.
The pragmatic step should be taken of having a corps of rights commissioners available in each segment of industry to deal immediately in a fire brigade operation aspect with any trouble of this kind where it arises and to move and operate totally on an ad hoc basis without giving more rights to people. The whole trouble with the modern world is that too many people have rights and feel they should have more rights. If we add more rights, we will kindle more trouble.
I would have every confidence in a pragmatic system operated under the Labour Court, with strengthening of the staff of the existing rights commissioner system, which could be done on a practical and ad hoc basis without any need for this legislation which will put an enormous burden on small and medium size employers and, apart from that, will add an enormous amount of extra cost litigation, narkiness, trouble, aggravation, call it what you will, to the whole industrial scene. The only ultimate beneficiaries will be the profession to which I belong myself, the legal profession.
In welcoming this Bill I must point out initially that I cannot examine it from a legal viewpoint. I think it is a most desirable and necessary Bill. As a trade union official who has dealt with numerous dismissals and numerous stoppages due to dismissals—unfair dismissals, may I add?—after much hardship to people and so on, these things have been overcome. I would hope that this Bill will alleviate, if not eliminate, most of these difficulties. Senator Lenihan said the trade unions would be catering for 99 per cent of the people involved and that they have plenty of muscle to protect those people. I would not disagree with that—perhaps the percentage is too high but I hope that will be the right percentage.
However, there is a section in industry which is subject to unfair dismissal. Most big industries have procedures which normally work out reasonably well, but you have the smaller industries, even though there may be joint labour committees acting in them, who are not organised. For that reason this Bill is more than necessary. We have to realise that the welfare of the company is at stake but at the same time we have to ensure that no one would unfairly lose his job. That has not been my experience up to now. By and large I have found that many people who were unjustly dismissed had to go all the way to a dispute and a disruption and maybe a strike lasting five, six or seven weeks. With a bit of common sense, we could have outlawed the causes for that long ago. It is not called "sacking" now. It is called a "dismissal", but is means sacking, and it is the fault of both sides of industry that it still occurs. Admittedly, there will be people who will be entitled to be let go, but this Bill provides a safeguard for the employee, who is the weakest in this country.
The only thing I have to ask the Minister on the Bill itself is in regard to section 2, the one year service with the employer. I wonder, as there is normally six months' probation, why he has decided on another six months before the Act would apply to him. This is one thing I cannot understand because normally probationary periods are of six months.
By and large I welcome the Bill. It will help to protect those who are at the mercy of not alone small business but big business in the event of a takeover bid. We have had many of those. People have lost their jobs because somebody has taken over the industry but has not re-employed everybody. This Bill should eliminate dismissals such as that, and without security and proper protection I do not think we will get the industrial relations we need.
Like Senator Lenihan I have many misgivings about this Bill. I agree with the principle involved and, indeed, we would all like to ensure as much security for everybody as possible. We have to take it that we are living in a real world, a rather rough competitive world where it is not merely the slacking employee that sets the pace and goes to the wall but the whole firm. It seems rather unfortunate, yet it is a fact of life that in small industries, small businesses and so on they cannot carry the employee who is not pulling his weight. That is quite different from being able to make a watertight case in the Circuit Court and everywhere else about unfair dismissal. It is something that worries me.
I have as much compassion and sympathy as anyone, but it worries me when I get a circular as I and many Senators got from the Irish Hotels Federation in which they express worry about the procedures in the Bill and especially about the lack of consultation with the employer organisation. It seems crazy to me to approach something that so intimately involves the two sides with a measure that does not comman the respect and confidence of both sides. It is just as criminal to leave the employers out or not to take cognisance of their legitimate suggestion as it would be to put this through without full and adequate consultation and advice from the trade union movement, because the world outside the sheltered halls of the public service is a very different world. It is a harder and more competitive world, yet it is the production and the competitiveness of that world outside the sheltered halls that unfortunately provide our production. That is the pace-setter—it is on that we depend for our existence as a nation. We pay lip service to the fact that we are a mixture of public and private, but as far as I can see the Government and Minister give the private side very little encouragement and help in the task they have got.
I am very worried about this and I hope we can tease it out more on Committee Stage when we should have quite a bit of time to think over the problems raised. I would prefer, as Senator Lenihan has suggested, to see many more rights commissioners available because when you put it into a legalistic framework with the employer in the dock he has to have evidence on which to sack the employees concerned. That evidence very often will be given in confidence by his fellow employees against the person in question. They are not likely to put their names to that evidence. They are not likely to come forward and present that evidence before a rights commissioner and certainly not before a Circuit Court.
Though I am very much opposed to strike action where it can be avoided, it seems to me that in industry if his fellow employees have a certain knowledge that the man in question is not doing his job, that he is doing something they consider very wrong, and if he is dismissed based on that, not one of them would come forward in court and give evidence of the unsuitability of the person concerned. But when they are asked to back his retention by strike action then they express their opinions by the way they react. They will not go out on strike for a fellow employee whom they consider not to be pulling his weight in the industry. That to my mind is something that is rather crucial. Indeed I had experience of it at university level recently. There was something that I had got evidence on and then when I needed the evidence I found it was not forthcoming. I cannot understand the attitude, but I am sure that is the prevailing attitude in industry generally. This Bill makes it almost impossible to dismiss anyone.
I am very worried that the employers' side do not seem to have been consulted on this and have not been adequately heard. The idea of a six-months period is fantastic. If an employee feels he has been wrongfully dismissed, within a few hours of his dismissal—certainly within a week—he should have lodged his complaint, but waiting for six months seems indefensible. Under the Road Traffic Act if you are involved in an accident notice has to be served on the person involved that the Garda Commissioner may be contemplating prosecution. Therefore you have early warning to assemble your evidence. That is not so with the employer here. An employee out for mischief could decide he will not lodge his complaint until some hours before the six months have elapsed.
This seems to be a totally different question from worker participation and management decisions. This to my mind strikes at the very root of the operation of any efficiently run industry. The answer is, as Senator Lenihan has pointed out, an extension of the rights commissioner procedure. The total man-days lost in the past year is not an impressive condemnation of the present situation. It was 100,000 man-days which, calculated in money, is probably a loss of production of around £1 million. In the context of industrial output that is not an alarming figure, but it is one which could be very substantially reduced. If 10 per cent of it, £100,000, was used to employ another five to ten rights commissioners I am sure they would do an excellent job.
The length of time in which this right is accorded in this Bill—I take a different point of view from Senator Kerrigan on this—seems unfair because it is two years before a worker acquires rights under redundancy legislation whereas he is required to have only one year's service under this Bill. Why the discrepancy there? The redundant worker needs much more protection.
We must consider from a different standpoint what is in the legislation where the employer is regarded as being in the dock from the word go. We must ask ourselves if in 90 per cent of the cases which have occurred in the past the employers' actions were vindicated? Are there any reports on that? No employer or manager who was competent in any way would move in such a situation unless he had more than ample grounds.
I would not like to be a manager in industry today and carry all the headaches associated with it and try to keep the firm going in the difficult production, sales and other climates we have today. We have fewer managers than workers and the value of good ones cannot be estimated. The whole success of an enterprise depends on management skills. These skills are different in public employment as against private. There are protections in public employment for managers and employers which do not exist in the private sector.
I am worried about this measure and I should like an assurance that whatever we bring in, like the previous Bill, it will be a trial venture. The previous Bill was good and it was right that it should be on a trial basis. I hope the Minister can in some way ease our worries by detailing the consultations he has had. Can the Minister say if any of the management bodies have doubts about this and if so will he try and meet some of those before Committee Stage is passed? This is a highly critical Bill. We would not be doing our duty if we did not take time to analyse its implications and see if it will be to the detriment of our industrial production.
I welcome this Bill which, for the first time, ensures that there is adequate protection of employees in their employment. I have listened with interest to the way in which Senators Lenihan and Quinlan have been wringing their hands over the plight of employers in this regard. On the contrary it is incredible that it has taken until March, 1977, to achieve this protection of employees in their jobs. I would regard this as an essential provision in ensuring job security and maintaining a better balance in this area of industrial relations. It is appropriate that the burden of establishing that a dismissal was not unfair, unjust or wrongful is placed on employers. It is appropriate because employers take the step of dismissing, because they are in possession of the information, and they can establish a case that in the circumstances the dismissal was not unfair and that injustice was not done. That is the appropriate balance and I am glad to see it is maintained in the Bill.
There are a number of specific matters to which I should like to refer. But before doing so I should like to recall a debate on the question of unfair dismissal which arose in relation to the Anti-Discrimination (Pay) Bill, 1974. At that time attempts were made to provide that a person who was dismissed because she had pursued an equal pay claim should have a right of reinstatement. I recall the Minister stated at that time that there were constitutional difficulties. That is not the first time I have heard an obscure reference to constitutional difficulties. I do not see them. I see there is a right of association and a right not to associate. I see where some sort of case might be made that an employer should not be required to associate with an employee, but any balanced judgment on the balance of constitutional rights involved would have to come down in favour of the right to work, to be employed and not to be wrongfully dismissed in employment. I would be grateful if the Minister would elaborate on this question of a possible constitutional difficulty. I am glad, if there was one, that he has been able to resolve it and bring in this legislation.
I should like the Minister to clarify very precisely the position in relation to equal pay claims. I take it that this legislation now applies to any person who pursues a claim for equal pay so that if that person were to be dismissed he or she would be fully protected by this Bill and could bring a complaint to the rights commissioner and could be reinstated or re-engaged, depending on the circumstances? That is very important because there are a large number of women, particularly in the private sector, who are afraid to pursue their claim for equal pay because they are afraid they would be dismissed. It would be important if the Minister could ensure that the position was clarified and state, very categorically, that such women would be protected by this legislation, could not be dismissed on that ground and could be reinstated under this legislation even though they could not be reinstated at the time under the provisions of the Anti-Discrimination (Pay) Act, 1974. That is the first point on which I would welcome clarification.
The next point relates to section 6 (3) which refers to the question of dismissal under redundancies where, in fact, there was a wrongful dismissal in the circumstances. I should like to refer in particular to the question of the possibility of married women being declared redundant in priority to other workers. Firstly, I should like to quote from a study on Attitudes To Women At Work With Particular Reference To Attitudes Towards Married Women, carried out by Deborah King, under a scholarship provided by AnCO, concluded in September, 1976, and recently reported in the press. In that study there is reference to a particular question which was asked of workers in selected places of employment. The question was: "In the case of a redundancy do you think married women should be the first to go?" The answers to that question are very revealing because in all the categories of workers, married men, single men, married women and single women, there was a significantly high proportion of all of them who felt that married women should be declared redundant first. Taking the case of married men: 69.3 per cent thought married women should be declared redundant first; 28 per cent said "no" and 2.7 per cent "do not know". Of single men, 53.3 per cent said "yes", 41.9 per cent said "no" and 4.6 per cent "do not know". Of married women, 46.9 per cent said "yes", 50 per cent said "no" and 3.1 per cent "do not know". Of single women, 59.2 per cent said "yes", 23.1 per cent said "no" and 7.7 per cent "do not know". That report goes on:
Fewer married women as compared to other groups support the view that married women go first in a redundancy situation, perhaps because they themselves would be personally affected. Conversely, the high percentage of single women who state that married women should be made redundant first may reflect the fact that the single women frequently do the same jobs as married women and would be more secure in their positions if such a policy prevailed.
We also find that a high percentage of married men—69.3 per cent—believe that married women should be made redundant before workers in other sex/marital status groups.
Because of the attitudes of fellow workers revealed in that survey it would be important for the Minister to clarify the position with regard to any such attempt to declare that a category of workers, mainly married women, would be declared redundant first in similar circumstances. I assume that that would be an unfair or wrongful dismissal under this Bill but I would be grateful if the Minister would make that clear when replying?
I regret I was not present in the House at 2.30 for the Order of Business. I was chairing the Textile Advisory Committee of AnCO when in fact the contents of this survey were being considered by the members of of that committee. I understand that in this House a matter very dear to my heart, namely, the Family Planning Bill, was being discussed. However, I hope to have an opportunity in the very near future of making my views clear, and my concern that the Bill itself be processed as quickly as possible.
I should like the Minister to clarify the position regarding the pregnancy of an employee. In section 6, subsection (2) (f) it is stated that the pregnancy of an employee or matters connected therewith would not be of itself a justification for a dismissal unless:—
(i) the employee was unable, by reason of the pregnancy or matters connected therewith—(I) to do adequately the work for which she was employed,
Is that not too vague and potentially subjective a criterion? Who is determining whether it was adequate? Might there not be a situation where a person becoming pregnant would be deemed not to be able to do the work adequately? The burden would be on the employer in the circumstances but is that sufficiently tightly worded to prevent abuse in practice? I would ask the Minister to clarify the position in relation to the right to pregnancy leave, particularly for a person who wishes to negotiate pregnancy leave where the situation is not clear in the particular employment. Any attempt to dismiss a person who looked for pregnancy leave would, presumably, constitute an unfair dismissal under the Bill?
Unlike Senators Quinlan and Lenihan I do not regard this Bill as unduly legalistic. It maintains a very good balance. The situation as it prevailed prior to this Bill was the imbalanced and inadequate situation where a worker, wrongfully dismissed, if he was a trade union member might rely on trade union pressure and, ultimately, on industrial action to provide the adequate bargaining power and ultimate protection, or else had the alternative of pursuing a common law claim for wrongful dismissal. As a lawyer I know how unreal and inadequate that particular course of action could be. This is reflected in the few cases of common law proceedings for wrongful dismissal that there have been. In the cases that occurred it was generally a manager who claimed he was wrongfully dismissed or somebody at that level who regarded the courts as being protective and could afford advice and have lawyers representing him. It was not, in fact, a very adequate type of proceeding, though it is appropriate that it should continue as part of our law because there is a place for an action for wrongful dismissal.
Senator Lenihan made frequent use of the phrase "trade union power". He felt there was so much trade union power that this Bill was superfluous. He must know that there are a considerable number of workers who are not members of a union, and this tends to be the case with women workers to a considerable extent. Regrettably it is important that they should become members of unions but there are a number of employees who are most in need of protection because of the type of employment and because they are not members of a trade union. These employees, for the first time, have adequate protection and adequate job security. This is an important Bill and it has created the appropriate balance. I await clarification from the Minister on the other points I raised.
I should like the Minister to clarify a few points on section 6 (2) (a) and (b). Paragraph (a) refers to engaging in activities on behalf of a trade union, while paragraph (b) deals with the religious and political opinions of the employee. Does this mean that a person can do whatever work he likes on behalf of a trade union but can only hold a political opinion and no more? Does it mean that a person cannot become a Jehovah Witness or a Salvation Army member? Does it mean that a person cannot act on behalf of a political party in one's spare time because that is going further than having a political opinion?
There are many pressures put upon people who engage openly in politics if for any reason their employers do not like their activities. I have seen this in action many times. Employers can be quite vindictive and destructive regarding their employees' activities. Many pressures come on people who openly engage in politics if for any reason their employers do not like their activities.
I know a county councillor who has been given a nomination to contest the election for Dáil Éireann but he cannot accept the nomination because he is employed by the Post Office. The Post Office is not mentioned in subsection (2), unless perhaps it is covered by subsection (1) (h). If that is so I hope the Minister will elaborate on it.
There should be some explanation by the Minister why he mentions specifically activities on behalf of a trade union and purely the religious or political opinions of the employee. Surely an employee is entitled to engage in his spare time in religious or political activities undisturbed by his employer. Surely he is entitled to ask for time off or to take his holidays to engage in both political and religious activities without having his employer asking for explanations and threatening his dismissal. It might be said that this would not happen but I have seen it happen many times. I have seen it happen in concerns where people who attended county council meetings were told clearly in writing that unless they gave up their political activities they should look for another job. The Minister should state why political opinions are mentioned and trade union activities are covered. I have no objection to trade union activities and I am a member of a trade union myself, but I should like to be certain that I am safe in pursuing my political activities.
I thank the Senators for the various comments they made on the provisions of the Bill. By and large they were useful comments. Naturally, this Bill has been the subject of a certain degree of controversy in its passage through the Dáil and it is not surprising that some critical points should be made in relation to it in the Seanad also.
Senator Lenihan talked about the trade unions being quite capable of looking after the existing situation. It would be fair to sum up his position by saying that he did not quite see the requirement for this legislation since, as he put it, the vast majority of workers belonged to trade unions and the trade unions had the strength to look after their members, men or women, in a dismissal situation. Trade unions might not make the point very often, but they only organise 60 per cent of the total work force. Even in organised employments where trade unions organise the workers the fact is—and the Bill was designed to meet this particular situation—that trade unions in these situations manage to rectify an injustice relating to dismissal by, in too many cases, utilising the ultimate sanction of the strike weapon. The Bill addresses itself to meet this fault in the existing system.
Even where unions organise a work-force for the union to defend its member in the unfair dismissal situation it calls for resorting to the crude weapon which most Senators in the contributions on both Bills here today say is an outmoded weapon, one that should not be utilised in today's conditions, namely the strike weapon. Yet, unions are forced to utilise it in the absence of legislation of this kind. I would not agree with the Senator that there is not a need for such legislation, nor would I say the reasons cited by him, that the trade union movement is competent to look after the situation, should obviate the need for such legislation.
Senator Kerrigan referred to section 2 (1) (a), about the one-year continuous service requirement, and made the point that this was possibly too long a period. This point was referred to by other Deputies. All legislation that comes from the Department of Labour has to go through this consultation process with employers and unions and, in the nature of things, it is obvious that protective legislation will not simultaneously meet with agreement from both sides. In the nature of things it is obvious that there will be disagreement and conflict between employers and unions in any legislation dealing with this area. In that situation it is always my unhappy position to make a judicious decision, hopefully, as between the disagreements on what should or should not be done. In this case, on the one-year's continuous service requirement which is now in the Bill, the FUE wanted a two-year qualifying service while the Congress of Trade Unions wanted a six-months qualifying service. That is obvious disagreement. In the face of that rather fundamental disagreement on the period of service I made the decision that it should be one year on a compromise basis. Throughout the Bill, in answer to the query "Has this met with the entire agreement of one side or the other?", the honest answer is "No, it has not". In many cases, despite the most searching consultation with both sides, the civil servants in the section and myself have come to the conclusion that it is not possible to get unanimity about certain sections and in that case we are always forced to make decisions for good or ill.
Senator Lenihan used the argument that trade unions could look after the situation and made the point that the rights commissioners could deal with the situation, that they would not need the legislation. In fact, if either one party or the other refuse to utilise the service of the rights commissioner, that is the end of the matter and we cannot proceed any further with it. The simple expedient of expanding the number of rights commissioners would not meet the situation that this Bill seeks to remedy.
On the question of onus of proof, there was a lot of criticism that the onus of proof should rest on the employer. Yet, as Senator Robinson rightly said, the employer is the one person who has all the facts in relation to the dismissal at his fingertips before he comes to the rather serious decision for the employee that his service is to be terminated. That is what the Bill is aiming at: to make employers think seriously before they decide that a man's or woman's services are to be dispensed with. It does not mean that we feather-bed the inefficient employee because the criteria are quite explicit in regard to competence and qualifications. They are set out quite clearly and, therefore, the employee who is unable to meet these criteria will be unable to claim the protection of this Bill. Senator Lenihan was worried in case this Bill would be a means of nark-complaints threatening the efficiency of industry. I do not see that this Bill would result in that situation. The criteria are set down under which an employee can be dismissed. If these criteria are met with, the tribunal which investigates the matter must stand over the employer's case and accept that the employer was correct in terminating an employee's contract.
It is necessary that the imbalance which in the nature of things exists between an employer and an employee should be redressed to some extent when it comes to dismissal. After all, who initiates the action, who is the person saying that X person is no longer suitable in his or her job? Who is it who says to an employee after a certain period of service, ten, 15 years of service, "I no longer require you"? Is what we propose not perfectly appropriate and just? Most employers accept it, in any case. It is not as if we were talking about legislation that will be new to most employers, because most successful managers operate in natural justice the requirements set down in this legislation. However, for that small minority of employers who would for trivial reasons dispense with the services of an employee with a long period of service this Bill spells the end of the kind of arbitrary rights they had up to now to dismiss their employees. The Bill seeks to remove the imbalance which exists in the relative power in the matter of dismissal as between employer and employee. The employer, after all, has reports of supervisors, records and information that is relevant to the dismissal decision. The employer is the one who is taking the decision that X should be dismissed and it is only correct that on his shoulders should rest the onus of proof that that was the correct decision to take. In the absence of that provision the employee would be stranded with no information or reasons assigned for the dismissal. He would be unable to defend his position. He would not have much hope of successfully putting forward his case that he had been unfairly dismissed.
Senator Kerrigan raised the question of certain people who are not reemployed following a takeover of a business. Of course, the Bill makes provision whereby unfair selection for redundancy can be argued to be an unfair dismissal and employees affected as the Senator suggests would be covered by the Bill
Senator Robinson raised a question under section 6 (2) (f) on pregnancy. She queried whether it was sufficiently definitive in regard to a pregnant woman being unable to do the work and asked if this was a bit loosely drafted. She queried whether this might be excessively vague. I am loath to introduce a cumbersome arrangement in relation to pregnancy which might have to involve stipulating doctors' reports and so on. I am sensible of the point she makes in relation to the question of the person's competence to do a job when the person is pregnant, but the broad requirement that a dismissal based solely on the person's pregnancy is unfair would, I hope would be sufficiently protective under the Bill. We must not forget that the tribunals that examine all of these matters are there to see that particular clauses mean what they say. Senator Robinson has a good point, however, that we will have to watch this closely in practice.
Senator Quinlan asked if there was adequate consultation with employers and trade unions interests on this Bill. There was adequate consultations with both sides but we did not get this general agreement on several of the provisions of this Bill
Reference was made to the circular of the Irish Hotels Federation. Having read that circular it is only too clear that the only solution which would meet the requirements of the Irish Hotels Federation is the withdrawal of the Bill. Obviously, there is no agreement on that matter.
Some employer organisations, it must be said in honesty, are unhappy with the provisions of the Bill. This Bill is drafted to defend the employee from unfair dismissal and it is rather difficult to assume that such a Bill would in the normal course of things have the wholehearted approval of employer organisations. Naturally employer organisations would in the main look at the experience of managers around the country. It must be said that for the majority of succesful managers the provisions of this Bill will be unnecessary, because natural justice and their own sense of fair play ensures that these employers are at present voluntarily carrying out the provisions of this legislation.
Senator Quinlan referred to the six-month period for lodging claims in section 8. This, of course, was one of the complaints of the Irish Hotels Federation. The reason for this is that I was anxious to give the normal disciplinary procedures within the firm time to operate to see whether the dispute could be settled at that level. The procedures in this Bill here need not be invoked at all where the necessary disciplinary procedures in the firm deal with the situation.
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. Is the aggrieved party in the equal pay claim now covered by this legislation? In fact we are amending the Anti-Discrimination (Employment) Bill which is before the other House at present on Committee Stage. We are amending it to make the provisions consistent with the provisions in the Unfair Dismissals Bill so that by that means it will cover the person in the equal pay situation. It will not be covered by this one; it will be covered by the Anti-Discrimination (Employment) Bill, which will be coming before this House shortly.
It would not be covered by the term "civil proceedings" being brought?
I am satisfied that the person is covered under the amendment we have to the other Bill.
Redundancy of married women?
Yes. Unfair selection for redundancy of married women. They can bring and argue a claim under section 6 (3) and it is provided in the Bill that reinstatement or compensation will be available if the claim is successful. In other words an employer cannot pick them out and get rid of them in a redundancy situation where the criterion is the fact of their being married. That is covered under the provisions here.
It is quite understandable that there should be a certain amount of contention in relation to a measure of this kind. Many Senators in good faith will not see the necessity for such legislation. A small number of employers may not see the necessity for such legislation. I think the majority of people in industry on both sides, management side or the trade union side, will acknowledge that this legislation will make it more difficult in that minority of cases for real injustice to occur.
On the passage of this legislation I intend to seek the agreement of both unions and employers to accept a voluntary national code, as I have indicated in my Second Reading speech here tonight, and to get that adopted on a national basis. I would hope by means of the adoption of that code and the enactment of this measure before us that we can remove the question of dismissal as a potential for strikes or stoppages in industry. Even if we were to ignore the importance of this measure for individual rights in industrial situations and simply look at its contribution to improving the industrial climate on a national basis, I think the Bill should have our support. Its chief contribution must be in those areas where the employee is unprotected by union organisation; where the employee, he or she, is alone; where the employee can be defended by nothing other than the law. It is to remedy the deficiency in our existing statutory law that this Bill is devised.
Question put and agreed to.
Committee Stage ordered for Wednesday, 30th March, 1977.
The Seanad adjourned at 8.10 p.m. until 2.30 p.m. on Wednesday, 30th March, 1977.