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Seanad Éireann debate -
Wednesday, 30 Mar 1977

Vol. 86 No. 8

Unfair Dismissals Bill, 1976: Committee and Final Stages.

SECTION 1.
Question proposed: "That section 1 stand part of the Bill."

I have two queries to raise on section 1. They are important and I would be glad if the Minister could give me an indication of his thinking on them. The first relates to the definition of employer. I am talking about line 29 of the section. The definition of employer defines the employer as a person. In some cases of which I am aware, particularly in the case of certain people who are members of the teaching profession, they may not be employed by an individual in the sense that they may not be employed by a single individual or, indeed, by a group of individuals which have any standing as a company. In other words, they are not employed either by a single person or by a corporate person. Their employment may be with a group of people who, for example, are members of a religious order. Would it not be necessary to cover this case by the word "person" to be completed by the addition of the words "or persons" because there may be employment situations in which there is collective liability by several people for hiring and firing. This should be taken into account.

The second question I have on the section relates to the definition of industrial action. It refers to lawful action taken by employees in consequence of a trade dispute. Here again some teachers, and particularly secondary teachers, may have a major problem, because to the best of my knowledge many of the actions which they may take in furtherance of a trade dispute are not afforded the protection of the Trade Disputes Act of 1906. They may find themselves in a situation in which they would be taking action which would be legal for almost any other trade union having the protection of the Trade Disputes Act but which would be illegal in their case because the protection of the Trade Disputes Act has not been extended to them. I ask the Minister to comment on those two problems.

On the question of "person", the Senator's problem was whether this covered teaching for a religious order, which would be a number of people, and he asked therefore, whether the definition section would mean that there was lack of application in the context of employment as referred to by the Senator. The definitions are spelled out in the Interpretation Act, 1937. The word "person" under that Act is defined in the following manner:

The word "person" shall, unless the contrary intention appears, be construed as importing a body corporate (whether a corporation aggregate or a corporation sole) and an incorporated body of persons as well as an individual;

I would take it that the case is met in the definition section. The problem the Senator is concerned with is covered.

I am referring to a trade union such as the Association of Secondary Teachers which is not afforded the protection of the Trade Disputes Act, 1906, in relation to certain types of action taken by it in the furtherance of a trade dispute. In other words, this trade union might get involved in action which might be lawful for any other trade but which might not be lawful for it and as a result of which some or all of its members might be dismissed.

There is a problem there in that such industrial action is not protected by the Trades Dispute Act. I am having discussions with the unions in relation to the revision of general industrial relations law and the status of the Trade Disputes Act in general as it affects all other kinds of legislation. It would not be possible in this Bill to move into the definitions of industrial disputes. I am alive to the problem raised by the Senator and my officials are having discussions with the unions on the matter. I will be having discussions with the unions on that question also.

Question put and agreed to.
SECTION 2.

I move amendment No. 1:

In subsection (1), between lines 46 and 47, to insert the following paragraph:—

"() an employee employed by an employer employing less than ten employees".

The purpose of this amendment is to restrict the application of the Bill to a situation where there is a firm or undertaking of some size and not to a case where somebody employs one, two or three people. When I say ten employees I do not think that is a sacred figure. Possibly, it could be argued it might be something less than ten. The important thing is that this should not apply to a situation where somebody employs only two or three people and where the size of the concern and the relationship between the employer and employee is more a personal than a business one. That kind of situation should be covered by the Bill. I am suggesting ten employees, but if the Minister is disposed to meet me half way on that figure I would be very glad to meet him.

This problem was raised in the Dáil also. The main point of difference there was that it would be my objective to see that this Bill would apply to all employees regardless of the accident or the size of firm in which they worked. Perhaps, a greater case can be made for its implementation in small employments rather than in large ones. I had to reject a suggestion along these lines in the Dáil for the same reason. It would not be possible for me to accept this suggestion here, on the principle that the matters provided for in this Bill, unfair dismissal of the individual, that those rights should be available to individuals irrespective of the size of the firm in which they work.

The secondary argument, though probably a strong one, is that the main advantage of this legislation will be for those who are in employments that are not covered by the normal protection afforded up to now by union organisations. It is mainly to ensure that the remedy which up to now has been most readily availed of, even in firms where there is union organisations, namely the strike weapon, is not resorted to and to ensure that the law comes in instead with its criteria as set down in this Bill. This is the main motivation behind it. If one takes that into account it will be accepted that the size of the firm should not prevent its application.

That is all right theoretically. In the last Bill the Minister secured an adjustment of the EEC directive in the form of that legislation for our national purposes, which was not agreed on by the Council of Ministers, to ensure that the directive should apply to five dismissals in firms between 20 and 50 employees. This is a recognition of the fact that there is a problem of small firms here. We are largely a country of small firms. To apply the whole panoply of protection against unfair dismissals envisaged in this Bill to the small firms Senator Eoin Ryan talked about, firms employing under ten people, and to apply the full weight of the rights commissioner, the appeal to the tribunal, the appeal to the Circuit Court and the incumbrances on the employer envisaged in later sections of the Bill is a little unreal in the Irish situation. It is taking a sledgehammer to crack a nut.

I do not see the rationality in bringing in these firms, employing a few people and excluding the whole area of local authorities, health boards and vocational educational committees. These are being excluded as are the Garda and a number of other categories under the section. These big battalions of employers, impersonal organisations, are being excluded from the provisions of section 2. In my view there is every reason for the remedies proposed by the Minister to apply to these impersonal organisations, because real injustice can be done down along the line to employees or officers of these excluded bodies. We have the situation that we have included employers of a few people, particularly in the building industry where a great percentage are in business in a small way and where the work tends to be of a take-on and let-go nature. I am not saying that that is the ideal type of employment but it is a fact of life in our situation in that type of industry. Surely, it is unreal to impose the whole panoply of the burdens envisaged here in regard to the right of the employee on that type of small personal firm and to encourage costly recourse to the procedures envisaged in the Bill.

If not ten certainly seven, six or five would appear to bring this matter into the focus of reality as far as the genuinely small personal firm is concerned, where the boss knows the men and women and they know him. To start introducing those procedures into that type of employment is highly unreal. It is going to lead to tiresome and unnecessary wrangles and haggles and lead to expensive recourse to the procedures, cause small employers endless trouble and hassle and leading to, I am sure, a man giving up the ghost and going back to his trade. I am thinking in particular of the building industry where a large number of tradesmen habitually go out of the industry to become small contractors. Rather than be faced with this burdensome procedure they will go back to their trade. This is in contrast to some of the exclusions written into section 2, where in my view, it would be more appropriate to have the full rights procedure to prevent people in impersonal organisations being buried, wronged or rendered injustice.

I support the amendment proposed by Senators Ryan and Lenihan. It is important, especially in rural Ireland where we have a lot of small industries such as painting contractors, garages and printers. If we hope to expand or retain the employment we have it is in that sector we will find it easiest and cheapest to move.

In the Protection of Employment Bill, while that was dealing with collective rights, we recognised the problem of the small firm and we set down figures to show that. This Bill deals with the problems of the individual.

It is my point that we cannot deprive an individual of the protection of this legislation simply because he or she works in a small firm. It would be manifestly unfair if such an individual were excluded from its provisions. I do not see how business would be interfered with because the employer must before dismissing a person explain the reasons this dismissal must go ahead. It is a myth, I believe, to think that the small employer can recruit employees more easily than other employers, that their relationship is so different that the same rules do not have to be obeyed. It is often said that the employer in a small firm has a closer relation with his employees. That relationship cannot be good if the small employer, in common with the large employer, cannot obey certain minimum conditions laid down in this legislation, that is, that if he is to dismiss a person he must give him the reasons for his dismissal and be able to stand over those reasons. I believe it would be very unfair to say to the employee in the small firm "Since you work in a small firm, you are not covered under this legislation on unfair dismissals".

On the other hand, where the small firm has a problem in relation to collective redundancies, we have made allowance for that situation. We made exclusions in relation to the particular problems that can arise where close relatives are involved. We have an exclusion in that case in section 2 (c) because we do not want to see legislation passed by the Oireachtas becoming a bone of contention especially in relation to the land ownership. That area is excluded. I hope that any section of employees who are excluded by this Bill can be brought within its scope as soon as possible. Those who have been excluded up to now in this Bill are those who have been covered by existing procedures. We should have a uniform statutory code of practice throughout the State, in private employment, in public employment, in firms large and small, covering all employees irrespective of where they work. Regrettably, I cannot meet the Senator in his point of view that there should be exception made in the case of small firms.

When the Minister talks about people excluded for whom machinery already exists, I presume he is talking about people employed by or under the State and other categories of that kind. Of course it is impossible to rationalise the situation in which a small firm has to subject itself to all the paraphernalia of this Bill, whereas large State bodies of various kinds are immune from it. There are procedures in some of them, but certainly not as onerous as the procedure in this Bill. There is no procedure, as far as I am aware, applying to those who are excluded in this Bill. There is no procedure whereby the employer, which would be the State in that case, is put in the position of having to prove that the dismissal was not unlawful. This is what the employer is obliged to do under this Bill. Whatever about a sophisticated employer who is able to get advice and so on, we must consider the very small employer in the country employing two or three men. If someone whom he dismissed or let go invokes the protection of this Bill, the employer will certainly find it impossible to really argue his case. He will have to face up to the situation that unless he is able to prove that everything about the dismissal—which may not have appeared as a dismissal at all at the time—was impeccable, then he is subject to the penalties of this Bill. There is no way of rationalising it. I am sure the Minister will not attempt to rationalise the discrimination shown against the ordinary employer, and particularly the small one, as compared with what the State is able to get away with, simply by writing in large numbers of excluded persons into this Bill.

Leaving aside the basic discrimination in that regard in this Bill, certainly there should be something done for the very small employer who will be beaten from the word go. He will never even have a chance of making a case or understanding what kind of a case he is supposed to make in the kind of situation that may develop, because, according to this Bill and contrary to all the principles that applied to situations like that in the past, he is deemed guilty unless he can prove himself to be innocent.

We would not wish to create the impression that the small employer will be faced with a huge bundle of fresh obligations, an increase in the number of official forms to be filled in and a long procession of procedures which he must comply with. We must remember what is proposed here. All the small employer has to do, apart from the provisions of ensuring that he must give reasons for a dismissal, is to remember that the procedures he will be dealing with are informal. All that is required is that the employer must tell his side of the story to comply with the provisions of this Bill. The criteria under which he may dismiss a person are set out here. All he has got to do after that, if it is regarded as unfair by the employee, is to explain his side, his reasons for the dismissal of an employee. It is incontestable that the employer in these situations should give his reasons for dismissal of his employee, irrespective of the size of the firm.

That is precisely the trouble. The Minister says glibly that it is just a question of the employee claiming that he was dismissed unfairly. In section 6 (1) the dismissal of itself is deemed to be unfair. Therefore the whole onus is thrown on the employer to meet the full weight of any complaint brought within six months of the dismissal of a worker. In defending he is then not in an informal area. I made the point on the Second Stage yesterday that there was an informal procedure envisaged under section 6 or some other section. That would be all right if it was just the question of a member of the staff of the rights commissioner trying to sort out the problem in an ad hoc, friendly way. But it is not that way. We are setting up here a legal structure side by side with the existing common law structure. The small employer is not in an informal situation where the matter can be settled before a friendly rights commissioner or representative of the rights commission. That is not what is envisaged by section 6. According to section 6 the dismissal of itself is deemed to be unlawful. Thereafter the employer is in the dock and he must show that the dismissal that took place within six months of this hearing can be justified by him on the criteria set out in section 6 (4).

If I might interrupt the Senator very briefly, he says that the employer is in the dock. The employer has already dismissed an employee. He has already taken action.

The nub of the point is that the onus is being switched. A new legal remedy is being provided and this is not a matter that may be dismissed as something that can be settled around a table. The employer is faced with the obligation to make his case six months afterwards, though by the time the hearing comes up it could be seven or eight months after the dismissal. I am pleading the case for the small employer. In a small concern employing six, seven or eight people, some words are exchanged and a fellow goes. It happens every day of the week on every building site in the country. This man, getting some smart fellow to advise him, comes along bringing in the rights commissioner and the appeals tribunal, if the rights commissioner finds one way, and then goes into the Circuit Court. At the end, if the employer fails, he is faced with the penalties envisaged in this Bill unless he restores this person to his employment.

The Minister must recognise the onerous nature of the obligation that will be placed on thousands of small employers in this respect. Side by side with that, the big battalions of the State are excluded. Under section 2, which we are seeking to amend here, the civil service, local authorities, health boards, committees of agriculture, vocational education bodies are all excluded. More wrong and more injustice is done every day inside those organisations than would ever be done by a small builder to an employee on a building site.

Thousands fired every day?

Far worse than being fired, people are shoved to the side, sat on and really wronged and if we want to start talking about injustices that is where they are. I happen to have two illegal cases at the present time——

An Leas-Chathaoirleach

We will confine ourselves to the amendment.

——involving dismissals. There are people who are not as protected as the Minister seems to think. They are the employees of the more remote bodies, such as the vocational education bodies, subject to pressures of all kinds in the more remote counties, the employees of health boards and committees of agriculture. It is all right in the civil service where they have well-ordered procedures and complaints systems. But what about the pressures exercised on members of vocational education committees, clerical and otherwise, in regard to particular employees of these committees? There is a long litany of these people and they are excluded here. The Minister is refusing to accept that the type of employer most affected will be the small guy employing six, seven or eight on a building site—the sort of person in small textile and footwear industries the Minister is trying to encourage with his incentives under the employment premium scheme. The big battalions are let go.

All we are seeking to do under Senator Ryan's amendment is to exclude firms and persons employing ten or fewer people. In many cases they are not firms at all. An enterprise with fewer than ten people employed should be excluded from this Bill. If the Minister does not agree with ten, he might agree with six or seven or eight. We all understand the situation that exists in the country. These are small, personalised firms. The reality of the situation is that the men with a bit of enterprise and initiative will be driven out of that sort of small employer category if they see they are faced with these onerous procedures written into this Bill. If they cannot make a few pounds in an enterprising manner in a small building operation and if they see that they are hamstrung and impeded in this manner, they will feel that they would be better off as tradesmen or as employees in Britain or elsewhere than trying to make a go of it here in their own country.

A couple of things strike me about the amendment in relation to what Senator Lenihan has said. First of all, if the kind of small employer he is talking about is to go about firing employees unjustifiably, he will not fall into the category of employer much longer. Is this kind of thing happening already or likely to happen to any appreciable extent? Are firms of this kind wont to fire employees frequently or not? In respect of the passing of this Bill are they likely to be firing employees frequently or are they not? If they are not, there is basically no reason for this amendment. If they are, then it is not today or tomorrow that we should be passing this Bill, but yesterday or last year.

I still feel that the Minister must take cognisance of the fact that, apart from the city, down in rural Ireland we have not this great multiplicity of very large industries. There are quite a large number of people who believe in doing things for themselves and who are not always looking for Government grants to set themselves up. In particular, I have in mind people who have opened quarries and people who may be taking part in producing stone facings for buildings; people who have small garages or build trailers for bringing milk to the creamery for their neighbours; people who manufacture paling posts; people engaged in a souvenir industry; people making link boxes, wrought iron gates. There are various other very small industries that people have initiated and set up themselves. They are able to put a person into employment without getting the big grant that it takes to put people into very large industries.

It is very important that we should take cognisance of these people because they are certainly providing employment in rural areas where it is very much needed. Anything that will discourage people from doing that, as Senator Lenihan has said, would be detrimental to the whole effort of providing employment for our people. In my view the real culprits who should be in the dock in this matter are not the small employers but the Government themselves who are responsible for 116,000 people unemployed. It is they who should be walking up the steps instead of the small employer.

Amendment put.
The Committee divided: Tá, 6; Níl, 24.

  • Cowen, Bernard.
  • Dolan, Séamus.
  • Keegan, Seán.
  • Lenihan, Brian.
  • Quinlan, Patrick Michael.
  • Ryan, Eoin.

Níl

  • Blennerhassett, John.
  • Boland, John.
  • Codd, Patrick.
  • Daly, Jack.
  • Deasy, Austin.
  • Ferris, Michael.
  • FitzGerald, Alexis.
  • FitzGerald, Jack.
  • Harte, John.
  • Horgan, John S.
  • Kerrigan, Patrick.
  • Kilbride, Thomas.
  • Lyons, Michael Dalgan.
  • McAuliffe, Timothy.
  • McCartin, John Joseph.
  • McHugh, Vincent.
  • Moynihan, Michael.
  • O'Brien, Andy.
  • O'Brien, William.
  • Owens, Evelyn.
  • Prendergast, Micheál A.
  • Robinson, Mary.
  • Sanfey, James W.
  • Whyte, Liam.
Tellers: Tá, Senators Dolan and Keegan; Níl, Senators Sanfey and Harte.
Amendment declared lost.
Question proposed: "That section 2 stand part of the Bill."

I have a number of points to make on section 2. I will make them one after another and I should like to hear the Minister's reply to them. The first is in relation to section 2 (1) (a), and this is one of the core parts of the Bill. It smacks to me rather too much of sudden death because there could be a situation in which one employee would have very substantially greater rights than another simply by virtue of one or two days' further service. This problem arises in relation to all legislation which has in-built time limits. I would argue strongly either for a shorter time limit or for a different method of procedure. I accept that in all forms of employment there should be a reasonable getting-to-know period. It puzzles me whether the getting-to-know period should be as long as one year. I should imagine that most employers and employees would know each other fairly well within a period of six months or thereabouts and, in fact, unless I am mistaken, this is the period the British legislation gave effect to in the same kind of context.

If we cannot change the period from a year to six months, we should have another look at employee rights, not simply in terms of dismissal but also in terms of redundancy and of notice. It would seem to me—and I should be glad of the Minister's opinion on this—to be much fairer that an employee's rights with regard to dismissal should grow progressively over a period of employment rather than being non-existent on day 364 and in full force on day 366. There should be a phased system of protection built into this Act, as indeed there is in other Acts—most notably in regard to the Redundancy Act— which would have the effect of giving employees different degrees of protection at different stages of their employment. Would this approach appeal to the Minister?

The matter raised by the Senator was a point raised during the discussion in the other House. As the Senator may imagine, it was also raised when I met representative organisations on either side. Certain employer groups wanted two years in this area. The unions wanted something like six months under subsection (1) (a). Those were the figures mentioned by either side. I thought the fairest thing was to come down somewhere in the middle. That is the usual position for us to adopt in legislation of this kind and that is why the one year is referred to here. The United Kingdom had one year initially and I think they have reduced it to six months. That is the present position there.

The Senator accepts the need for a period but he talks about introducing flexibility in this matter. We did not go to the point of considering the varying circumstances of a flexibile variation under a particular period, if that is what the Senator had in mind. At this point we were anxious to get what we thought was a fair enough period. We believe that what some employers suggested was a bit excessive and what the unions were suggesting was impractical in legislation of this kind being introduced for the first time. I will take note of the Senator's point for future consideration of changes in this area.

I take it the working of the Bill, when it becomes law, will be kept under review in the Minister's Department.

The second question I have relates to section 2 (1), paragraph (c), the familial section. In response to an earlier amendment the Minister said that he did not wish the Oireachtas to pass legislation which would become bones of contention between members of the same family. It is probably fair to say that we have done this. The Succession Act is probably a classic example.

We could not avoid it in any case.

I am chary of removing people's rights or of excepting people from certain categories who have rights simply because they happen to exist in familiar relationships with people. We hear a lot about children's rights these days, sometimes also about parents' rights. We often forget that even in educational matters these rights sometimes fall to be exercised by one of these parties against the will of the other.

There are two more specific points on which I would like the Minister's guidance. Firstly, how the paragraph is to be read. On one reading of the paragraph all the things in it go together—in other words, in order to be exempted from the scope of this legislation you not only have to be in a familiar relationship with the employer but you also have to be a member of your employer's household and your place of employment is a private dwelling; house or a farm. If that is the case that meets my objection to a very substantial extent. It means that if a father was a managing director of a company, his son was an employee and the son wanted to take an action against him, the son could take the action in this particular set of circumstances

Outside of those listed, if it is not in a private dwelling house or farm.

Yes, private dwelling means a farm.

Having disposed of that perhaps we could go on to paragraph (h), a person employed by or under the State. There is an ambiguity here which I should be glad if the Minister would clear up. There are some categories of people whose salaries are effectively 100 per cent paid by the State even though they may not be in some sense employed by the State. My good friend, Senator Quinlan, would come into this category. His university professorial salary is paid entirely by the State via the university in which he works. Senator Quinlan, as far as I know, is not under any immediate threat of dismissal. But there are two university teachers in Maynooth at present who are under threat of dismissal. They and I would be very anxious to find out whether or not they might lose the protection of this Bill simply by virtue of the fact that effectively their salaries are paid by the State.

To answer the Senator, envisaged here are those who have a legal relationship with the State under the Industrial Relations Act, 1969. In other words, it is not where your money comes from finally but exactly what is the legal contract in your place of employment? If Senator Quinlan is ever forced to seek the protection of this Bill he will be covered.

I think Senator Quinlan is in less danger than the gentlemen in Maynooth.

As long as I do my work, otherwise the university can remove me.

Question put and agreed to.
SECTION 3.
Question proposed: "That section 3 stand part of the Bill."

I should like to address some remarks to this section and to the Minister as well. One of the problems in relation to this section and its effect is that there is no definition of "probation" unless it is defined earlier on, and I do not see that it is. There can be situations in which the existence of something which is called "probation" is something quite different. For example, in the teaching profession at present there are fairly stringent probation requirements. The teaching profession at present is very much a seller's and employer's market. There is no real parity of power between the employers and individual teachers who may be looking for a job especially in a situation in which, as in the secondary teaching profession—as many as 50 per cent of those who qualify as teachers every year are going to be without jobs by Christmas. They are in a position where they have to accept basically any and all of the stipulations any employer wants to make. One of the stipulations which is habitually being made and used against teachers, especially against very young teachers, has been the probationary period. The situation is aggravated by the fact that there is no necessary proof that the people who are alleged to be sitting in judgment on whether or not these teachers are fit to teach are qualified to pass that sort of judgment on them. It is called a system of probation but it can work out very substantially more as a system of intimidation. I appeal to the Minister—I know he has already made a substantial change in this area by bringing down the period of probation involved from two years to one—to see whether or not some final adjustment could be made to give people serving probation in those kinds of circumstances more protection than is afforded them under this Bill. As this Bill stands they will not get any protection.

I should like to support Senator Horgan regarding the probation period for teachers. It could be used against a teacher who could be kept on the probation list for quite a while, resulting in a grave loss of salary and increments in following years. It is important that this point be considered by the Minister.

It must be clear that the probation is at the commencement of employment and could not be used in the way Senator Dolan mentions.

In reply to Senator Horgan, it is made quite clear in section 3 that the contract must be in writing and the terms must be described in writing, that is, that there is an obligation of probation or training. As the Senator knows we have had consultations on the general period of probation. We have now reduced it from what was originally a two-year probationary period to a one-year probationary period. That is in line with the general requirement of section 2 (1) (a). It must be continuous service. This change amends the situation considerably. Obviously we must have a probationary period, it must be in writing and it is reduced to one year. Those are the changes that have occurred.

The Senator has discussed the provisions of this Bill with me before now. He is being critical of certain of the features attached to the probationary period. I understand that because I understand the feeling of many of the teaching profession, of looking askance at "probationary period" especially in the context of this Bill. The teaching authorities, if that is a correct description, feel it essential that there should be a probationary period. We have attempted to meet as far as possible the views of the representatives of the teaching profession in ensuring that the probationary period was reduced in the fashion set out in this section.

Would I be right in assuming that the equivalent protection in the British Act for probationers relates to a 26-week period rather than to a year?

I think it is 26.

I can only urge the Minister to keep this section and its operation under most stringent review as the Act comes into force. It may be an area where further problems may arise in the future. If it appears to the Minister that this probationary proviso is being used in such a way as to cause obvious injustice, I hope he will take whatever steps appear to him to be appropriate.

I can assure the Senator that I am aware of his concern in this matter of the probationary period. He has expressed his opinion on this question to me before now. I would remind him that under section 16 (1) I will have this power, by order, to continue to amend this legislation. Certainly I will be looking very closely at this aspect of it.

I should like to urge the rather opposite viewpoint to Senator Horgan now that we are divided by an aisle. It is very difficult in something as serious as teaching to form a judgment on a probationary period shorter than one year. We have to balance the rights of the individual against the rights of the children. The children deserve the best the teaching profession can give. Therefore, the proper and responsible use of probation is central to ensuring that the children get the best the teaching body can offer.

Question put and agreed to.
Section 4 agreed to.
SECTION 5.
Government amendment No. 2:
In page 6, subsection (3), line 10, after "paragraphs", to insert "(a)".

This is purely a consequential amendment. We made an amendment in the Dáil to section 7 (1) which provided for reinstatement as a form of redress under the Bill. I ask Senators to accept this consequential amendment.

Amendment agreed to.
Section, as amended, agreed to.
SECTION 6.

I move amendment No. 3:

In page 6, to delete lines 43 to 47 and "section" in line 48.

The purpose of this amendment is to remove the situation where a review or consideration of a dispute of this kind will be prejudged. The situation is that the dismissal shall be deemed to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal. There seems absolutely no reason why the employer should be discriminated against in this way. The section might be worded the other way round, that a dismissal shall be deemed to be justified unless the employee can prove that it was not justified. Why should it be one way or the other? It will come before a board or some kind of officer to decide whether or not it was justified. Why prejudge the issue by suggesting that it is unfair unless it is proved to be otherwise? This is contrary to the fundamental principle of our system of jurisprudence, which says that a person is deemed to be innocent until he is proved guilty. It is contrary to our whole system of law where, as far as possible, the court or whatever is trying the case merely has the two points of view and decides between them. This is quite unnecessary and will lead to a prejudiced and discriminatory view of any case that comes before an adjudicator.

Subsection (4) tilts the balance temporarily the other way and states:

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:...

Then, to make the situation entirely confusing, we have subsection (6) which states:

In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

The onus of proof in the first part of the section is thrown on the employer. Then in a later subsection it is thrown back onto the employee, while in subsection (6) it is back on the employer. Apart from the fact that it is discriminatory and unnecessary, it will certainly end up by being thoroughly confusing. It all arises from the compulsion on the part of the Minister to have onus of proof tilted very largely against the employer. Why not simply have the situation where the dispute, as to whether or not it was unfair, is tried by the officer with the two points of view put before him and he adjudicates on the two? It seems unnecessary to have this onus of proof.

I am aware that if the Minister was disposed to accept this amendment he would probably have to make some consequential amendments, because just to remove these lines would not be enough. But, of course, we have had very little time indeed to consider amendments. I am putting down the amendment to make a point which I think needs to be made. If it were to be accepted I agree that probably there would have to be a rewording of it or consequential amendments of one kind or another.

In this kind of situation, where the Minister says he is doing no more than endeavouring to ensure that justice will be done, that there will be no unfair dismissals, it seems quite unnecessary to have an onus of proof of this kind tilted very strongly in one direction when exactly the same result could be obtained by merely seeing that the matter is adjudicated upon by the officer or body concerned. Consequently, I see no reason why there should be any deeming that the dismissal was unfair any more than I see why there should be any deeming that it was fair or shall not be unfair as it appears in subsection (4). Both of these could be taken out and the section rewritten with no deeming and no onus of that kind. The section would be very much improved, the whole climate of the Bill, the whole approach to this problem would be very much better and there would be no suggestion that there was any discrimination one way or another if these lines were taken out of the Bill.

I would just make the point to the Senator that I understand the principle he refers to about the onus of proof and the common law position in relation to that before matters are tested. But here we are dealing with the situation in which the employer has taken action and dismissed for reasons known to him. At this point the law steps in and suggests that he must explain his actions, must give reasons for them, and he has an onus to discharge. After all he has taken action. Long before this is invoked a person has lost his job. I do not think it is exactly comparable.

In subsection (4) the employer seems to have an onus in his favour——

There is not any prejudgment here. Subsection (1) must be taken together with subsections (4) and (6). Taking all of these together, subsection (4) lays down the matters without prejudice to which the employer can gain his case and be free of the obligations of this Bill when he proves under subsection (4) that the employee was incapable, incompetent, lacked qualification and that his conduct was lacking. The reasons the onus is placed on the employer's shoulders are as follows. He alone is in possession of the information; he has initiated the action; he has the documentary proof that led him to take that action. The employee, on the other hand, is the person who has lost his job. The employee in losing his job can only be protected where he can prove that his conduct was not in any way deficient, that it was up to the mark. He must satisfy the tribunal that he was capable, that he was competent, that he did not lack qualification. When we see it in the context of the entire section and realise that this is an industrial relations matter we begin to understand that the provisions are perfectly fair and practical in the circumstances.

I agree with one thing the Minister said—it is precisely an industrial relations matter, no more and no less. This is a matter that can be settled in every area where the aggrieved employee is a member of a trade union. It can be settled provided there are proper trade union procedures and arrangements, joint management/worker procedures and proper consultation procedures and arrangements. All of this can be worked out in a properly organised firm between trade union and management. The two aspects that will really be involved in 90 per cent of dismissals are (a) and (b) of subsection (4) of section 6—the capability, competence or qualification of the employee for performing the work for which he was employed under (a) and (b), the question of the conduct of the employee.

Why do we have to have the whole apparatus of the rights commissioner, the Employment Appeals Tribunal and the Circuit Court brought into this area that can be teased out between trade union, shop steward, works council—any of the numerous procedures we have been successfully evolving in our better firms and hopefully evolving in all our firms? Why not have this type of matter settled through those procedures? This is what I strongly object to—bringing in the whole panoply of the law, creating a new system of rights in regard to a matter which, as the Minister rightly said, is really part of the area of industrial relations?

This is what we are talking about. This is the way it has always been traditionally. I would hope that the only possible area where there might be injustice at present would be that of non-union workers. I grant the Minister that. We have a very small percentage, I say thankfully, of non-union workers in this country because I am a great believer in trade union power. I am a great believer in trade union and management provided that the procedures that are established are effective. I am a great believer in trade unions and management working out these matters themselves, through consultation arrangements, through works councils representative of shop-floor workers and management, in touch with the actual conditions as they exist on the shop floor.

That is where these matters should be settled and teased out. They should not be made the subject of a new scheme of legal rights side by side with the existing common law code. I disagree fundamentally in principle with this whole question of introducing a panoply of rights in this area, which is essentially one to be teased out within the arena of industrial relations. If one is to improve on that—and I wish for more and more improvements in this area—let us have them within the Labour Court, within the ambit of the rights commissioner already existing. Let us have his office staffed to a greater degree. Let us have a very effective arm of the Labour Court dealing with these rights and problems. If it is necessary to call in a rights commissioner or his representative, let that person be available at short notice to act in a fire brigade capacity if this matter cannot be settled on the floor or between management and worker, instead of establishing a type of procedure that would take six months or possibly 18 months to work.

Why not have all this matter teased out swiftly in an ad hoc way, as Senator Ryan is seeking to do in the amendment? Instead of putting the onus on the employer, why not have all the matters that should be dealt with under subsection (4) dealt with in the way the amendment suggests? The net issue in the great majority of these cases involves the conduct of the employee, for or against whether he was right or wrong in a particular situation, how he behaved and how he did not behave.

That is the sort of thing that will be settled and can be settled by a special rights commissioner or his representative being available on the spot if the existing consultation procedures do not work out or if the works council cannot agree. If the thing gets bound up on the floor between management and worker then bring in this fire brigade officer from a special rights commissioner's office, a man skilled in this sort of arrangement. Let him get people to sit around a table and settle it there and then. This is where the energy should be directed, not in creating a whole new edifice of rights that will add a new complicated area in which, I warn the Minister, narks and hooks—the people whom trade unions would not back in a million years—will flourish in taking action against employers.

I have great respect for the common sense of the trade union movement, of the majority of shop stewards on the floors. These people, with the aid of some outside fire brigade officer from a special rights commissioner's office, can settle these matters. If the trade unions do not back a man or woman fully in that situation, in 99 cases out of 100 that person is not worth backing. The person the trade union or shop steward will not back, the person who, in most of the cases I am talking about, the trade unions are happy to see gone, because he or she is of no more use to the trade union than they are to their employer, that person will make the greatest use and derive the greatest benefit from these procedures.

That is the great danger we envisage here. The section will impose a new legal procedure placing the onus completely on the employer and particularly on the small employer. In this Bill we are backing people whom the trade unions, in their common sense and wisdom, would never dream of backing.

The rights commissioner will not operate at all in most cases but when he does he will operate in accordance with the rules that we have set out here. The section is necessary because all workers are not in trade unions and they particularly would require the protection of this Bill.

I should like to add a few words against this amendment because there are some fairly fundamental issues at stake. Senator Lenihan talked about creating a whole new panoply of rights and so on in such a manner as to put the fear of God into anybody who is bedevilled enough by the degree of bureaucracy that seems to be inseparable from civilised life today and is horrified at the thought of any further accretions to it. But in this Bill we are talking about people who have little or no rights under existing legislation. If you are to give these people rights they have to be new rights and they have to be written in in this way. I do not think it is in the slightest bit unfair that the onus of proof should be, as is stated in this Bill, on the employer.

There is a very odd situation in relation to employment in general, not just in this country but in every country in the world, because job security is rarely taken into account in relation to wages or other matters. One would think that natural justice alone, on the face of it, should determine that the people who get paid least in our society should have the greatest job security and the people who get most could afford to do with comparatively less. But in fact the power play in society is precisely the opposite: it is the people who have the bargaining power in society who have the big salaries and the expenses and all the rest, who also have job security. They swallow up so much job security that there is not enough left for anybody else. It is the small men with the low salaries, and who do not have the "perks", who are also crucified by the absence of anything that might be described as reasonable job security. In so far as this Bill goes it goes some way towards reversing that balance, although there is a long way to go before it is reversed completely. I think that it is very much to be welcomed and that is why I oppose the amendment.

Amendment, by leave, withdrawn.
Government amendment No. 4:
In page 8, after line 28, to insert: "(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 that they have been dismissed due solely to their trade union membership or activities but who are otherwise excluded under the exclusion categories mentioned in the Bill, that is, they are excluded because they have less than one year's service or they are beyond retiring age or they fall into the category of probation. This is to ensure that, even where they are excluded from the various categories in the Bill, if their dismissal arises because of their membership of a trade union or their activities on behalf of the trade union the Act would operate.

This is a matter that concerns Senator Lenihan. On the last amendment he was concerned about the onus of proof. In this case no onus of proof rests on the employer's shoulders. In other words, it is an equal power position—it is for the employee to prove that his dismissal was because of his trade union activities. But I think it is only fair that, where the cause is solely related to the activities of an employee and a trade union, there should obviously be no onus of proof to discharge on the employer's shoulders, and there is not in this case.

I welcome this amendment because I feel that in no circumstances should trade union membership, or activity on behalf of a trade union, militate against any employee whether he is in the exempted or non-exempted category. I am a believer in equality in regard to members of trade unions and this represents the greatest credit of our system of industrial life and any hope we have for industrial democracy. I am glad that it is also on the basis, as the Minister says, of an equal presentation of the facts and decision.

I should like to ask a question in respect of a specific case concerning a teacher. There is an old standing agreement between the Department and the diocesan authorities where when the average number of pupils in a school drops below a certain figure the teacher becomes redundant. That teacher is then put on what they call a panel system. This is an arrangement that was worked out between the INTO and the Department for 30 or 40 years.

The point I am making is that since then many teachers have been allowed to come back into the services. Many of them have large families. This fall in average might come at a very unfair time. It might mean that they would have to be transferred or to take the first available appointment within the diocese. As a result a teacher might be forced to travel 60 to 80 miles away from home. Under present legislation if he did not accept an offered job he might be dismissed. I wonder if such a situation would be covered in this Bill. I know that in some places there is the possibility of very grave hardship on teachers.

The case referred to would normally come under the heading of redundancy, though I do not think teachers are covered by the Redundancy Act. What was the Senator's point?

The point I was making is that the Department notify the teacher if the average enrolment drops. That has been happening in smaller schools in rural Ireland. Now that the population is on the increase that situation will rectify itself very soon. The dioceses are so large that a teacher might have to go a distance of 80 miles.

They are not covered by the Redundancy Act. The problem raised by the Senator is one that would call for amendment of that Act.

I would ask the Minister to try to rectify the position.

Senator Dolan was speaking in regard to primary teachers who if the enrolment falls in their school may have to work elsewhere. They do not lose their jobs. In the case of small schools in rural areas, where the average enrolment is small, or indeed where schools are amalgamated, teachers will have their State salaries paid. I am not clear about their position. They are the teachers who are covered by redundancy legislation.

That is so. I was thinking of secondary teachers.

Amendment agreed to.
Question proposed: "That section 6, as amended, stand part of the Bill."

Subsection (2) states:

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, to be an unfair dismissal if it results wholly or mainly from one or more of the following:

(a) the employee's membership, or proposal that he or another person become a member, of, or his engaging in activities on behalf of, a trade union or excepted body under the Trade Union Acts, 1941 and 1971, where the times at which he engages in such activities are outside his hours of work or are times during his hours of work in which he is permitted pursuant to the contract of employment between him and his employer so to engage,

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

What was the necessity for this provision? There could be a situation, for instance, in which an employer could fire a local Fine Gael secretary for his politics. It would be fair to say to the House that it is not often we get cases where the politics of people is the cause of dismissal. This is an attempt to align with ILO definitions. It is to provide for a situation referred to by the Senator on the Second Stage.

Activities on behalf of a trade union are specifically mentioned.

It would be unfair if a person's opinions in politics were a cause of his dismissal. The employee can prove that he was dismissed for his political opinions.

Am I right in thinking that there is no necessary connection between subsection (2) (b) and the provisions of the Offences Against the State Act in relation to the continuation of employment where persons are convicted of certain offences?

I have a number of other points in regard to the section which I should like to make now. First, I should like to compliment the Minister on the change he has made in the section particularly in relation to the need to identify substantial grounds for dismissal in subsections (1) and (2) and on removing a certain amount of verbiage which qualifies the political or religious opinions of the employee.

There is another question in relation to paragraph (f) of subsection (2) as to whether the Minister adequately protects the rights of pregnant women in employment. This is a very ambiguous area. All sorts of enterprises have different rules and sets of regulations about the amount of help and encouragement given to female employees who may want to have children. There is a certain amount of consideration but perhaps not enough. The section does not stipulate any provisions for sick leave in employment. It does not explicitly refer to absence of an employee for the birth of a child. Birth is a matter connected with pregnancy and it would have been nice to have it spelled out more specifically. Subsection (4) (b) refers to "the conduct of the employee". What is meant here is the misconduct of the employee?

The onus is on the employee. There is nothing in our legislation that prevents the free expression of opinion however wild such opinions were. It is another matter if a person is involved in subversive activities.

If pregnancy were the cause of dismissal the employee could cite the provisions of this Bill. I agree with the Senator that the area of possible discrimination in relation to pregnancy in employment has still to get quite an amount of consideration in legislation. We do not suggest that this is the last word on it. The whole question of maternity leave is a very important area and one that we have not yet started to legislate in. What we had to do in a Bill of this character was to outlaw pregnancy as a basis of dismissal.

The pregnancy subsection is pregnant with problems. I will say no more on that.

Question put and agreed to.
SECTION 7.
Question proposed: "That section 7 stand part of the Bill."

I have a number of questions to ask on the section. First of all I compliment the Minister on his writing in the concept of "reinstatement" rather than "re-employment". It is a fundamental change and I am glad it was made. There are a couple of problems about redress which I should like to bring to his attention. If the appropriate form of redress for the employee found to have been unfairly dismissed is reinstatement, what is to happen to employees whose rights either in respect of pensionability or promotion might have been seriously put at risk by the break in service? On the financial side, a problem arises in relation to secondary teachers. By far the greater part of their salaries is paid by the State, although the minor part of their salaries, which stands as a contractual relationship between them and their employers, is paid by the school. In a situation where a teacher is found to be unfairly dismissed and is entitled to be re-employed, can the rights commissioner recommend or can the tribunal decree not only that the school in question makes good his length of service and pension rights, promotion rights and so on, but that the State should pay that part of his salary which he would have been paid if he remained in employment but had lost by virtue of being unfairly dismissed?

The Senator raised the break in service and asked whether this was in connection with the reinstatement where a person's income was tied to service. Even if a break occurred, if there is a positive recommendation from the tribunal there is no break in service. What the Senator fears cannot operate. There will be no break in service in that circumstance.

Why does section 7 come before sections 8, 9 and 10? It is not a matter of great importance but one would imagine that the method of dealing with the complaints should be first and then finally the penalties and so on.

It did not occur to me. There is not any particular reason for that.

In relation to subsection (1) (c), would the Minister consider the possibility of putting in a minimum compensation clause? It could happen that the compensation might be very slight, and there are provisions in other types of legislation of this kind for a basic minimum compensation in any case in which an unfair dismissal is proven. I would think that, regardless of the material damage or loss sustained by the person who has been unfairly dismissed, there should be a basic minimum type of compensation. It need not be large, probably a fortnight's pay or something like that, which would be a form of punitive damage designed to persuade that employer or indeed any other employer not to do the same thing, that he was not going to get away with it. It need not be very large but it should be there, more especially in view of the rather sophisticated provisions of the Bill, because people who get any kind of award under this Bill may not proceed at common law for damages.

There are two views on this minimum payment. Some people would claim that we would be setting a precedent if we provided for a minimum compensation award here. I prefer to think that it would be better to leave this to the discretion of the rights commissioners, who would add to the body of experience in this area and build up precedents based on the actual application of the provisions here. In other words, leave it to their discretion. That is a better way to operate here than simply to set a figure down. There is a point in what the Senator says, but in practice most people who deal with problems of this kind would prefer the maximum of discretion to be left available to them.

I should like to have one problem clarified, which a rereading of the section has brought up. Subsection (1) (a) refers to reinstatement by the employer of the employee. The Minister has made it quite clear that, if positive declaration is made by the rights commissioner or tribunal of the court, no great loss of service will be held to have taken place. However, subsection (1) (b) refers to "re-engagement" by the employer of the employee, in the same position or in a different position. It is really a matter of some concern here that a person's pension or promotion rights should not be in any way worsened as a result of re-engagement or reinstatement, particularly if he is to be re-engaged in the same position which he held before he was dismissed.

The answer is that if the tribunal went for "re-engagement" there would be an element of penalty in the decision they came to, because re-engagement is obviously not as good for the employee as reinstatement. We allow these alternatives here to give a flexibility to the tribunal. In other words, there would be an element of culpability in the case of the employee who simply gets re-engagement at the end of the appeal under this legislation. Of course the element of penalty would be more severe in the categories mentioned by the Senator here. This of course would be a factor presumably weighing in the tribunal's mind in both cases, because it would appear to be a penalty out of proportion to re-engagement in other circumstances.

Question put and agreed to.
SECTION 8.

Amendments Nos. 5 and 6 are related and may be discussed together. Separate decisions may be taken if necessary.

I move amendment No. 5:

In page 9, line 30, to delete "6 months" and substitute "1 month".

The reason for this amendment is to cut down the period within which a claim may be made. It seems to me inconceivable that an employee who feels he is being unfairly dismissed could not formulate at least some kind of notice or letter to say that he wants to appeal against that dismissal within a matter of a month.

If two months was suggested I would not think that entirely unreasonable, but I think six months is entirely unreasonable. In this case it is the employee who is making the claim and who feels he has been unfairly dismissed. Surely he should be able to come to that conclusion and give some kind of notice or make some kind of claim within a matter of a month. This is important because if it is left for six months then the employee who will know he is going to make the claim can have his facts and figures and reasons assembled before he makes it but in many cases the employer may be unconscious of the fact that there is a question of unfair dismissal involved.

It must be realised that very often in the kind of situation where somebody leaves employment exactly what happened may be very blurred and uncertain as far as the employer is concerned. It may be a question of a man who was dissatisfied for some reason and walked away, or it may be a case of a man who does not come back some Monday morning. The employer may not be aware that there was any question of unfair dismissal or even of dismissal. Whereas the employee, if he is going to make a claim, is conscious of the fact that he feels it was unfair and intends doing something about it. It is unrealistic to allow a situation to develop where a person leaves employment in circumstances in which it was not obviously an unfair dismissal or was not even a dismissal at all. The person subsequently makes a case that there was unfair dismissal, the employer may have forgotten entirely the circumstances of the case and may find it difficult, if not impossible, to prepare his defence for such a claim.

Senator Quinlan's amendment meets the situation. It is that some notice must be given. That is an equally good way of meeting the situation. However, not all dismissals take place in a dramatic way where it is quite clear that there was a summary dismissal, whether it was merited or not, unfair or not. They often take place in a very vague way and the employer would not be conscious that anything of the nature of a claim for unfair dismissal was going to take place. He would not be in a position to remember what happened on the occasion. Six months seems to be too long in the circumstances. There should either be a limit of one month or alternatively some kind of a notice or communication, no matter how informal, as Senator Quinlan mentioned, to put the employer on notice that there is a claim pending against him.

Another important reason why the time should be curtailed is the fact that a situation may develop which would be very unfair to a third party, because the employer may employ somebody to fill a position vacated by the person who subsequently makes a claim. If the claim is successful the person who filled the vacancy may be well established. It may be six months or more by the time the claim is heard and by then that person may be very successful in the position and will have good reason for believing he is in a permanent job where he has good prospects for the future. The impossible situation then develops where the unfairly dismissed employee—if the dismissal is found to be unfair— comes back and the man who was taken on to fill the vacancy will have to be let go. In that way a perfectly innocent third party will be unfairly dismissed although he is not covered by this Bill.

In all these situations where there is a dispute as to circumstances, the sooner the claim is dealt with the better, because the recollection of the people who may be in a position to give evidence is clearer. The sooner the claim is made the more likely it is that the necessary evidence will be available if the matter is dealt with quickly. From everybody's point of view the minimum time, within reason, should be in this section rather than six months which is, by any test, far too long.

I urge the Minister to either accept my amendment of one month or, alternatively, the amendment put down by Senator Quinlan. From every point of view the section would be improved. Justice would more likely be done if the matter had to be dealt with within a short time and if the employer from a very early stage is made aware of the fact that a claim will be made against him.

For my own peace of mind I should like the Minister to tell us if a person waited six months, or any period between one and six months, to take action, would he not, in fact, be embarking on a course of action that would automatically break the continuity of his own employment? Therefore, the only result he could get out of a tribunal or a rights commissioner would be a re-engagement rather than a reinstatement. By the way the section is worded does it not put the employee at a disadvantage in that respect in that he could do himself more harm than good?

I have little to add to what has been said by Senator Ryan. Six months is obviously an absurd length of time. If we take a parallel from the Road Traffic Act, the Garda Síochána have to serve notice of intent within 14 days and then the prosecution, if they decide to take it, follows in due course after that. The least that should be done is that the employer should be given notice of intent of proceeding with such a case.

We should not confuse the issue by talking about the Garda Síochána giving 14 days' notice, because they are a disciplined force. They are paid for that and it is their job. We are talking about people who may not be organised, who may not know everything about the law. In fact, it will take some years before it gets to every person in Ireland that they have a right under a certain Act. We know, as public representatives, how many people do not know their rights even though it is broadcast every day of the week and would not know them for years until it affects them. I noted what Senator Ryan said in regard to a person not coming in on Monday morning and serving notice six months later. I can assure him that little attention is given to such a person by a tribunal if he has not notified his employer either that he cannot come or why.

This question of the period in which a claim could be advanced was discussed at length in the debate in the other House. It is clear that we need a certain period of grace under which a claim could be processed. The period we decided upon is one that would permit domestic grievance procedures, where these operate in firms, to operate, thus perhaps absolving those concerned of the necessity of availing of this legislation. In other words, the matter could be settled amicably without reference to these proposals.

It should be pointed out that the unions wanted a longer period than the six months referred to. The employers wanted something like three months and, to compromise, we decided on six months. A certain period is required. It is interesting to note that in the case of the redundancy legislation, which was originally passed in 1967 and amended in 1969, one can claim for almost a year. These periods are necessary because in many cases employees do not know certain rights they have. There is a need to permit them to catch up on the law before they can decide to move ahead on a case. The period we have decided upon is not unrealistic. It will not lead to immense difficulties for employers but, at the same time, it will permit employees concerned to make a case in a relevant period. Ignorance of the law is a factor in these cases. It would be a pity if, because someone did not know that they had a case, they could not put it forward because the time had run out.

On the other hand, we have to give a cut-off period, and six months is a realistic one. I could not agree with the unions when they sought a longer period and I could not agree with the employers when they suggested a much shorter period than six months. This is a discussion we had in the other House and I regret I am not in a position to meet the amendments put forward by the Senator. If we bear in mind that this legislation will, we hope, operate successfully in the context of industrial relations, a certain period is required. The common-sense one is six months.

I am not convinced by the Minister's reasons for leaving the section as it is. It is unjust to have such a long time, unless there is a reason for it. In the Act dealing with workmen's compensation a time within which claims could be made was set but there was a provision to the effect that, if a court was shown there were good reasons why the claim was not taken within a certain period, such as the fact that the man had left the country or gone looking for a job or something of that kind, the court could extend the time. In the ordinary course a certain time limit was reasonable and, in the absence of special circumstances, that time should apply.

That kind of subsection might be acceptable in this Bill and be an appropriate way of dealing with it. For a man—and he is the only person who can say that he has been unfairly dismissed—to be in a position to wait for six months, with the consequent difficulties and injustice not only for the employer but for the man who may have taken his job, no case can be made for that. In my view, all the arguments are for making it a shorter period. The Minister has not made any kind of reasonable case why an employee should be allowed six months before he puts in his claim. Apparently he is adamant about this, but he is without good reason except that is the figure he has picked and is going to accept.

The unions have looked for one period and the employers have looked for another and he has picked something in between. The lesson there is that people who are concerned in these things should always make outrageous claims and then the Minister will pick something in between the two and feel he has done justice to both parties. I do not know what the unions asked for. Perhaps they asked for five years and, consequently, only allowing six months seemed very reasonable in the circumstances. It all depends if it is a matter of merely compromising between two suggestions that are made—and one or perhaps both suggestions are absurd— and then picking some figure in between the two. That is not really a sensible or just way of dealing with the situation.

I should point out to the Senator that it is true that the employers wanted a shorter period and the unions a much longer period, but I should explain that my original proposition to both sides was six months. In other words, if it was a compromise, we were the originators of the compromise. We did not come after the event and say we would split the difference. It was our proposal at the start and it was mainly based on our feelings that the Bill should, if possible, augment existing domestic grievance procedures. There are existing procedures up and down the country in many industries. In a dismissal case of this kind there are steps laid down in many industries which work very successfully in many cases.

It is conceivable that, in a case of this kind where there is this domestic grievance procedure existing in a firm an employee in good faith might spend something like three months attempting to resolve a problem at that level. It is conceivable that an employee, even knowing of the existence of legislation, might put all his faith in resolution at that level and in the end might be dissatisfied and feel he should have invoked the provisions of this legislation.

Mr. Ryan

Surely, the Minister could put in Senator Quinlan's amendment, then?

Because they would have had notice under the domestic grievance procedure that could be deemed to be notice?

We would have the difficulty of uniformity, the difficulty of scrutiny of the existing procedures. There is an immense variety of them up and down the country. I should add that as soon as this legislation is through I hope to begin discussions to try to bring greater uniformity into these varying domestic procedures. As far as we are concerned it would bring us into the whole twilight area of adjudication on the relative merits of existing domestic procedures. The practical point we were anxious to meet was that a person should have a reasonable period in which appeals could be made. I referred to the experience of the redundancy legislation, under which originally 30 weeks was the period of recall and now it is up to two years. That is under legislation I had nothing to do with it, but it was legislation that answered the circumstances in which people did not know their rights and in many cases did not make appeals in time. It was necessary for Ministers of Labour before me to amend that legislation and to allow an appeal up to two years. It would seem, therefore, that a six-months' recall is not unrealistic when the other legislation allows recall up to a period of two years. In that case we are talking simply about amounts of money due to a person in a redundancy situation. Here we are talking about a person losing his or her job. I am sorry Senators are unconvinced by my arguments but I believe six months is the common-sense period.

Even accepting the Minister's reasoning on this, that he wants to allow domestic grievance procedures to act, the fact of availing of those would be accepted as a notice of intent. What I am concerned with is the case where an employee who is dismissed disappears and just an hour before the six-months' period elapses he hands in a claim for unjust dismissal. That is very wrong and I cannot see why the Minister cannot prevent such an occurrence.

I appreciate the difficulties in getting a proper period of time. Senators Quinlan and Ryan referred to a type of case that is certainly not covered and is going to present enormous difficulties due to the length of time. It is the type of dismissal which is not covered by grievance procedures at all. I am all for these matters being dealt with ad hoc through grievance procedures or as quickly as possible. That sort of case is all right and is continuing as the Minister said. If the employee does not get satisfaction out of it after three or four months, then he or she can proceed under this Bill.

I am concerned about the case of the ad hoc dismissal. Take the case of a slagging match on a building site or a factory floor between a foreman and an employee. Words are used and the employee goes. As far as the employer and the employee are concerned that is the end of the story but, suddenly, five months later the matter is resurrected. Everybody concerned with it has forgotten about it and no record has been taken. Then starts an investigation of this kind under which the onus will be on the manager, foreman or employer concerned to argue out his case as to the fairness of the dismissal. That is an impossible situation. That type of dismissal is one that can only be dealt with when the facts of the matter are reasonably fresh in everybody's mind. I see no advantage whatever except to give rise to all sorts of narky, frivolous and fictitious claims. There is no merit at all in having that type of dismissal held over for five or six months in which a claim is put in under this Bill and the whole procedure starts. There is no comparison between that and a period with regard to redundancy payments which is a straightforward matter in regard to financial compensation.

We are talking here about evidence of a human kind which would have to be adduced and the onus is on the employer to adduce this evidence, in regard to facts and circumstances surrounding a dismissal that may never have been recorded. That type of situation is going to give rise to this sort of very heavy onus on an employer who has subsequently re-employed a person having forgotten about the whole incident but suddenly finds a claim served on him five or six months after the incident has happened. I do not see how that represents anything else except a tremendously unfair burden on the employer concerned. That is not an unlikely situation having regard to what happens at a human level on a factory floor or a building site.

The Minister is being a bit unreal in thinking that that set of facts will not form a very high proportion of claims under this Bill. I can see the great majority of legitimate cases being dealt with under ordinary internal procedures of varying kinds, grievance, consultation or works council procedures. They can be dealt with by all sorts of management-labour consultations or the ordinary muscle of the trade unions. There are so many ways in which legitimate grievances can be settled in the ordinary course of events through the procedures I have mentioned, but what we are giving rise to here is the oddball type of action that will be taken by the fellow who was told in bad language to clear away. Five months later he hops a claim with regard to unfair dismissal on to the employer's desk. That is obviously a case that should be dealt with quickly, and certainly the employer should have some notice of the intention if the fellow feels strongly after the slagging match with the employer, manager, foreman or ganger. The least he or she might do is give some fulfilment to their bad humour, disappointment or frustration by hopping in a letter or notice, within a fortnight as suggested by Senator Quinlan, so that at least the manager, owner or employer is aware of the fact that the person feels aggrieved and he or she can put down on paper the employer's, manager's or foreman's version of what happened and have that note in the event of a claim being proceeded with by the employee.

I am impressed by Senator Quinlan's amendment. Without that sort of notice within a fortnight the employer is going to promptly forget about the matter. "John Daly" in his garage in Killarney will certainly have forgotten about the mechanic he had a row with who disappeared six months earlier and he would not have any cause to take a note of the facts surrounding that matter unless he has notice of it within a fortnight. If he gets such notice he can take a note of the facts because there might be a claim. When the claim is proceeded with he has a basis on which he can remove the onus of unfair dismissal. He can say he took a note at the time after getting notice from the employee and give his recollection of what happened. He is not going to have any recollection of what happened if the first notice he gets of this matter is six months after it happened.

The only point is that these jovial autocrats of Senator Lenihan's imagination, who fire people before dinner and may fire three or four more in a bit of overtime at night, whose memories of these dire events are recalled on the back of postage stamps or wherever else they may write the trivia of somebody being dismissed, these people must be brought to heel as quickly as possible. They certainly cannot be said to be assisting the climate of industrial relations. Presumably, their victims go on to other jobs at some stage and join trade unions and will add to the general bank of despair and antagonism which exists in certain quarters towards employers. If there are such, and presumably there are a small number who might conform to the descriptions of the Senator, I hope that once this Bill becomes law such employers will drop these rather casual ways as quickly as possible. If they do not, they are going to be in trouble under the provisions of the Bill.

It applies both ways.

It is a two-way traffic, except that there is a certain onus on the shoulders of the employer who initiates an action or says to an employee "You are no longer any good in that job which you have been in for years, you are out". We believe under this Bill that that decision should impose upon the employer certain obligations in relation to rationalising that decision. Senator Quinlan's amendment would not have any of these provisions applying to an employee in whatever circumstances who did not fill in a form within 14 days. By not complying with the 14-day provision none of the sections would apply.

Let us take the case of an employee who does not read a great deal and who has been accustomed for many years to taking a lot of abuse. I am sure there is not a Senator or a Deputy who has not come up against the employee who has been fired. The Senator or Deputy, meeting that constituent in a weekly clinic, would say to that person: "I am sorry, there is no legal remedy I can advise you of. Are you a member of a trade union?" If it then comes out that that person is not a member of a trade union, the Senator or Deputy must say there is nothing he can do. If we were to accept Senator Quinlan's amendment, then we would have to say to that person: "I am sorry. The requirement is 15 days. It is over the 14 days; there is nothing we can do. All the sections of this ambitious Bill do not apply to you because you should have known before now that you should have made application before 14 days."

The suggestion is that there should be a six-month period allowed in which persons would have a chance to catch up on their rights if they were ignorant of them. Is it not also part of the virtue of the six-month period that a person might decide that he or she might not have a case? There is the nark and the other side. There is the person who might have felt he had a case last week and this week considers the matter with a union official and accepts that he had no case. If a person was required to apply in a matter of days we could have the whole system choked with the ridiculous cases the Senator is worried about. I believe that the six-month period is not unduly long. It is not, on the other hand, too short and is the fairest compromise.

Surely the serving of a notice of intent does not stop the procedure? It is only a matter of letting the employer know.

The failure to provide the notice of intent means that the Bill cannot be invoked.

You could cover that legally.

You could cover that.

Amendment, by leave, withdrawn.

I move amendment No. 6:

In page 9, subsection (2), line 31 after "dismissal" to insert "provided that notice of intent to initiate a claim for redress under this Act has been given to the employer concerned within 14 days of the dismissal".

Amendment declared lost.
Government amendment No. 7:
In page 10, after line 2, to insert the following subsection:
"(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 will send copies of their recommendations to the tribunal and the purpose of it is to ensure that adjudicating procedures operate efficiently. I do not think it a very controversial amendment.

Amendment agreed to.
Government amendment No. 8:
In page 10, after line 27, to insert the following subsection:
"() 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 amendment is intended to remove any ambiguity which may exist about the functions of rights commissioners in relation to dismissals disputes and to ensure that these disputes are dealt with solely within the terms of this Bill. Again, it is not a controversial amendment.

Amendment agreed to.
Section, as amended, agreed to.
Section 9 agreed to.
SECTION 10.
Question proposed: "That section 10 stand part of the Bill."

There are a number of questions I should like to ask the Minister. I note that in section 10 (1) the right to institute and carry on proceedings in the Circuit Court is confined to the Minister. I appreciate the reasons for this. The Minister is anxious to ensure that there will be no vexatious litigation by persons who may have been ruled against both by a rights commissioner and by a tribunal. He is also concerned about the consequences of litigation by a person with no means which might create a situation in which judgment and costs might be given against the person making the claim and he would have no funds to meet them.

Is it wise to rule out completely the right of the person concerned to appeal to the Circuit Court? We may have little or no worries about the present Minister but this also refers to future Ministers. There may be future Ministers who would take a very conservative view of applying to the Circuit Court on behalf of any person who may or may not have been wrongly dismissed. If they do take too conservative a view it is likely that people may be done out of their rights, rights which would have been affirmed and established in a court of law if the Minister had taken action.

Is it the Senator's point that he does not wish to see the provision?

Is the Minister entirely satisfied with the situation in which he alone has the right to go to the Circuit Court on behalf of a person who claims to have been unfairly dismissed? There are further consequences from this which relate to other sections, such as the costs of proceedings, legal aid and so on.

There is no way out of that problem. The Minister is the only person who can take these proceedings. Does the Senator wish some further provision to be included in that section? The ministerial initiative is governed by facts outlined in the Bill. Granted the point that an element of interpretation is open to the holder of office at the time, it is pretty clearly laid down what the circumstances are in which there is reference to the courts by the Minister of the day.

Is it not an unfortunate consequence of this subsection that, in the case of a worker who thinks he has been wrongly dismissed and on whose behalf the Minister is not making an appeal to the Circuit Court, that person is also, by virtue of this Bill, prevented from taking civil proceedings for wrongful dismissal? In this kind of situation the person does not seem to have any remedy at all, even at his own expense.

Under section 10 (4) he could.

Under section 10 (2) there is a problem in a case where a court may decide that the appropriate redress is reinstatement. Is the Minister happy that the courts can and will operate such a personal procedure as reinstatement, which involves instructing employers to re-employ certain people on identical conditions and terms as they were employed beforehand and not to discriminate against them in any way? Is the Minister happy that this is practicable?

I thought it useful that that possibility should be there, even at that level. I know the Senator is aware also of this controversy whether under our existing Constitution these rights are there. We are assuming they are. We have been advised that it is covered.

Question put and agreed to.
Sections 11 to 13, inclusive, agreed to.
SECTION 14.
Question proposed: "That section 14 stand part of the Bill."

Section 14 (1) lays down that an employer shall give notice in writing of dismissal procedures to an employee within 28 days of the employee entering his employment. I would have thought that the dismissal procedures are so important that they should have been made known to every employee at the time he takes up his employment. Twenty-six or 27 days after he has taken up his employment the details of the dismissal procedures will be of purely academic interest to him. He will not have had an opportunity of making up his mind on the basis of those procedures before actually agreeing to take up the employment. Would the Minister not agree that this should be done, that employers should be required to give notice of dismissal procedures at the time at which they are actually employing somebody

The second point is in relation to section 14 (4), which makes it obligatory for an employer to give written grounds for dismissal to an employee within 14 days, only if so requested. I would have thought that the action of taking away a man's job and his livelihood should carry with it a positive requirement to give a written reason for a dismissal.

The first section was discussed with both sides. The union side were happy enough with the 28-day clause because there are practical problems here. At any rate unions are not unhappy with the provision of 28 days. They do not see it as an obstacle to acceptance. An employer could say, quite justifiably, that this is providing a further obligation under this Bill, under which he might claim he has too many obligations already. One might say fairly that such obligations as there are should be complied with in any case, irrespective of legislation.

I am quite satisfied about the 28 days. It is a practical necessity to give that period. This Bill has been criticised by many employer interests as being excessively onerous for employers. Even as put here in section 14 (4) many employers object to the requirement that the reasons should be given in writing. I believe that this meets the case here. I would not honestly seek to tighten it at that point. There is the provision here that the employer shall, if so requested, furnish to the employee within 14 days of the request, particulars in writing of the grounds for the dismissal. Remember that if the employee proceeds to act under this Bill, reasons for dismissal must be furnished in any case. This is simply a provision that would apply in all other cases.

Question put and agreed to.
SECTION 15.
Government amendment No. 9:
In page 12, after line 40, to insert the following subsection:
"(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."

These are provisions concerning dismissal under certain circumstances in the Anti-Discrimination (Pay) Act. It is possible that an employee might decide to make claims under both that Act and this Bill. I do not wish to interfere in the employee's choice, but this amendment is intended to avoid the possibility of duplicating awards in respect of the same dismissal and is simply to avoid confusion. This is an uncontroversial amendment.

Amendment agreed to.
Question proposed: "That section 15, as amended, stand part of the Bill."

I should just like to ask a question. As I understand section 15, it tends to force the employee to make a decision between strategies of action. In other words, if he takes the common law action he will not be entitled to invoke procedures under this Bill and if he invokes procedures under this Bill he will not be entitled to take a common law action. Is that the intention?

That is the intent.

I am grateful to the Minister. Is it wise to present an option such as this? I can think of a situation where, for example, in other kinds of law, such as in a case of injuries, the exercise of one option does not preclude the exercise of another option. I can think of a situation where, for example, there is a question of damages, and the fact that to initiate one course of action would preclude one from the other would be a limitation in terms of redress to the employee. I am thinking particularly of a certain category of employee. I should like the Minister to convince me a little more that it is necessary to limit the employee's options in this way.

We are providing adjudication machinery at tribunal level and at Labour Court level paid for by the taxpayer. I think it is a fair enough bargain that, if someone decides to take one course, he had better abide by it. We do not want a person deserting one course of action in midstream by saying he is dissatisfied with the service at this point and he takes himself off to the courts. The person has to make a choice as to which road he wishes to take. If he has any sense he will take this road, which is an advance on the common law position.

Question put and agreed to.
Sections 16 to 22, inclusive, agreed to.
Title agreed to.
Bill reported with amendments, received for final consideration and passed.
The Seanad adjourned at 6.15 p.m.sine die.
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