I would like to express my delight that the Seanad has been given the opportunity to initiate this legislation. It is a worth-while Bill and I am glad to speak in the debate. I express regret that there are not more Members present for the initiation of the Bill; I hope that will be rectified at the later Stages of the legislation.
The Bill covers substantive and technical matters and it is in essence a review of the unfair dismissals legislation introduced in 1977. It is important to point out that this amending Bill is necessary because of defects in the legislation which have come to light over the years. This Bill fulfils a promise expressed in the Programme for a Partnership Government and what was agreed in section 9 of theProgramme for Economic and Social Progress. This legislation is close to my heart as a Labour Party Senator. It is a valuable addition to the protection of employees.
The Bill contains 17 sections, each of which are important in their own right. I refer to section 5 which adds to existing legislation, that a dismissal is deemed automatically unfair if based on the race, colour or, for the first time, sexual orientation of the employee. As far as I am aware this is the first time that phrase has been used in legislation and it augurs well for future legislation.
This is an aspect of the Bill which, by virtue of its sexual connotations, has attracted media attention to the exclusion of other equally important issues in the legislation. For example, section 13 extends the scope of the unfair dismissals legislation to cover those employed through employment agencies. Prior to the Bill a worker who procured employment through an agency was deemed to be employed by that agency and had to look to the agency for compensation if unfairly dismissed by the organisation for whom he or she worked. That did not make sense and it did not take into consideration that an individual would have worked for different employers through the same agency. The change in this section is welcome.
Section 7 (2) (a) is also important. This allows a claim for redress up to 12 months where exceptional circumstances have prevented the lodgment of a claim. Through my work as a solicitor I realise that many people are unaware of their rights in this regard. They go through a traumatic period having been dismissed and it is often too late before they realise that they can initiate this move through the Rights Commissioners or the Employment Appeals Tribunal. It is necessary that this six month period be extended to 12 months. I welcome that provision in the legislation.
While I believe there is a lot lacking in this legislation in relation to unfair dismissals, there are several matters to which I would like to refer, for example, the use of the contract of employment which protects the employee. It clarifies matters for both employer and employee with regard to their respective duties and rights. Yet, such contracts are not widely used. People are often employed on the basis of a verbal agreement and when problems arise at a later stage there is no written documentation to back up one's position. There should be more emphasis on the use of contracts of employment in written form so that matters are clarified and each party knows where they stand with regard to their rights.
Another point which was referred to by Senator O'Toole is the lack of information and knowledge available to employees and employers regarding the rights and duties of both parties. It would be helpful if the Department would consider putting together a booklet which would spell out the basic floor of rights which apply to both parties and some simple procedures as to where one goes when dismissed. It would help in making people aware of what measures can be taken when the situation arises. In the long run it would act as a precautionary measure and thus avoid having to take matters to the Employment Appeals Tribunal.
I agree with Senator O'Toole when he recommended that the legislation needs to cover the Defence Forces. I understand they are, of necessity, in a special position but they are entitled to some protection in law. I accept the legislation may need to be amended to deal with their case.
I would like to speak on the rights of apprentices, something which has not been mentioned. I worked as an apprentice solicitor for several years before qualifying and legislation is needed to deal with this area of work. An apprentice is now protected with regard to trade union matters, but this legislation should also apply to them. It is a matter that needs to be considered.
The legislation does not cover a situation where notice is served on an employee. If an employee accepts that notice he or she is deemed to have resigned his or her post when, in fact, they have been dismissed. That matter must be dealt with. There is an anomaly here the Bill could have covered and perhaps it can still be considered.
Something which has not been mentioned so far is the right of a former employee to a reference. As I know from experience, that poses a number of problems for some employees. There should be legislation to cover that issue and give the ex-worker an entitlement to a reference following a hearing. It is a requirement in this day and age and it is not provided for in this legislation.
With reference to the Unfair Dismissals Act, 1977 businesses have evolved a procedure with regard to dismissal. In many cases they have adopted the procedure whereby the worker is given an initial caution and the right to a hearing. Several procedures have evolved over time to deal with what may be a dismissal and in many cases it has helped to avoid dismissals. That is helpful and should be encouraged where possible. It should be provided for in legislation.
Every section of this Bill deserves attention because each has an important role to play. Each section refers to areas of reform that were seen as necessary while operating the original unfair dismissals legislation. Section 3, for example, allows the Rights Commissioner to examine subsequent fixed term contracts and fixed purpose contracts. It prevents an employer avoiding the unfair dismissals legislation by using a fixed term contract which would be reintroduced at a later stage. A Rights Commissioner can now decide if he or she sees a second fixed term contract coming through that it has been used to get round the unfair dismissals legislation. This is another important amendment to the legislation.
In section 4 we see a lock-out can now be deemed to be a dismissal and legislation in relation to unfair dismissals automatically applies to that. That should be the case in fairness and I welcome that change.
I have already referred to section 5 and the matter of sexual orientation being considered for the first time as unfair grounds for dismissal. This section reinforces the concept of procedural fairness by providing that the Rights Commissioner, the Employment Appeals Tribunal or the Circuit Court can have regard to the reasonableness of the employer's behaviour. Senator O'Toole said that the matter did not take account of the conduct of the employee but that is automatically considered in the legislation itself.
Section 6 is important and provides for a basic financial award for unfair dismissals in certain circumstances. Compensation is normally only payable where one is deemed to have suffered a financial loss. A person may be dismissed and, unusually, happens to find a new job on the next working day. No financial loss is suffered yet she or he has been unfairly dismissed. This legislation allows such a person to claim compensation for the first time and that is a necessary provision.
Under section 6 (2) (c) referred to earlier by Senator Hillery, the system of calculating financial loss on payments to the employee will now disregard any payments made under the social welfare and income tax codes. That is necessary because the system for calculating payments is complicated. I have a major problem with the fact that compensation payments are still not sufficient under the present regulations and do not deter an employer from deliberately dismissing an employee on the grounds that it is financially more rewarding for him or her to do so. In section 7, we see that from now on the Rights Commissioner, in awarding reinstatement, re-engagement or financial compensation, which are the three remedies available for unfair dismissal, must state why the other two forms of redress were not awarded. In many cases people may say the reason is understood, but it needs to be spelt out. This section places an onus on the tribunal to decide why an option such as reinstatement is not possible and, therefore, will help to detect where the blame lies.
Under section 7 (2) (b) a person now has 12 months to initiate a claim for unfair dismissal. This extension is valuable because it brings the situation into line with other legislation. Six months was an extremely short period and in practice excluded many worthwhile claimants, who found themselves out of work but did not initiate, or have the knowledge to initiate, a claim. There is also a time limit now for objections by a party to the hearing of a claim by a rights commissioner. Under the 1977 legislation one could object to a hearing, but the new time limit is worthwhile because it helps to speed up procedures towards a swift conclusion which benefits all parties concerned.
The Employment Appeals Tribunal can under section 7 (4) issue a determination confirming the recommendation of a rights commissioner in circumstances where the employer concerned has not implemented the decision of the tribunal. I query the point of going through the same procedure again?