Dáil Éireann - Volume 293 - 04 November, 1976
Anti-Discrimination (Unfair Dismissals) Bill, 1976: Second Stage.
Minister for Labour (Mr. M. O'Leary) Michael O'Leary
Minister for Labour (Mr. M. O'Leary): I move: “That the Bill be now read a Second Time.”
This Bill sets out to correct a serious omission in our statute law in respect of the individual's right to fair treatment by his employer in circumstances where the employer either contemplates or has decided that he should be dismissed. As the law stands, the employer could proceed to implement dismissal in circumstances where the culpability of the individual worker need not be soundly based. The employees recourse up to now against the unjust dismissal lay only through action in the courts in which he would risk all the personal affront entailed by the law's delay. This omission in our industrial legislation has resulted in a number of dismissals occurring in which individual employees often with many years of service in enterprise to their credit lost their employment without due cause. Arguments about the rights and wrongs of such decisions leading to dismissals have led to costly strikes.
I am convinced that we must limit the area of arbitrary behaviour in industrial relations from whatever side it emanates. In its place we must institute codes of behaviour jointly obeyed by both sides in an enterprise  so that those who direct and those who implement will be guided by criteria based on justice and rationality. I am convinced that the adoption of such an approach will not jeopardise the efficiency of any business concern.
As the law stands, the employer has the absolute legal right to hire and fire at his discretion. He must, of course, give the requisite notice as required under the Minimum Notice and Terms of Employment Act, 1973, which provides for periods of minimum notice based on service. In practice, what has happened when an employee has felt aggrieved by the manner of his dismissal is that he sought the support of his fellow employees. Because no accepted procedures governing discipline in general existed, disputes have occurred in firms where large numbers of workers were drawn into disputes which primarily concerned an individual or individuals because of their conviction that an injustice had occurred. The probability of this consequence followed because the law was silent on the matter. Because of the law's silence the crude weapon of strike action was resorted to. Despite the best efforts of both the rights commissioners and the Labour Court disputes occurred affecting large numbers of people. These disputes owe their origin to the individual sense of unfair treatment in the matter of his dismissal.
The incidence of disputes relating to dismissals involves enormous social and economic costs to the individual, his fellow employees and the economy generally. In the years 1972 to 1975 there were 187 recorded disputes classified as relating to “engagement or dismissal, redundancies, etc.” in which 26,299 people were involved. These disputes alone accounted for over a quarter of a million man-days lost in industry. During last year over one-third of all man-days lost, that is 116,000 man-days, were due to these reasons. I do not suggest that all such disputes will be eliminated by the passing of this legislation but I would hope that the necessity to engage in industrial action will be lessened. To that extent the Bill will be of benefit to both sides of industry by helping  to remove dismissal cases as a significant factor in industrial disputes.
The provision of this legislation will apply to employees in all occupational categories, manual, white collar and technical employees at all levels from the shop floor to the managing director. In all about three-quarters of a million employees will be covered.
I have said that my objective is to limit the area of arbitrary behaviour in industrial relations. The Bill lists in detail criteria for unfair dismissals and sets down the forms of redress and the methods of adjudication on claims. The basic proposal of the Bill is that the dismissal of an employee will be regarded as unfair unless the employer can show grounds which justify the dismissal. In order to clarify this basic prescription and to make it easier for employees, employers and the adjudicating bodies to fulfil the spirit of the legislation, I have listed the criteria in relation to dismissals.
It will be unfair to dismiss an employee because of trade union membership or trade union activities either outside his hours of work or at times during work hours which are agreed by the employer. Dismissal will also be unfair if it arises from the religious or political opinions of the employee; civil proceedings against the employer which involve the employee as a party or witness; criminal proceedings against the employer which involve the employee as a complainant or witness; and the race or colour of the employee. In addition, where pregnancy is the sole reason for dismissal it will be unfair.
I mentioned that it will be for the employer to demonstrate that the dismissal was justified and he must show that it resulted from one or more of the following or some other substantial grounds justifying the dismissal:
—the employee's capability, competence or qualifications for the work he was employed to do,
—if his employment in his particular  job contravened statutory requirements.
An unfairly dismissed employee will, therefore, be entitled to re-engagement in his old job or in a suitable alternative job and the alternative form of redress to re-engagement will be an award of compensation within a maximum of two years' pay.
This redress available in the Bill should act as a deterrent by encouraging employers to think seriously before dismissing a worker— in fact, to ensure that dismissal is a last resort which must be shown to be fully justified. It is in this context that we can be reasonably sure that this legislation will help in reducing the number of instant dismissals—bearing in mind that at present industrial action is often the only practicable resort available to workers in disputed dismissal cases.
The adjudication process envisages three possible stages, involving hearings before a rights commissioner, an Employment Appeals Tribunal, and a final appeal to the Circuit Court. This provides an effective system under which disputes about dismissals would be investigated with a minimum of formality and expense.
I understand that fears have been expressed in some sections of industry that the Bill is biased against management. This is not the case. For the vast majority of managements this Bill need not present problems. I want to make it clear that this legislation will not give protection to employees who are clearly incompetent in their work or whose conduct at work is seriously detrimental to the performance of their job.
I hope that the passing of this Bill will give a further stimulus to the development of agreed disciplinary and dismissal procedures within firms and to their establishment in firms where no such agreed procedures exist. It is accepted by both sides in industry that there should be procedures, with graduated steps and sanctions with due warning, and the dismissal should be the ultimate sanction and applied only in most serious cases.
It is my belief that in addition to  procedures at the level of the firm there should also be a national code of agreed disciplinary procedures relating to dismissals. On the enactment of the Bill it is my intention to initiate discussions with representatives of trade unions and employers with a view to agreeing such a national code. This national code should suggest alternatives to dismissal and agree on a graduated scale of sanctions such as reprimands and suspensions, commensurate with perceived shortcomings. The code should also give guidance on appropriate appeals machinery within the firm. The main purpose of this code would consist in the achievement of agreement on both sides on necessary steps in grievance procedure.
There are limited exceptions in section 2 in respect of a few categories of workers. These relate mainly to employees at retiring age, close relatives, persons being trained by AnCO and to persons in public sector employment, many of whom have the benefit of dismissal procedures under other legislation. I am taking power to bring excluded groups within the scope of the legislation if this appears to be desirable at a future time. Section 2 also sets a qualifying period of one year's service with the employer concerned before the Act will apply. I have included an exception to this qualifying service requirement so that a woman dismissed on grounds of pregnancy can appeal even if she has less than 12 months' service.
I considered that it was desirable to clarify in the Bill the position about the termination of fixed term contracts. Broadly speaking, I have provided in subsection (2) of section 2 that a dismissal which represents the expiry of a fixed time contract cannot be disputed under the terms of the legislation. In subsection (3) of the same section, I have proposed provisions to make clear the position of employees working abroad.
The provisions of section 3 recognise the special relationship which exists when an employee is on probation or training and the accepted concept that he has to prove his worth  during a trial period. In specifying that the Act will not apply to such a dismissal, I have provided the safeguards that the contract of employment must be in writing and the duration of probation or training must be two years or less and be specified in the contract. Having regard to the rigorous training and tests which must apply for qualification as nurses or for para-medical employment, provision is also made whereby the Act will not apply to a dismissal during the initial training period.
Section 4 continues a concept enshrined in other legislation whereby employers who take on more employees than they require for training as apprentices will not face the possibility of unfair dismissal claims if the worker is dismissed within six months after the apprenticeship begins or within one month of the completion of the apprenticeship. In making this provision, I am anxious not to undermine the practice of some large organisations which take on more apprentices than they would need for their own requirements. These firms are performing a useful function for the benefit of the whole community.
Section 5 deals with dismissals by way of lock-out or for taking part in a strike or other industrial action. I have provided that dismissal by way of lock-out will not be unfair if the employee is offered re-engagement on resumption of work. In the case of strikes or other industrial action, I felt that some protection against victimisation was necessary for employees. In the return-to-work situation, there must be equal treatment for all participants. I have provided that if an individual is picked out for dismissal or if he is not offered his job back along with his colleagues he can claim unfair dismissal.
Section 6 sets out the criteria for unfair dismissal. As I mentioned earlier, it will be unfair to dismiss an employee because of his trade union activities, his religious or political opinions, his failure to be a member of a trade union, unless membership was a prior condition for entering the particular employment; civil or criminal proceedings against the employer  which involve the employee and the race or colour of the employee.
I am providing that dismissal will be unfair subject to certain conditions if it results from the pregnancy of the employee. The qualifying limitation of one year's service does not apply to this particular provision. This right is qualified to the extent that dismissal of a pregnant employee is unfair unless she was unable by reason of pregnancy to do her work or her being at work contravened some other legal requirement and the employer could not offer her another suitable vacancy or she refused an offer of suitable alternative employment.
I have provided also in section 6 that unfair selection for redundancy shall be regarded as unfair dismissal. I consider that this provision is very necessary to guard against victimisation of individual workers for other motives in a redundancy situation.
Section 6 provides finally that it will be for the employer to demonstrate that the dismissal was justified and he must show that it resulted either from one or more of the following matters to which I referred earlier or from some other substantial grounds justifying the dismissal:
(a) the employee's capability, competence or qualifications for the work he was employed to do,
(b) his conduct,
(c) redundancy, or
(d) if his employment in his particular job contravened another legal requirement.
I have provided in section 7 that if a dismissal is deemed unfair the employee is entitled to re-engagement in his old job or in a suitable alternative position and the re-engagement can be on the basis that continuity of employment is preserved. The alternative to re-engagement is an award of compensation, subject to a maximum of 104 weeks' pay. In determining the level of compensation account must be taken of the extent to which the employer or employee was responsible and of other guidelines, including the extent to which  the employer or employee abided by negotiated dismissal arrangements or complied with the code of practice relating to dismissal procedures approved by me and to which I referred earlier. Further recognition of negotiated dismissal procedures is given in section 14, to which I will refer later. I am taking specific power in section 7 to approve a general code of practice relating to dismissal procedures which could be a guideline to all employers and employees.
In sections 8 to 10, inclusive, I set out the proposals for adjudication on claims of unfair dismissal. While these may seem a little complicated, I intend to produce literature when the Bill becomes law which will leave employees and employers in no doubt about the procedures they should follow. I will ensure that the information literature will receive the widest possible circulation. The adjudication process envisages three possible stages, involving a rights commissioner, the Redundancy Appeals Tribunal, which is being renamed the Employment Appeals Tribunal under section 18, and a final appeal to the civil courts.
As Deputies will know, the rights commissioners service operates on a voluntary basis under the Industrial Relations Act, 1969, in areas of dispute which are not connected with pay or general employment conditions. The Redundancy Appeals Tribunal deal at present with minimum notice and redundancy dismissal disputes and my decision to assign unfair dismissal cases to the tribunal achieves a unity of subject matter relating to dismissals for adjudication purposes. I feel that the tribunal are the appropriate forum if dismissal disputes are to be removed from the area of industrial disputes. The third stage of final appeal to the civil courts is necessary in order to integrate the proposals with the existing legal system.
Section 8 provides therefore that a claim for redress for unfair dismissal must be initiated by an employee within six months of dismissal by giving a written notice to a rights commissioner—or to the tribunal if the  employee objects to a hearing by a rights commissioner. Either party may object to a claim being heard by a rights commissioner. In cases which come before him, however, the rights commissioner will make a recommendation in relation to a claim. If that recommendation is not carried out the employee may bring his claim to the tribunal which will make a determination in relation to the claim. I should mention here that there is separate provision in section 9 enabling either an employee or an employer to appeal to the tribunal against the terms of a recommendation of a rights commissioner within six weeks of the date of the recommendation. The tribunal will make determinations on all claims which come before it.
Section 10 introduces the third stage in the adjudication process, whereby if an employer fails within six weeks to carry out a determination of the tribunal, the Minister may institute Circuit Court proceedings on behalf of the employee for the remedies provided in the Act. The Minister will pay any costs imposed on him by the court. This section also provides that either an employee or an employer can on their own initiative appeal to the Circuit Court against the terms of a determination of the tribunal but in these cases the Minister would not be liable to pay costs.
On the question of costs, I should like to stress that other than any travel or subsistence costs which may arise no costs necessarily arise for either the employer or employee in the first two stages of the adjudication process. It is open to either the employer or the employee, at their own cost, to be legally or otherwise represented before the tribunal but it is not necessary and in fact, a very limited number of cases now coming before the tribunal involve legal representation. As I have said earlier, the only case under this Bill in which the State can bear an employee's legal expenses will be when an employer fails to carry out a determination of the tribunal; the Minister then takes the case to the civil courts on the employee's behalf and the courts might award costs against the Minister.
 Section 11 is a standard provision to facilitate the service of documents on corporate and unincorporated bodies in connection with proceedings under the legislation.
Section 12 accords priority status to compensation payable under the legislation in the winding up of companies or in bankruptcy.
Section 13 contains the standard provisions which prevent employers from avoiding the provisions of the Act.
In section 14, I give special recognition to the existence of negotiated dismissal agreements and require employers to give written details of such dismissal procedures to employees within 28 days of taking up employment. Similarly, any alteration in these procedures must also be notified in writing within a 28 day period. These requirements will, of course, be satisfied if the procedures are incorporated, for instance, in a staff manual which is handed to each worker immediately on taking up employment. I am also providing in this section, that where an employee is dismissed, the employer must, if he is requested to do so, give written particulars of the grounds for the dismissal to the employee within a 14 day period. There is a qualification to this in that any other substantial grounds, which would have justified the dismissal, may be taken into account by the adjudicating bodies when considering claims under this legislation.
At present the only legal recourse available to a dismissed employee is a common law action for wrongful dismissal. That right of action is preserved under section 15. In making available the simple and effective system of adjudication and redress under the Bill and in committing taxpayers' money to their operation, I consider that the employee can reasonably be required to choose between a common law action or a claim under this legislation. I have provided for such choice in this section.
I am taking power in section 16, subject to affirmative resolution of each House of the Oireachtas to amend certain provisions of the legislation, such as the extension of the  Act to any of those people excluded under section 2, variation of the maximum amount of compensation of two years' pay and amendment of the Act so as to comply with any international obligations in relation to dismissals which the State decides to assume.
I commend the Bill to the House and look forward to its passage.
Mr. G. Fitzgerald Mr. G. Fitzgerald
Mr. G. Fitzgerald: In the life of this Dáil we have had numbers of anti-discrimination Bills introduced, some were passed and others are at various stages and now we have the Anti-Discrimination (Unfair Dismissals) Bill on Second Stage this morning. Already on the Dáil Order Paper we have the 1975 Anti-Discrimination (Employment) Bill, 1975, introduced a year ago at First Stage and never advanced beyond that. One would be inclined to ask when we could expect to have the Second Stage. The other anti-discrimination Bill on the Order Paper is the Anti-Discrimination (Pay) (Amendment) Bill, 1976 and in view of the European decision at that time that knocked the procedure for the passage of that Bill, when the man that we are now pleased to have nominated as our President, pointed out the contradiction between any amendment here and European legislation, one must ask what is the reason for that anti-discrimination.
The Anti-Discrimination (Unfair Dismissals) Bill, 1976 is before the House this morning. In my opinion any Bill that would help towards improving industrial relations, protecting the individual rights of people and the establishment of a code of practice would be a step in the right direction. I have very serious reservations on many sections of this Bill and on Committee Stage we will be proposing amendments in an effort to tidy up what we consider to be legislation that could have done with more thorough investigation and more detailed examination. I am a little concerned that a surfeit of legislation might be a disincentive to employment. This has been commented on by many trade union people who are concerned at present about our high  unemployment figures and about any disincentives that may be created.
Nonetheless, I believe this type of Bill is necessary but the Minister must realise that we can never hope to legislate ideally for good industrial relations. In the past industrial disputes have taken place over trivial issues. All that the Minister hopes, and I support him in those hopes, is that some of the sections in this measure will contribute towards a reduction of man-days lost. I make the point—I made it many times before in relation to other legislation—that a Bill of this nature which is aimed at protecting the rights of workers should be phrased in as simple language as possible. The Bill at present is not phrased in simple language. I do not want to see this Bill become a bonanza for the legal profession. This would probably mean a complete change of existing procedures in Bill draftsmanship for the Minister but any worker should be able to satisfy himself as to his or her rights under this Bill. The terminology at times is confusing and sometimes even contradictory. The ideal situation is that nobody should ever be unfairly dismissed.
It could be said that any limitations or exclusions in this Bill would imply that we in this House are giving certain freedoms of dismissal. Human nature being what it is, human frailty being what it is, an ideal situation does not exist and certain safeguards have to be built in. One must decide how far to go with some of these safeguards because the employer-employee relationship, the trade union-employer organisation relationship that has existed has, for the most part, been quite a good one. The flexibility of that system has possibly helped it to a great extent. I am not saying it is perfect—indeed, it is not—but what system is ever perfect? As I said earlier, if there are any areas in which this Bill can be of help, I would be delighted to be of assistance, but one must allow a certain amount of flexibility to continue in that system and not legislate to tie completely the hands of trade unions or employers.
 This Bill covers a very wide area. I look forward to the Committee Stage when we will obviously have to thrash it out and get explanations from the Minister on the very many areas of the Bill where one could express doubts. This morning the Minister said that:
As the statute law stands the employer has the absolute legal right to hire and fire at his discretion.
This, of course, is true but has not been practised to too large an extent. Indeed, I would condemn such a practice and the trade union structure has probably provided a safeguard against this practice on too wide a basis.
The Minister also said:
The incidence of disputes relating to dismissals involves enormous social and economic costs to the individual, his fellow employees and the economy generally.
I am surprised that he omitted the company, or the business, or the industry concerned. I agree with him to a limited extent, but I would also include the business, or the company, or the industry concerned. I have always been a firm believer that nobody ever wins in a strike situation. In fact, everybody loses. I believe that any steps we can take here to encourage or improve industrial relations would be very useful, always bearing in mind that we cannot legislate rigidly for their application. A substantial degree of flexibility must remain.
The Minister said three-quarters of a million employees will be covered. I take his word for that. I presume his statistics are correct. When one looks at that figure and the many groups excluded under section 2 and other sections, one would be inclined to think the total would be greater than the workforce that we are supposed to have. I am concerned about one matter. I do not want it to be taken that I am supporting a situation which exists in reality. I am talking about the small employer, the farmer, or the small shopkeeper. Assuming he gets into financial difficulty and he can no longer keep on his employees, or perhaps his business or  farm is running down, what is his position under the Bill? Can he be safeguarded in some way? Naturally he would not be in a position to meet the 104 weeks' pay provision. I am not referring to any person who may be exploiting young people. A Bill dealing with the protection of young persons' employment has been hanging around the two Houses since about 1974 and it still has not become law. I am talking about the genuine person with a little business, or a farmer who may have had one or two employees and who found he was no longer able to retain their services. I appreciate that the Redundancy Act would cover such persons, but they may not qualify for the lump sum payments suggested in this Bill.
On Committee Stage we will have a worth-while and exhaustive discussion on many sections. I should like to express a few opinions for the Minister's consideration. We will be submitting amendments for Committee Stage. Section 2 deals with exclusions. There are quite a few exclusions which one must question very closely. I am talking broadly about the public service, the Garda, the prison officers, the civil servants, the staff of the Houses of the Oireachtas, the officers of local authorities and the officers of the health boards. I question why they are excluded. Under section 16 the Minister may, by order, amend section 2 and include any categories he so wishes. I fully agree the Minister deserves to have that entitlement.
I question very many of the exclusions. Why is the public sector excluded?
The Minister said that sector is covered under existing legislation. Now that we are introducing new legislation to cover unfair dismissals, we should discontinue discrimination or division between public servants and public officials and workers in the private sector. Local authority exclusions refer only to the officers so it appears employees are included. Why not include the officers? Why not make it an all-embracing provision where they are concerned? There are other exclusions. Only a few specified individuals are excluded.  Mainly groups are excluded. Section 2 (1) (d) refers to the Defence Forces. Possibly Deputy Dowling will have a few words to say about that. Other Members will have comments to make on the exclusion of the chairman of the Army Pensions Board. That was one of the most disgraceful acts performed by this Government and I am sorry to see the Minister in this Bill allowing the type of situation which developed in that area a few years ago to continue. However, I am sure other Deputies on these benches will elaborate on that incident.
Of course the Garda Síochána are excluded, but I want to come to paragraph (c) of section 2 (1) which refers to the exclusion of relatives. I see no reason for the all-embracing terms of this exclusion. I would certainly be prepared to listen to a more confined exclusion of relatives but in a straight line relationship, say, between brother and sister, there have been many unfair dismissals. I have seen too many hardship cases to accept what is here, but if the Minister would guarantee that there would be a compulsory social welfare scheme available for those people I might be prepared to accept the provision. It is unjust that, in the case of two brothers one of whom is the boss, the other brother is put out of employment with absolutely no financial entitlement. I do not believe it is right to exclude such people from the Bill. As I say, I am prepared to accept the exclusion of some relatives but not the comprehensive exclusion provided for here.
Paragraph (a) of section 2 (1) refers to the person who is dismissed after less than one year's continuous service with his employer. One can look at this in a number of ways. Some people will say the period is too long, others that it is too short. I would ask if it covers the situation where a firm or small business which employs a person for 20 years is taken over by a new employer? Is the 20 years' service discounted or will the Redundancy Act cover the situation? It would appear that there is a breakdown here in regard to continuity.
 Under section 6 (2) (g) there is an exclusion relating to pregnancy. I realise the Minister's reason for having this in the Bill, but is there a danger of discrimination here against the married woman? It appears to me that under this Bill it would be an unfair dismissal, except in exceptional circumstances, to dismiss a person if, say, two days after she had been employed it was discovered that she was pregnant. While I see the Minister's dilemma, my concern is that the possibility of pregnancy will discourage people from taking married women into employment.
In regard to domicile outside the State this can be interpreted very widely, particularly in our context where people may be working in Northern Ireland and living in our own country. This may need further examination.
Section 3 seems to exclude people who, in my opinion, should not be excluded. Subsection (1) reads:
This Act shall not apply in relation to the dismissal of an employee during a period starting with the commencement of the employment when he is on probation or undergoing training——
Does that mean that probationary teachers or trainee nurses are excluded? I do not think that such people should be excluded for the entire duration of their training from the provisions of this Bill. It is discriminatory and we shall be putting down amendments in this regard.
As well as that, if I may return briefly to section 2, vocational teachers appear to be excluded, and I am wondering about the position of secondary teachers in private schools in many areas of the country.
Section 4 deals with apprenticeship. I often wonder when Bills come before the House whether adequate research has gone into them. Are we pushing them out hastily? Have we the Labour hustings in Limerick in mind in trying to put Bills quickly before the House in order to placate the party faithful, perhaps at the behest of the former general secretary of the Labour Party who would be encouraging  the Minister to do things like that?
Mr. Halligan Mr. Halligan
Mr. Halligan: He does not need any encouragement from me.
Mr. G. Fitzgerald Mr. G. Fitzgerald
Mr. G. Fitzgerald: The apprentice can be dismissed within six months of commencement of training. If the job has been arranged through AnCO, does that give the employer adequate time to assess the suitability of the apprentice for the employment? Where I think a greater danger exists, especially in the present climate, is that on the other side of the coin, he can be dismissed one month after the completion of apprenticeship. Despite what the Minister may think at times, there are quite a number of employers with a social conscience. These people may have one or two apprentices who have finished their time and for whom they have no further work, but having a social conscience they are prepared to say: “We will keep you until such time as you get an alternative job. We will give you a few months to look around.” This Bill will stop that, because the employer who keeps the apprentice on after one month is faced with the unfair dismissal situation. Human nature being what it is, the employer will use the escape from that and dismiss the apprentice within one month. I think that is an unwise exclusion.
Section 5 is more related to tidying up that can be done on Committee Stage. One might consider reinstatement or being re-engaged in a different position which would be reasonably suitable to him. Has he sole discretion? Who adjudicates on whether the position is reasonably suitable?
Section 6 deals with unfair dismissal and again it calls for tidying up and being made more specific. It spells out the circumstances in which an employee is entitled to claim he has been unfairly dismissed. One cannot complain about that except perhaps in regard to details of wording that can be discussed at a later stage. Subsection (2) (g) refers to pregnancy and while the terms and language used may be legally and technically correct, it takes a great deal of reading to  understand it. Subsection (4) refers to dismissals that are not unfair and here the Minister has a good deal to do between now and Committee Stage as regards making matters clear. It refers to capability and competence but there are no definitions of them. Surely there must be some definition difficult though it may be; otherwise people will be forever arguing as to what competence means and what capability means. Should “qualifications” be there? Surely a person either has or has not the qualifications for a job. If he is deemed in the first six months to have the qualifications, surely he does not cease to have them suddenly. I question the wording there.
“Conduct” also comes into it. I am sure we could argue here at length as to what was good or bad conduct, whether dismissal was merited because of some specified conduct and so on. This must also be considered in greater detail. We come then to the question of redress for unfair dismissal and the compensation or re-engagement for a specific period. I am a little worried about defining a period of two years. One can look at it from two sides. Could a strong employer who wished to dismiss a man avail of the two years' wages provision to rid himself of somebody that he wanted to be rid of? On the other hand, if it is a case of a highly-paid person, a managing director or somebody like that, perhaps 104 weeks' salary is a very heavy penalty on a firm. I should prefer a somewhat flexible provision. While I agree that 104 weeks should be the maximum I think that 104 weeks will become more or less established procedure. Experience has taught us that.
The different references to the claim again seem to be matters for Committee Stage. One wonders if one is justified in having the rights commissioner there at all. I am all in favour of it but what I am getting at is that under the terms of the Bill he can be by-passed and the tribunal can determine findings or recommendations. One could think, looking at the ease with which the rights commissioner can be eliminated that the procedures in the Bill should be re-examined.  There is the situation where the Circuit Court can be involved in an appeal, or if the person wishes he can take the case to court under the old system. I think experience here has shown that proceedings taken against unfair dismissals are always taken at high management level. Perhaps it will be an advantage for the person on the shop floor who may fear litigation to have these facilities available to him.
Wide powers are being taken by the Minister in section 16. One wonders if these powers are dangerously wide without the opportunity of anything but an order being made under them to amend certain sections. I am particularly concerned with subsection (5) which reads:
The Minister may by order amend any provisions of this Act so as to comply with any international obligations in relation to dismissals that the State has decided to assume.
While it may be ideal for the Minister to have this in the Bill, now with our accession to the EEC we have in this House a Joint Committee on EEC Legislation. One would think that this committee should be consulted if such a step were being taken by a Minister. While I appreciate that the draft order will be laid before the House or an opportunity given to the House to discuss it, I do not think that happens soon enough. If such an order is being made, the committee should be consulted. Again, that is a matter mainly for Committee Stage, which I believe will be quite interesting. It is important that adequate time and attention be given to it and I hope the Minister will accept some of the amendments we shall put forward. I think we can improve the Bill by spending time on it here so that when it eventually leaves the House, as outlined by the Minister and improved by us, it will contribute to improved industrial relations.
As I said earlier, we can never legislate for them but we can help and encourage. We must allow a certain flexibility to remain at all times. If we can remove some of the existing problems it will be worth while.
In this area there are some sections where we might create problems and  this we must guard against. It is very difficult in a small country like this. I fully accept the difficulties created for any Minister occupying the position of Minister for Labour. I appreciate the fact that we have a mixed economy. We have a wide range of industry and employers, small, medium and large. The small employer scattered throughout rural Ireland, providing a useful service in a town or village, is the one I am concerned about under this Bill. I appreciate the difficulty the Minister can experience in excluding him, but the Minister has to observe certain standards and restrictions. Whether or not we can embrace him under the Bill as it stands I am not quite sure. It might harm him if we did that. I am satisfied that this Minister or any other Minister would not deliberately set out to harm anyone who is providing a service to the community.
Mrs. Hogan O'Higgins Mrs. Hogan O'Higgins
Mrs. Hogan O'Higgins: I hope the House will bear with me for a while because I have little or no experience of industrial employment. There are a number of industries in my constituency and I am familiar with some of the problems of employees. I am always amused by Opposition speakers who bemoan the fact that only now after so many years of Coalition Government are we getting an anti-discrimination Bill. I should like to remind Deputy Fitzgerald, although he was not in the House in the 16 years before this Government came to office, that his Party were in Government for 16 years and did nothing about anti-discrimination legislation.
When I think of anti-discrimination legislation I think in terms of the female. Heretofore discrimination against female employees was common. This Bill creates a delicate balance of fairness between employee and employer. The trade unions have always tried, successfully in many cases, to protect the employee but the employer seems to have been neglected. On Committee Stage I shall have a great deal more to say on this Bill.
I do not believe, as Deputy Fitzgerald  does, that the Bill will increase discrimination against pregnant women; indeed, I think it protects them. With more married women working this type of protection is necessary. Girls are marrying younger and employers will have no alternative but to employ them. Deputy Fitzgerald also says that nobody should be dismissed unfairly. We do not live in an ideal society and life can be very unfair. Employers are only human and in many cases there are unfair dismissals. For the first time employees have the right of reply under this Bill. They can appeal to the rights commissioner, the tribunal and finally to the civil courts. The fact that the Minister will pay the costs of a civil case gives absolute protection to the employee. As everybody knows, litigation is expensive and slow. Lower paid employees are slow to resort to the courts because of the cost involved. This is a great step forward.
In regard to redundancy, I have been told that women employees are always the first to be selected. That is unfair selection and this Bill protects them. There is no doubt that we live in a male oriented society. No matter what women's “libbers” say, it still exists. I do not believe in the extreme views of the women's “libbers”. I believe that men and women should complement each other and not devour each other. Men and women should be employed on their ability. A man or a woman should only be engaged to do a job that he or she is capable of doing.
The 14-day period for giving a reason for dismissal is a good point and should apply to the civil service as well as to other employers. When a Deputy makes an inquiry in regard to the dismissal of an employee, he is usually told that it is not the custom to divulge the reasons for the dismissal. All employees who are dismissed should be given in writing the reason for their dismissal. If they are good enough to do the work they are good enough to be treated as human beings.
In many ways this Bill will help to prevent strikes. When an employee is dismissed everybody goes out on  strike. Therefore, the appeal clause will help both employee and employer, industry and the country in general. I welcome the Bill and hope it gets a speedy passage through the House.
Mr. G. Fitzgerald Mr. G. Fitzgerald
Mr. G. Fitzgerald: Under section 6 can employers be prevented from dismissing employees on marriage? There are still some companies that insist on girls resigning on marriage.
Mr. Callanan Mr. Callanan
Mr. Callanan: I should like to ask the Minister if temporary and permanent staff are covered under this Bill?
Mr. M. O'Leary Mr. M. O'Leary
Mr. M. O'Leary: All those included are set out in section 6.
Mr. Callanan Mr. Callanan
Mr. Callanan: Does that include temporary staff?
Mr. M. O'Leary Mr. M. O'Leary
Mr. M. O'Leary: Short term contracts are not included.
Mr. Callanan Mr. Callanan
Mr. Callanan: I welcome this Bill but am uneasy about certain aspects of it. We have the habit of making pious resolutions but we are not all fair-minded. Human nature being what it is there is the difficult question of interpretation. The Bill is completely subject to interpretation. I am asking if temporary employees are included. I am afraid—particularly in regard to small business people—that if everybody across the board is not included there will be very few permanent employees with small industries and business people because such employers might be afraid that if the industry or business went down it would not be that easy to dispense with an employee. It would be unfair to dismiss a temporary employee without giving good reasons why one was getting rid of his services.
The major problem I see in the Bill is in regard to its interpretation. For instance, there enters in the qualification of a person, again something that is open to interpretation. An employer wanting to get rid of employees could very easily use the excuse that they were not qualified. Then there is the question of conduct in respect of which various interpretations could be brought into play if one wanted to make the case that a person had misconducted himself.
While I welcome the Bill, I foresee  many problems in its implementation. It is when one begins to put theory into practice that one runs into the question of different interpretations. Who is to interpret these questions? Allowing for the appeals which exist involving hearings before a rights commissioner, one can eventually end up in the court. I approve also of the provision that if an employee does not agree with a decision of the rights commissioner the State enters in to pay his expenses.
As Deputy Hogan O'Higgins said, this is a Committee Stage Bill. Perhaps the Minister would consider seriously setting up some type of committee. If I am an employer and see something wrong in respect of one of my employees, I should like to be able to discuss it before dismissal takes place. It is when the dismissal has actually taken place that all the trouble starts. It is then that it is difficult to get an interpretation on the charge of misconduct or that of not being qualified for a particular job. Before a dispute occurs I should like to see negotiations being entered into or advice being obtained from the people concerned. The same goes for the person employed. If he or she can say: “I am about to be dismissed on such and such grounds, what are my rights in this case? give my qualifications”, it might all be settled before dismissal actually takes place.
I should not like it to go out that this Bill would prevent people from taking on personnel for training purposes. At present many people are being taken on. I have got people into businesses where there has not been a lot of work for them. People have agreed to take on unemployed people. Many youngsters are being taken into employment. They might expect a lot better but they are very glad to get anything. Would there not be the danger that such business people would begin to worry about taking on such personnel? This Bill would need to be very fully explained to them. As Deputy Hogan O'Higgins said, one has to strike a balance between what is fair to the employer and the employee. We all know that people have been wrongfully dismissed in the past.  It is only right that there should be protection but the amount of protection that can be afforded is the all-important point.
The whole question of interpretation is what worries me. I am a member of a local authority. We made planning decisions. Planning Bills were passed here and officials had to interpret them. In some cases they were interpreted entirely differently from what the spirit meant. That is why I am worried about the interpretation of one's conduct, ability or qualifications. I want to know what code will be laid down in that respect because the whole Bill stands or falls on that point. For instance, if when there is disagreement between a trade union and an employee the rights commissioner involved in an appeal comes forward and says: “Yes, this person is qualified” and the employer says: “He is not qualified”, is that binding? I assume it is. I assume that if the employer does not accept the ruling, the State will pay the expenses of the employee to take it to the courts.
We would need to be very careful because there are so many different categories of persons employing people. Factories, small businesses, small farmers take people on for a while who might be afraid they did not understand the provisions of the Bill. The Bill merely seeks fair play but the whole interpretation of fair play should be thoroughly explained so that it would not turn employers from taking on prospective personnel. I do not think the Bill covers a sufficiently wide range of people; it should go right across the board. Too many people are excluded from it. Deputy Hogan O'Higgins said there is no point in people standing up and criticising the Bill. I want to make it clear that I am not criticising it. I welcome it. But they are the practical applications of the Bill about which I am worried and in respect of which I should like some information from the Minister. Like Deputy Hogan O'Higgins, I will have a lot to say on Committee Stage in order that I may understand its practical implications. I am not saying that the Minister is infallible or could give me answers off the cuff here today. When a set of directions is laid  down theoretically, it is only when one begins to put them into practice one runs up against stone walls. I am afraid one will run up against a few stone walls in the implementation of this Bill. I do not say that for the purpose of throwing water on the Bill. This House, the trade unions and employees should be able to discuss it seriously. A political football should not be made of it. We are here to introduce legislation for everybody's benefit and to ensure fair play. I merely pose those questions to the Minister in the hope that the Bill, when it leaves this House, will be a useful one. It is not fair to say that anybody on this side of the House wants to make political propoganda out of or throw water on the Bill. I did not stand up to do so and I do not do it now. There is a lot of looseness in this Bill. I merely wish we could say: “We have a perfect way of putting that into law and there are no snags involved.” If this Bill does anything to stop trade disputes I can assure the Minister that it will receive my support and the support of every Member.
Mr. Pattison Mr. Pattison
Mr. Pattison: I am one of those who feel that we cannot have too much of this type of legislation. I welcome all legislation which protects the right of the employee in his employment. I am not saying that there was a great deal of injustice committed in this area in the past, but some injustices were committed and in this regard there was a serious omission in our legislation. However, the trade union movement, in consultation and in negotiation with the various employer organisations and with individual employers, have prepared workable and sensible dismissal procedures. As a result of this, satisfactory agreement has been reached in many cases where dismissals would otherwise have taken place.
The Minister told us of the number of man days lost as a result of trade disputes arising out of the dismissal of employees but, unfortunately, the Minister's Department does not have the statistics which would show the tremendous work done by the unions  in negotiation with employers in solving problems in this area. The number of problems solved in relation to dismissals far exceeds the number of man days lost. I do not mean to put forward the view that this legislation is not necessary. It is very necessary because even though the majority of employers are good and progressive in their relationships with employees, there are some who have taken advantage of every situation to effect unfair and unjust dismissals and who take other forms of discriminatory action against employees. When we think of the fact that in 99 per cent of cases employees are totally dependent for their livelihood on their employers we can realise the seriousness of a dismissal, particularly when alternative employment is not easily available as at present. It is more important than ever that nobody should be dismissed except for the gravest of reasons which must be proved to all concerned.
As previous speakers have pointed out, this is a Bill which will be discussed in greater detail on Committee Stage and many of the points raised will come up again on that Stage but I should like the Minister to deal with the general comments I shall make on the Bill when replying to Second Stage. The most important thing in procedures of this kind is the necessity for swift action because when a dismissal which appears unjust to the majority of the fellow workers of the employee dismissed occurs, it is difficult to contain their feelings about the dismissal. For that reason it is necessary to put into this legislation provisions which would make it mandatory for such an employee to be retained in employment pending the outcome of this procedure. There are cases where employees are not given dismissal notices and many methods are used by a small minority of employers when they want to dismiss unfairly or get rid of some workers. Such employers can make conditions intolerable to the extent that an employee breaks down and gives in notice. I am not too clear whether such a situation is covered in the Bill but we can be certain that as soon as this Bill becomes law some  people will search for the loopholes. An employer can make conditions, not necessarily physical conditions, intolerable for an employee. I hope that any loophole in that area will be closed off effectively.
Exclusions have been mentioned and I am satisfied with the Minister's statement that after the passing of the Bill he will examine the matter in practice and that if necessary he will extend the legislation later to cover other categories of employment. I agree with Deputies who expressed concern about the exclusions, particularly in regard to trainee nurses and paramedical employment. It is true to say that most of the cases excluded are covered by fairly adequate procedures but I do not like to see so many exclusions in the initial stages.
Deputy Fitzgerald mentioned apprentices. He may have overlooked that there is provision in the Redundancy Act that may have acted as an encouragement to employers to let off apprentices within a month of their having completed their time. That Act states that an employer who makes an apprentice redundant within four weeks of completion of his apprenticeship is not liable to pay a redundancy lump sum or weekly payments. This Bill keeps in step with that provision and there is something to be said for and against that situation. Some employers are inclined to hold on to apprentices who have completed their time for a year or two afterwards, but because of the provision in the Redundancy Act they may feel obliged to let them go before the four weeks have been completed because if they did not they would be liable for full redundancy compensation.
I should like some clarification in regard to already established dismissal procedures where they are in most cases more favourable to the employee than the provisions in this Bill. I appreciate that the Bill must take a middle course and that it may not go as far as we should like it to go. I should like to know the position in the case of agreements under which the employer has discretion only in respect of dismissal within three months or six  months. When this Bill becomes law can that employer take advantage of the 12-month period? To my mind the 12-month period is a bit long, although I appreciate the problems facing the Minister who must try to get generally acceptable and practicable proposals.
The Bill is mainly aimed at areas in which there has been absolutely no protection. The exclusions in it have at least some protective procedures. The existence of common law protection does not amount to anything because no employee can afford to avail of it and the law is so vague on this matter that it is very difficult for a case taken to succeed. I hope this Bill will not take the place of more favourable agreements. I hope that it will deal with cases where no protection at all has existed.
Before Committee Stage I should like clarification on whether it is an individual decision of an employee to avail of the machinery provided here or whether it is to be a majority decision in the workplace. It happens occasionally that a dismissed worker genuinely and sincerely thinks he has been unfairly dismissed but the majority of his fellow employees would not support him in a dispute with the employer. This type of situation has been overlooked in various comments and reports. It has been held generally that when someone is dismissed a dispute exists and that his fellow employees walk out whether a person has been dismissed justly or unjustly. That is not the position. In my experience I have found that workers are responsible and that before they take any decision they weigh all the evidence available to them. It is only after serious consideration of the case that they will take the decision to strike. I would like to have a point clarified: is it up to the individual or the majority of his fellow employees to decide if he has a case for the rights commissioner and the appeals tribunal?
Deputy Hogan O'Higgins mentioned the case of girls being dismissed first; in other words, discrimination is practised in that area. I would like to extend that to include discrimination on age grounds. It happens that  people can be made redundant because of their age. To my mind that is as discriminatory a practice as that mentioned by Deputy Hogan O'Higgins.
There is another point I would like to have clarified. What happens if one person is to be made redundant and a decision is taken to let go a single person as against the married person? Some people might interpret that as unfair dismissal. There are provisions in this Bill which say what will or will not in a certain situation and at a certain time and place be an unfair dismissal. When this Bill is passed it will be important that details be readily available to all concerned. The Minister said he will make leaflets available but he should take steps to ensure that a notice outlining the main provisions of this Bill are posted in every work place. This is done in relation to the Factories Acts and certain provisions of the joint labour committees and industrial committees of the Labour Court. Everybody can see from these notices the conditions under which he or she is working and the procedures to be followed if any problems occur. I would like the Minister to make it mandatory prominently to display a notice outlining the Bill's provisions.
A fund should be set up to pay compensation to employees. Particularly under the Minimum Notice Act it has happened that employees awarded sums under that Act were not able to get them because their former employers had gone out of business, had no assets or perhaps had even left the country and there were no funds from which those people could get what had been awarded to them. In this case there is no fund from which people can be paid. To get money a person must go to court. It may be possible after one or two years for the employee to get the money to which he is entitled but it is when he has been unfairly dismissed that he needs the money, not at the end of a long legal process. There might be some way of getting over that problem.
I do not see any of the difficulties envisaged by some speakers about the  provisions dealing with female employees who became pregnant. I do not share the concern of those who have expressed the view that this Bill will militate against the employment of females. It would be unfortunate if that provision were not included in the Bill. I welcome the provision that pregnancy will not and cannot be used as a reason for dismissal. At present the situation is very unsatisfactory because when female employees look for maternity leave, normally a minimum of three months, they are told: “You may have your leave but we cannot hold your job. The work must go on. We must get someone to take your place. After your maternity leave we will see if we have a job available for you.” That is the attitude in a number of cases at present.
When the girl reports back for her job she is told: “We are sorry. We filled your position. You will have to go on a waiting list and you will hear from us in due course.” In most cases “in due course” turns out to be never. In addition, if a girl goes to the labour exchange to claim benefit she is disallowed automatically because she is held to be unavailable for work by reason of having to care for a child. The next step open to her is to take her case to the appeals machinery. At that stage the matter is outside the responsibility of the Minister for Labour. However, I welcome the provisions of the Bill dealing with this aspect of employment. It should lead to the employment of more women because for every four girls employed in a concern the liability for maternity leave would amount to 12 months combined and this should create a job for an additional woman.
Mr. G. Fitzgerald Mr. G. Fitzgerald
Mr. G. Fitzgerald: So long as all four were not absent at the same time.
Mr. F. O'Brien Mr. F. O'Brien
Mr. F. O'Brien: Deputy Pattison is boosting the population.
Mr. Pattison Mr. Pattison
Mr. Pattison: I expect that employers will adapt to the new situation and that any problem which may arise can be sorted out. Another area in respect of which problems can arise is that of the conduct of an employee outside his hours of work. I expect  this would be a matter for the rights commissioner and the Appeals Tribunal but it is desirable that the legislation in this regard would not be left as wide as it is. I have in mind in particular the worker who breaks the law and is sent to prison for a month or, perhaps, 12 months and who, on his release, finds that his job is no longer available although he may have been in that employment for up to ten or 20 years. By serving his sentence he will have repaid his debt to society and the deed for which he was sentenced might have no connection whatever with his work and, consequently, would not affect his employer's interest in any way. For such a person the greater penalty by far for himself and for his family is the loss of his job. Therefore, I should like to see some provision in the Bill to deal with such cases rather than to leave the reference to “conduct” as wide as it is. It has happened in the past that employers have used employees' convictions for misdemeanours unconnected with their work as an excuse for dismissal. This sort of situation leads to much argument between employers and the representatives of the workers concerned.
I should like, too, to see some provision in the Bill to deal with the question of demotions because very often demotion and dismissal can be so closely related as to mean the same thing. I say this because by being demoted a worker's conditions can be made so intolerable as to force him to leave his employment. Unfair demotions give rise to disputes both official and unofficial. The provisions of this Bill should be extended to take account of changes in work performed by an employee which clearly are to his detriment.
I welcome the Bill because it fills a very serious gap in the area of the protection of certain employees. Also, I regard it as a beginning of legislation of this nature. I trust that there will be further legislation in this field as time goes on and when we have seen how this legislation works in practice. The Bill should be welcomed by both sides in industry. As the Minister said, it is legislation that will not  present any problem for the vast majority of managements.
There is a further point I should like to make about the lock-out situation, that is, at what stage does the lock-out become a dismissal? The provision regarding lock-outs in this Bill is that the employee is re-engaged on resumption of work but I have known lock-outs to go on and on indefinitely and resumption of work, in some cases, never happens. It is just a lock-out full stop. At what stage can an employee in such a lock-out situation have the option to claim compensation on the basis that he is dismissed?
The remaining points I have to make would be more appropriate on Committee Stage when I am confident we will have a very useful discussion on most sections of the Bill.
Mr. Dowling Mr. Dowling
Mr. Dowling: I should like to add my voice to the voices of other speakers, particularly that of our spokesman on labour, Deputy Fitzgerald. The Minister said:
In the years 1972 to 1975 there were 187 recorded disputes classified as relating to “engagement or dismissal, redundancies, etc.” in which 26,299 people were involved. These disputes alone accounted for over a quarter of a million man-days lost in industry. During last year alone over one-third of all man-days lost, that is 116,000 man-days, were due to these reasons.
This is an indication of the seriousness of this legislation. When we examine the situation in relation to dismissals, we must also look over our shoulder at the question of employment. Legislation of this nature in connection with workers' rights is a sensitive area. It is only right that legislation should be updated to ensure that the unsatisfactory loopholes which were availed of by employers are sealed off. Over the years efforts have been made in a variety of Acts to give workers rights. In the Conditions of Employment Act, 1936, and in other Acts, we have endeavoured to give workers certain rights and conditions. On the basis of what this  Bill seeks to achieve, it will certainly have the support of this House.
I will not deal with the mechanics of the Bill. I will be brief. I want to deal with sections 2 and 6. At the moment, we have many people on the labour exchange who are not affected by this Bill. They find it difficult to obtain employment, some of them on the grounds of their political opinions, and others on the grounds of their religious opinions. It is sad that while a certain section of the community is being safeguarded under this Bill, a large number of people who are looking for employment are deprived of it by groups of people who came together in fashionable clubs, society seekers and otherwise, in plush hotels and in Government Departments and hatch out plans. I feel very strongly for the unfortunate people who have not got employment and who are debarred from employment for reasons which the Minister regards as unfair reasons for dismissal. I will deal with some of those in a moment.
Some time ago the Minister gave us an undertaking. He has not honoured it in this Bill. He gave us an undertaking that there would be a section in this Bill which would endeavour to seal off a loophole he left in the equal pay Bill whereby a person who applied for equal pay could be dismissed and have no right constitutionally—we were told at one stage by the Minister—to be re-employed. I should like to know if that aspect is covered in this Bill. Does this Bill ensure that such a person can be re-employed? Can the Minister indicate if that is so? Has he sealed off the loophole he told us he would seal off and that people who apply for their rights will not be liable to dismissal with no redress. Is this Bill a comprehensive effort to seal off the loophole left by the Minister? When Deputy Fitzgerald, Deputy Moore and I raised this question about victimisation of people, we were told such people would be safeguarded under this Bill. If the Minister had sealed off that loophole he would be only too happy to say so.
This Bill is a farce if it does not guarantee rights to individuals who are  seeking their rights under legislation passed in this House in the past 12 months. Is this another piece of window-dressing? It appears to me that the people we spoke about during the debate on the equal pay Bill are not safeguarded and the Minister has broken his word to Members of this House. While the Minister may think he is doing a good job in pointing the finger at employers, he should now point the finger at the State for bringing in defective legislation which could cause serious problems in relation to dismissals with no redress. We were told by the Minister that the employer has the right to employ whoever he likes. I hope the Minister will clear this up before the discussion ends. If he does not, then as we did when the equal pay Bill was before the House we will bring in amendments to ensure that legislation passed here will not subject people to unfair dismissal.
We have been told by the Minister that every Bill he puts through the House needs another measure to bolster it up. The Minister should be introducing comprehensive legislation that will seal off the loopholes, not saying: “Let this Bill go through and we will bring in another Bill to ensure it can operate”. This is a farcical situation to which this House has been subjected over the last couple of years. Again, there is no indication from the Minister whether this Bill seals off the loopholes. If we can no longer trust the word of a Minister in this House in relation to the protection of workers, then the Bills he presents can only be regarded as rushed legislation not for the purpose he indicates they are intended but purely to bolster up a sagging political situation within his own party and the Government.
I have no doubt that, as this Bill progresses through the House, our spokesman on Labour, Deputy Gene Fitzgerald, will fine comb it and will bring in amendments to ensure that it will be a worth-while measure. I do not agree with piecemeal legislation of this type. What have we got from the Department of Labour over the past three-and-a-half years? We have defective legislation which puts  workers at risk and we are told it will be bolstered up by this Bill.
Deputy Fitzgerald has dealt at some length with the exclusions, and other speakers have expressed doubts about these exclusions. It is rather peculiar that section 2 excludes the chairman of the Army Pensions Board. There are many other boards that have been established by the State over the years that in one way or another administer the affairs of the State, Bord na gCon, Bord na gCapall and so on. Why pick out the chairman of the Army Pensions Board? I believe the chairman of the Army Pensions Board was picked out to cover up the irresponsible action of the Minister for Defence, Deputy Donegan, in dismissing a man who gave valued service to this nation, General Mac Eoin. It must be for some reason and I suggest it is so that in future it can be said: “The Army Pensions Board chairman is excluded from unfair dismissal”, which means, in effect, that unfair dismissal will be tolerated in relation to the chairman of the Army Pensions Board, that he has no protection whatever. This is a man who was acclaimed for his service to this nation at home and also abroad for his service in the interest of peace and justice as commander-in-chief of the United Nations Force, and who was abruptly kicked out of office at a time when he was called before the Minister, as he thought, to receive instructions. This man had no political axe to grind. He was a responsible, competent officer. The chairmen of the other State boards are not specified. Why pick out the chairman of one board? This is a serious situation, that the chairman of this board——
Mr. M. O'Leary Mr. M. O'Leary
Mr. M. O'Leary: It is a repetitive situation.
Mr. Dowling Mr. Dowling
Mr. Dowling: ——and it is one in relation to which we want an answer.
Mr. G. Fitzgerald Mr. G. Fitzgerald
Mr. G. Fitzgerald: Who replaced him?
Mr. Dowling Mr. Dowling
Mr. Dowling: I would be concerned only with the unfair dismissal aspect of it. There will be another time——
Mr. G. Fitzgerald Mr. G. Fitzgerald
 Mr. G. Fitzgerald: I understand he was a constituency chairman in Dún Laoghaire.
Mr. Dowling Mr. Dowling
Mr. Dowling: I understand that, but the important point is that it is sought to justify the unfair dismissal of the chairman of the Army Pensions Board. I suggest this is an appointment in regard to which they must cover up their tracks. Collectively speaking, the Minister for Labour is just as much responsible as the Taoiseach and the Minister for Defence. I hope we will never see again the like of this degrading tactic that has been employed and for which provision is now included in the Bill in order to justify the Government's action in the past.
There are other aspects of the exclusions that I could deal with, but Deputy Fitzgerald has indicated that he intends to examine in great depth and detail these exclusions with a view to putting forward amendments at another stage.
Section 16 deals with unfair dismissals. Nowhere in this section can I see a reference to the personnel to whom I referred earlier. Will the Minister now give an undertaking that he will bring in an amendment to ensure that a group of workers who seek rights under another Act will be protected? He has already admitted that there is no protection under the other protecting Act that he brought before the House. It is interesting to note the terms of section 6 (2):
...the religious or political opinions of the employee, being opinions the holding or expression of which do not directly or indirectly cause or result in damage to the interests of the employer,
From time to time people have been dismissed from the Government service because of their political opinions. People are being dismissed for that reason and people will not be employed because of their political opinions.
This Bill needs the entire attention of the House. The passage of the Bill may take some time so that we can ensure that we get a true insight into  the minds of the Government, the Minister and the Taoiseach because their stamp can be clearly seen in the Bill. As the Bill goes through the House I hope we shall have many contributions and that on the Committee Stage we shall have a variety of amendments that will correct the erroneous trends in the Bill.
I do not propose to go into any greater detail on this section than I did on section 2 other than to express amazement at the fact that areas which the Minister undertook would be included in the Bill are not included in the way that he had indicated. The previous Bill went through the House in the manner in which it did, being fought line by line, because we did not accept the sincerity of the Minister in regard to the undertakings he was giving. Our stand is borne out now by this legislation. I appeal to the Minister, even at this stage, to withdraw the Bill and have it revamped so as to embody matters we had been promised would be included, so that the exclusions mentioned can be reconsidered and so that we can have a realistic Bill presented to the House, something that we can be proud of.
This is a sensitive area and there is no doubt that some employers take advantage of workers. The great bulk of employers are responsible persons who realise that it is necessary and desirable to have adequate protection for employees. Again, people are being debarred from employment for the reasons covered by the Minister here. On another occasion I shall deal in some detail with people who have been debarred from employment or dismissed by the Government on the grounds of political opinion. When the time comes I trust we can have a more comprehensive debate and place the true facts before the House.
Mr. F. O'Brien Mr. F. O'Brien
Mr. F. O'Brien: I believe the Bill is another step in the right direction, towards giving us an ordered industrial relations situation. With the exception of the previous speaker I think those who spoke this morning were sincere. Everybody was concerned that this legislation should be enacted quickly and should meet the needs of presentday  industrial relations. I should be glad if people would not take too seriously the contribution of the previous speaker as it bore little relation to what is envisaged in this Bill.
I am a bit unhappy about the exclusion in section 2, where it mentions a person with less than one year's continuous service. This might lead to a situation where a person about to complete a year's employment might be let go for one reason or another. I would hope that employers would tend to put people on probation for a short period and be able to judge their performance. Then, if they did not measure up, they could be let go. A period of one year could be used to get rid of people. There is also the question of people employed by relatives. This should be further considered, especially where only a small unit of employment is concerned. A person might have a brother or some other relative employed and some domestic problem could arise and he could dismiss him or her and that would be excluded. In my view we should bring into the net as many as possible and I would envisage relatives being included. I see no good reason to exclude them.
I know that these classes are covered under other Acts but I am also concerned about civil servants, local authority employees, health board officials and various other people excluded. I should like to see a more comprehensive type of industrial relations legislation which would encompass everybody. Those in State employment should not be subject to one type of legislation and those in private employment to another. We should aim at getting everybody under the umbrella. I would consider the probationary period of two years as far too long especially now when people can serve apprenticeship within three years starting from scratch. We are talking of a person who might be qualified, or have certain experience, undergoing a probationary period of two years. I think that should be reconsidered.
There is a period of six months for appeal. Why should it take a person six months to decide that he had been unfairly dismissed or victimised? The  problem here is that an employer may dismiss somebody unfairly, perhaps, and no action is taken for six months. Within that period he may have taken on another employee who can be working and then this appeal comes up and goes in favour of the former employee. The employer then can, and will, dismiss the person taken on. There may be very good reason for the six months' period but, if not, I think we should shorten it as much as possible, particularly in view of the fact of the introduction of this Bill, which will be advertised and a leaflet will be circulated giving details of it and setting out the rights of workers under it. In that instance there should not be any great need for a long period of time for an appeal.
Some speakers questioned the position of apprentices. As some employers take on more than their quota of apprentices to give them the benefit of training, it is important that they should be able to lay off apprentices within a month of the ending of the apprenticeship. It is important that we have a steady stream of apprentices and I have no doubt that this Bill will not inhibit employers in this respect. It is a very fair Bill and considers the position of both employer and employee. It is our duty to legislate for the good of the community and to ensure that the legislation on our Statute Book is seen to be fair.
The Minister indicated his reasons for inserting a clause in regard to the number of man-days lost. If there is a dispute I hope this machinery will operate quickly and before industrial action can be taken. In the event of a verdict being against an employee, can strike action still be taken? The taking of industrial action after a decision of the tribunal would create difficulties for all concerned. Having legislation binding on both parties is not an easy parcel to sell. Highly industrialised countries with good industrial relations have legislation which is binding on both parties. It is important to have meaningful and operable legislation. We all want to eliminate the number of man-days lost in industry. One dispute in the west divided the  community and nearly closed a particular firm. It dragged on for a long time. This is the type of situation we should try to eliminate. When a person is being considered for dismissal he should be put on notice. If he feels he is being unfairly treated he should be able to bring his case before the rights commissioner as quickly as possible. If this were done it would eliminate the number of man-days lost in industry. This legislation will make employers more responsible in that any action they take against an employee will involve an element of appeal and in that regard they would need to be sure of their grounds for dismissing an employee.
When the Minister is replying he should tell us how the trade unions have reacted to this Bill. I have no doubt they will welcome it because it will make their job easier. What will their attitude be towards industrial action if a man is unfairly dismissed? Will they advise holding back from industrial action pending the hearing of a case?
Deputy Pattison raised the question of lock-outs. How long should a lock-out continue before it is deemed to be unfair? Will the man who has been locked out have to go cap in hand to get his job back? That situation would not create the right atmosphere and would lead to further frustration. Lock-outs should be treated as dismissals and investigated quickly to ensure that they do not continue for any length of time.
This is a fine Bill. It constitutes another piece of the jigsaw. The Minister, since coming into office three-and-a-half years ago has introduced much legislation. He has an understanding of the overall industrial relations position. If we are to emerge strong industrially we must have comprehensive industrial relations legislation to protect everybody's rights. However, we must continue to explore that whole area. I support also the bringing in of people on the boards of semi-State bodies. That is part only of what I should like to see done in the area of workers' councils and participation at different levels of management. One  hopes that all of this will be dove-tailed in the future, because I believe it is the only way we can remain competitive in the industrial world. If our competitors are reasonably strike-free because of their good industrial relations which we are not, then we will find ourselves totally non-competitive. We have merely to look across the water at the car industry where, because of their industrial relations, that industry has been literally torn apart. As an emerging industrial nation we do not want to be beset by problems such as those but we must gear ourselves to meet the challenge of the highly-industrialised countries by having good industrial relations.
I wholeheartedly welcome the Bill. I look forward to participating in the Committee and other Stages to ensure that, when complete, it will meet the needs of this area. We can then explore other areas where further legislation is required in order to bring industrial relations here to a fine point.
Mr. Moore Mr. Moore
Mr. Moore: Most people would agree with Deputy O'Brien when he said that, if this Bill improves industrial relations, then we would be all for it. However, I wonder will it do anything to better relations on the factory floor and in offices. In this respect we need legislation. We need action by people employed in industry or commerce in an endeavour to make those concerned more competitive in order that they can withstand the colossal challenge they will meet from the rest of the world, and particularly from Europe. One of the first things one must think on today is: what can an employer and employee put into an industry so that it will be well run, that workers' rights will be respected which in turn will play its part in building up our economy?
When I hear people speak about human relations I often wonder does a man when he becomes the owner of a factory change somewhat. Does he —or any group for that matter— become a different being? I do not  think they do but the atmosphere in a firm may contribute to the behaviour of that employee or employer.
This Bill does not deal with conditions. Over the years mistakes have been made by the introduction of piecemeal legislation on industrial or human relations. It would be well if we took time off some day to examine all of the legislation, starting just after the industrial revolution right up to date, so that in today's modern concept of industry and commerce we might be able to draft a bill of rights which would be a charter of equity and protection for all people engaged in them. In that way we would codify our laws and have a single piece of legislation, a testament of equality and justice. Then each person engaged in industry or commerce would have that ideal before him: knowing he had a job to do, whether it be on the managerial or operative side, but that he was safeguarded and that, in his efforts, he sought a common good. He would know that in so doing his rights were protected and there was no discrimination against him.
This Bill has been faultily drafted. If one reads the Minister's brief one finds it absolutely discriminatory regarding women in its phraseology. I can see the Minister being rapped by some of the women's liberation groups for his persistent use of “he” — “he will have this”, “he will have that” or “he can do this” or “he cannot do that”. I can see the Minister being classed as a chauvinist because of the phraseology here. As one wades further into the Bill one finds it is specified that, of course, women are affected by it also. But in the phraseology of the Minister's brief one does detect purely male thinking which does not get the Bill off to a good start.
The Minister might some day consider the introduction of a bill of rights, to which I have referred, and the evolution of a social contract. While at present a worker taken on by an employer has a certain kind of contract it would help him very much indeed, and add somewhat to his dignity, were he taken on contract, with certain things laid down in it, was  treated as an individual, not merely a number on a card to clock in and out each day. Indeed, there would probably be no name on such a card.
We might study also the position of industry in western Europe to see if we could learn anything from it. I am sure we could. I believe we will have a situation here in years to come such as occurred in Western Europe recently where employees took an employer to task because of the employer's inefficiency. The employees involved believed that the factory where they were working was going down through the fault of the employer. They took the matter to the equivalent of our Department of Labour and I believe remedial action was taken. I am trying to put across that we cannot legislate against certain attitudes, but legislation should encourage people and not coerce them. It should encourage employers to be good employers and encourage workers to be good also. Legislation prepared in that way would be effective but the patchwork pattern of legislation of the Government in this field is contributing greatly to the non-achievement of proper industrial relations.
The Minister has promised further legislation but he should introduce a Bill similar to that brought in by the late Seán Lemass in the 1930s, the Conditions of Employment Act. That Act was regarded as a charter for those engaged in industry and it is still on our Statute Book. We could learn a lot from it. The scene has changed a lot since then and I believe it would be easier for the Minister to introduce legislation to build up our industrial arm. If this help to prevent days lost by the crude weapon of strike, as he terms it, it is good.
Section 6 (4) 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:
(a) the capability, competence  or qualifications of the employee for performing work of the kind which he was employed by the employer to do,
(b) the conduct of the employee,
That is very general. Would the Minister write in a provision to the effect that an employee must not use Anglo-Saxon words to his foreman? We had a bitter strike some time ago, which divided one of our smaller cities in two, arising out of the fact that an employee was alleged to use Anglo-Saxon words to a supervisor.
Mr. M. O'Leary Mr. M. O'Leary
Mr. M. O'Leary: There are curses in the Irish language also.
Mr. Moore Mr. Moore
Mr. Moore: There are but the good Irish speakers do not know them. The provision I have quoted is too broad. We should be more specific on this matter. The Minister must tighten up that provision before it would be acceptable or helpful. That section also refers to the “pregnancy of the employee”. That is very inefficient. The pregnancy of an employee should be dealt with in a different way because I could not see an employer dismissing an employee because of that. I would like to see a provision written in to the effect that social services should be called on in such a case. Pregnancy should not be written in as if it is another handicap to an employee. From this and other defects I gather that the Bill was drafted in a hurry. There is a degree of patchwork about it.
Because discrimination of any type can be the cause of a bitter strike the Minister should insert in the Bill a guidance service which will help those involved in industry to preserve the human relations between employer and employee, always realising that we have 110,000 people unemployed. Industry will only be an efficient arm of the economy if it is well run and if those engaged in it get job satisfaction. When we are removing the irritants which cause people to act unreasonably, employer or employee, we must face the fact that employers have problems and employees may have problems which can be sorted out, not  so much by legislation as by intelligent thinking. The Minister should take the Bill back, think over it, and I am sure he will find great scope for improving it.
Minister for Labour (Mr. M. O'Leary) Michael O'Leary
Minister for Labour (Mr. M. O'Leary): We have had interesting contributions from all sides. As those who contributed remarked, much of the material in the Bill can be gone into in greater detail at Committee Stage. I hope to have the opportunity then of replying to many points raised this morning. A fear was expressed that we were overburdening the area of industrial relations with excessive legislative interference. That is a fear that might be expressed more validly of other systems than of ours. I have been seeking to repair omissions that existed in our laws and, where experience recommended, the introduction of new legislation. I have proceeded to do that. Over this area of legislation in respect of the individual at work and working conditions, in respect of such matters as worker participation, our laws have been silent over a great number of years. In introducing the agricultural joint labour committee we saw that legislation in relation to agricultural workers was last passed in the late 1930s and early 1940s. Similar remarks can be made about many other areas. This is an area which has been neglected for many years in the sense that no new legislation consonant with modern attitudes has been introduced.
Deputy Moore was worried about the use of “he” and “his” and other descriptions in the Bill which would suggest that we were reflecting male chauvinism. He thought it reflected some discrimination towards female employees. In any legislation we produce here, when we refer to “he” we base our use of the word on the Interpretation Act, 1937, which sets out clearly that the male “he” also includes a female. We may object to that but that is the legal position.
Many questions of detail were raised. Deputy O'Brien raised the question of the one year of qualifying  service. What we require in this respect is a trial period and we set on one year as a period during which employers and employees can decide whether they are suited to each other. It would be unfair to select a shorter period. We decided that one year was a reasonable period and that we would thereafter give power to declare the situation open to action within the framework of the Bill. Section 16 (1) gives power to cut that period later if experience suggests it should be cut.
What I have tried to do in this legislation is to limit the area of arbitrary behaviour in the important matter of dismissal. Deputies have referred to disputes that have occurred which owed their origins to an individual sense of grievance arising out of a person's dismissal by a particular firm. From the figures I gave this morning, we know of the many strikes that have occurred which owe their origins to the feeling on the part of individuals that they have been unfairly treated after not too many years of service. A person, because of disagreement with his employer, might find himself dismissed and his fellow employees, sharing his sense of grievance, have supported him.
Up to now the problem has been that remedies have been sought to correct that situation by declaring strike notice. There is nothing more potent in spreading a dispute than a sense of injustice shared by a number of workers in relation to a grievance of one individual. This legislation is directed at removing the potential of an individual grievance for general dispute. That is the constructive contribution which this Bill will make to improving industrial relations. It does not ensure automatically that there will be an elimination of all kinds of dispute of this character but Deputies will admit it must be of assistance in this respect.
This Bill is not an instance of law for law's sake but of the law helping to improve deficiencies that exist at present, of the law being invoked to ensure that the individual who may suffer a sense of grievance in the matter of his proposed dismissal will  have set down for him procedures which he may utilise and accordingly his use of these procedures will ensure that his workmates will not feel impelled to support him in unnecessary strike action.
Deputy Pattison raised the question of conduct outside working hours. One can say on the basis of the Bill that it is very unlikely to justify dismissal on grounds of such conduct unless it could be demonstrated categorically that the conduct was directly relevant to the effect on his job performance. To decide on all these questions of interpretation, we have experienced bodies such as rights commissioners and the tribunal I referred to earlier, all experienced in the matter of interpretation of the section. We can be assured that their interpretation will always be made on common-sense grounds.
Deputy Pattison also raised the question of unfair demotion and various other ways in which an employee's life may become almost intolerable, forcing him to leave the job. The Deputy asked whether that kind of situation is covered by the Bill. The employee can avail of the constructive dismissal element which can be found in section 1. He could thereby bring action against his employer.
The same Deputy asked about funds to compensate employees where employers default in unfair dismissal cases. We must make a distinction between such cases and redundancy. Cases in which employers go out of business and default equate to the redundancy situation and the employee can claim compensation from the redundancy fund in such circumstances.
Deputy Fitzgerald asked about the two years' pay and compensation which is referred to in section 7 (1) (b). I do not intend to have a ceiling in money terms because it must not be forgotten that this Bill covers all levels of employee. It is not confined to the shop floor: it covers all levels, from general manager to general worker.
Deputy Fitzgerald referred to the possibility of defining the criterion of  unfair dismissal. He said that to try to define “capability” and “competence” qualifications should result in a narrower legalistic interpretation. Here again we must realise that these will be subject to the interpretation of the experienced adjudication bodies I have referred to. It must be borne in mind that these tribunals will in certain cases need legal representations in addition to the representations from both sides of industry.
Deputy Pattison asked about discrimination on age grounds in connection with redundancy. Section 6 (3) makes special provision to deal with unfair selection for redundancy. This can be judged to be unfair dismissal under this Bill. An employee who feels he has been unfairly treated in connection with redundancy will under that subsection have grounds for action.
The same Deputy asked about groups of workers who do not support an individual who has been dismissed —what would be their position? One of the benefits of this legislation is that there is no reason why a group would feel impelled to offer the same support to an individual as they would have up to now because from now on in such a situation the individual aggrieved can be informed by his fellow workers that this legislation enables him to present his case to the adjudication bodies, if he so wishes. It is up to the individual to present his case in that way.
Deputy Fitzgerald raised the question of powers to amend the Bill in relation to international obligations of the State. One of the provisions of the Bill is that the Houses of the Oireachtas can debate the contents of all such orders before they approve of them, and this gives full recognition to the Oireachtas. A point was made about existing dismissal procedures. The Bill will not prevent employers and employees having recourse to established agreements in this respect. The provisions of the Bill will come into being after a dismissal has taken place and this presumes that the provisions of negotiation agreements have already been exhausted. I am giving special  recognition to existing agreements in section 14.
The question of apprentices was raised by many Deputies. Deputy Pattison stated the advantages and snags of this provision. I believe the balance of advantage lies clearly in retaining this provision. I welcome full discussion of this but I am anxious to ensure that firms who bring on more apprentices for training than they require should not find themselves in difficulty because of the passing of this Bill. I spend a lot of my time urging firms to employ more apprentices than their requirements dictate, because I believe it is important that firms realise that this training objective should be fulfilled by firms around the country. Therefore, I would like to see the larger firms take on more apprentices than they might immediately require because the economy is in need of these skilled people. Over this recession period I have been anxious to see that firms do not cut down on their training targets.
Deputy Fitzgerald raised the question of a change of ownership of a company. That is covered in the Minimum Notice and Terms of Employment Act, 1973. There are certain safeguards in relation to transfer of business mentioned in that Act and his point is amply met by the provisions of that Act.
I agree with those speakers who talk about the necessity for swift action. We have not had many complaints about delays by the rights commissioners to certain situations. Retention in employment has been raised. Deputy Pattison asked if the aggrieved person could be retained in employment pending the hearing on his proposed dismissal. I imagine that is the kind of situation which would most ideally be dealt with in the code of practice. As I indicated this morning, as soon as this Bill passes through both Houses, I will initiate discussions with the unions and employers to get agreement on the national code of practice.
Deputy Callanan raised the question of qualifications and conduct.  Adjudicating bodies will, in practice, have to set down their precedents case by case. They will involve procedures that will be based on sound industrial relations experience. The rights commissioners and the employment tribunal are well acquainted with the existing practice of industrial relations. I have no reason to fear that their definitions of qualifications and conduct will stray far from common sense; in fact, they will be based on interpretation of this Bill and will ensure that in practice, qualifications and conduct will not be interpreted to the disadvantage of the individual concerned.
I have tried to cover some of the points raised but I am conscious that I have not referred to all of them. Deputy Fitzgerald referred to his fears about the exclusion of close relatives. What I had in mind were the problems raised in farming enterprises. I have an open mind on this. We all know of cases where the question of close relationship did not prevent injustices occurring. This is a very complicated area. In my opinion we should keep family squabbles out of general law but, as I said, I am aware of certain injustices that have occurred here. I hope we will return to this on Committee Stage. My own misgivings in this area relate to the question of family connections and farming practices.
Mr. G. Fitzgerald Mr. G. Fitzgerald
Mr. G. Fitzgerald: Many companies have rules dealing with resignation on marriage. If a girl marries and her employment ceases, is that covered by section 6?
Mr. M. O'Leary Mr. M. O'Leary
Mr. M. O'Leary: Yes, in the area of exclusions, probationary teachers were mentioned. They can be excluded for two years only. There is a common sense point that where a person is undergoing training or probation obviously it might be considered unfair to introduce the question of legislating for unfair dismissal over that period. That person could prove to be totally incompetent and unsuitable for the job. In that situation it would be unfair to ask the management to abide by the complete rules of unfair dismissals. This is a matter we  will be returning to on Committee Stage. I have done my best to cover all the points raised and hope we will come back to them on Committee Stage when we can go into them in greater detail.
Question put and agreed to.
Committee Stage ordered for Tuesday, 23rd November, 1976.
Dáil Éireann 293 Anti-Discrimination (Unfair Dismissals) Bill, 1976: Second Stage.