Seanad Éireann - Volume 135 - 31 March, 1993
Unfair Dismissals (Amendment) Bill, 1993: Second Stage (Resumed).
Question again proposed: “That the Bill be now read a Second Time.”
An Cathaoirleach An Cathaoirleach
An Cathaoirleach: It is proposed to continue yesterday's arrangement regarding speeches — 20 minutes per speaker. Is that agreed? Agreed.
I welcome the Minister to the House and I call Senator Mooney to resume the debate.
Mr. Mooney Mr. Mooney
 Mr. Mooney: I welcome the Minister's initiative and the timely nature of this legislation in the context of the changing political face of Europe. I referred earlier to what I saw as an unacceptable rise in facism in Central Europe and one could not help but remember the infamous Nuremberg Laws of 1934 which excluded a number of ethnic races, especially the Jews, from German society. While it may seem like a quantum leap from the 1930s to the 1990s, I am sure the Minister will agree that in a democracy we must be ever vigilant to ensure that the rights of minorities and those on the margins are protected.
What, if any, monitoring system is proposed under this legislation? Does it differ in any way from the previous legislation? I notice that the explanatory memorandum refers to a right of appeal and a commissioner being established. However, I wonder if in the Minister's experience, companies have attempted to get around the law since 1977 in a quasi-legitimate fashion, in much the same way as accountants indulge in what is euphemistically known as creative accounting in order to skirt the spirit of legislation on for example, tax matters. I am thinking particularly of the point I was making earlier wearing my broadcasting hat. On further perusal of my short term contract, I notice there are still disclaimers relating to any obligation on the part of my employers to regard me or any of my colleagues in a similar position as members of staff. These disclaimers relate to staff benefits.
I do not want to go into too much detail on this, because I am sure there are lawyers who go over every line of staff contracts to ensure that there is not just an advantage to the employer but also an awareness of legislative obligations. I would like to know what monitoring system there is in the Department, other than the actual claims procedure. Is the law framed in such a way that if employees feel they have been discriminated against, they must then take the initiative and seek an appeal against possible dismissal? I am sure the Minister will address that in her reply.
 I welcome this legislation; it is timely and in keeping with the innovative moves made by the Minister throughout her political career. I commend the Bill to the House.
Mr. Quinn Mr. Quinn
Mr. Quinn: I welcome the Minister to the House particularly because this is the first Bill to be initiated in this House since I was elected and, as such, it deserves my careful attention. I was pleased that the Leader of the House was able to adjust the original proposal to allow time between Second and Committee Stages because we will be putting down worthy amendments on this first Bill to be initiated in this House.
I welcome the principle of the Bill. It is essential that we should have law on unfair dismissals, and we should keep that law up to date, bringing it into line with changing conditions and improving it in the light of the practical experience.
The Bill, in its present form, needs some improvement and on Committee Stage I will put down specific amendments. At this stage my comments will be of a general nature. First I would like to highlight the need for a very careful balance in legislation of this kind. On the one hand, we must legislate to protect the rights of those who are at work. In today's conditions we all recognise the value of employment more than ever, and it is right that no person's employment should ever be taken from them without due cause or process. On the other hand, we must take equal care to ensure that dismissal is possible in those unfortunate cases where it is justified. We must take extreme care not to make it so difficult, cumbersome and costly for the employer to dismiss an employee that it becomes, in practical terms, impossible to dismiss anybody for any reason. We need to balance these two things very carefully. We also need to balance our wish to fully protect the rights of employees with the overriding aim of generating more jobs, and of making an impact on unemployment. We should be trying to ensure that legislation does not discourage employers from taking on more people.
 In the 19th century, employers were totally against legislation which gave employees any rights whatsoever. Those days are gone, thank God, but we have to face the fact that employers are more careful now about taking on people than they were even 20 years ago as a result of the raft of employment legislation we now have in place. That is one of the reasons employers are more attracted to adding value through technology than to adding to staff numbers.
I intended, before I started my contribution, to ask if I could share my time with Senator Norris. We have 20 minutes and I do not intend to use any more than ten or 15 minutes.
An Cathaoirleach An Cathaoirleach
An Cathaoirleach: Is that agreed? Agreed.
Mr. Quinn Mr. Quinn
Mr. Quinn: I do not mean we should repeal employment legislation but when we are considering additions to it we should ask ourselves carefully whether they are necessary. We should resist adding clauses to be on the safe side and ask instead whether additional legislation will increase the already heavy burden of compliance on employers. Legislation of this kind does not come without a price. We have to make sure we can afford the price.
This matter is important in the light of British policy on social legislation. There is little doubt that the “social dumping” that many feared might happen in Europe is now taking place. I deplore the decision of the United Kingdom to opt out of the social chapter of the Maastricht agreement. I foresee many troubles for Europe in the years ahead as a result.
This attitude in Britain makes it all the more necessary for us to exercise great care in enacting social legislation. While rightly choosing to row in with Europe in this matter we must make sure that we are not put at too great a disadvantage by British action in the matter. We need to consider each point in the Bill in this light.
We need to consider the special difficulties which face small businesses especially those which employ fewer than  ten people. Every small business is a potential force for job creation. Developed economies across the globe have found it easier to create jobs in small businesses than in large ones, particularly in the service industries that are so important to our future.
Our over-riding aim should be to remove obstacles that prevent small businesses from taking on people, and obstacles which discourage people from setting up in business in the first place.
The complexity of Irish employment legislation and procedures is a problem for employers. Some 24 Acts of the Oireachtas, five EC directives and 18 statutory instruments make up the body of Irish employment law. I may be understating the situation — that is all the legislation I have been able to find. In large companies such as my own personnel departments look after company obligations under employment law. Medium-sized companies can afford the services of an organisation like IBEC to guide them through the maze unlike those in the small business sector which offer such opportunities for job creation.
I started in business over 30 years ago employing eight; I now employ over 3,000 people. If I was starting with eight people now I might well be overwhelmed by the morass of obligations imposed by employment legislation.
I have three suggestions to put to the Minister. She should look at the corpus of employment legislation to see if a slimmed down version could be created for very small businesses, a version which would fully protect the employees but which would be related to the real world in which small businesses operate. Secondly, she should consider publishing a simple guide which would outline in simple language all the obligations and procedures that small businesses need to know. These obligations and procedures look more daunting and more complex than they are. Micro-businesses should not have to employ a lawyer to find out where they stand. Now that enterprise and employment have been brought together in one Department this kind of  activity is appropriate as never before. I was delighted to hear the Minister for Enterprise and Employment say that the order refers to enterprise followed by employment. If we are going to encourage enterprise we have to make it attractive for people to start businesses. Employment will flow from that.
I suggest also that it is now time to bring all employment legislation together in one consolidated employment Act. I am not suggesting an overhaul of the legislation but its consolidation. There is an accelerated procedure for bringing consolidated Bills through the Oireachtas so it would not be a major task or one which would impede other legislation. If ever a consolidation of legislation was necessary it is in this critical area. I believe enterprise and employment are intrinsically linked and that fact should be reflected in everything we do, including the passage of this legislation.
Mr. Norris Mr. Norris
Mr. Norris: I welcome the Minister to the House. As always, she is a breath of fresh air. I welcome this Bill which is extremely important and follows on from a number of debates we have had in this House. I will concentrate on one aspect of this Bill which I regard as historic, that is the inclusion of sexual orientation in its provisions. I remember the interesting battle we had some years ago to persuade the then Government to include sexual orientation for the first time in the Incitement to Hatred Bill. I am very glad that the Minister's predecessor. Deputy Burke saw fit to introduce a sexual orientation clause into Irish legislation on incitement to hatred making it one of the most progressive and far-reaching of such instruments in Europe. I remember Deputy Burke was heaped with praise by the Irish media and also received congratulations in international fora because it came as a surprise that this country should be advanced and compassionate in its thinking in this area. It is a position which seems to contradict some provisions of criminal law, although I understand that is about to be addressed.
Despite the fact that I have on occasion  rebuked the Government for their laxity on rights of sexual orientation, a humane and compassionate policy on the subject has been pursued by a Fianna Fáil Government over a number of years. A most important instrument, circular 12/88, outlining civil service policy on AIDS was issued by the Department of Finance on 22 June 1988. This is a model of anti-discrimination protection in the workplace and is one of the most advanced in the world. I have my copy with me. It is worth putting on the record as a tribute to the work that Fianna Fáil have done in Government. This is a binding Protocol throughout the Civil Service:
Officers who are HIV positive or who suffer from AIDS will be retained in their job for as long as they can perform their duties to an acceptable standard.
2. The normal sick leave regulations as set out in Circular 25/78 will apply to staff who suffer from AIDS.
3. All details of an officer's health record should continue to be treated in the strictest confidence
4. Discrimination on the basis of sexual orientation or medical condition (e.g. haemophilia) will not be tolerated in the civil service.
5. General—Nothing in this policy statement is to be interpreted as constituting a waiver of management's responsibility to maintain discipline or its right to take disciplinary measures under normal disciplinary procedures.
That seems to be a perfectly balanced, fair and decent approach and is close to the kind of thinking in the Minister's proposed legislation where sexual orientation is added in the Unfair Dismissals Act, 1977. Section 6 of the 1977 Act reads:
Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having all regard to all circumstances, there were substantial grounds justifying the dismissal. (2)  Without prejudice to the generality of subsection (1) of this section the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly for one or more of the following:
Paragraph (e) now includes sexual orientation.
In 1977 I approached the Minister then responsible, the former Deputy Michael O'Leary. He indicated he would be sensitive in his response to this matter but he required me to produce evidence of discrimination. I found it difficult to do so for a number of reasons. One is that people at the receiving end of such discrimination normally do not want to make any further fuss about it all. They want to creep into a hole and die of shame if they are subjected to what is a form of sexual harassment, of sexual orientation being disclosed, or if they are dismissed. Often the last thing they want to do is disclose this to a further party or to be used in a survey or systematic analysis.
I am aware of a number of cases in which people were dismissed because of their sexual orientation, in at least two tragic cases because the employer fortuitously or accidentally came into possession of the fact that the people involved had tested positive for HIV. On those occasions the employers were extremely careful to ensure nothing appeared in writing to acknowledge this as the reason for the dismissal. In almost all of the cases, despite some approaches made to the employers, there was no question whatever of reinstatement. Thus, this provision is necessary.
There is a large number of gay people in this country and their consistent fear is that they will be discriminated against in employment. This fear emerges, for example, in surveys carried out by the Gay Health Action Group in August 1989. They reported that 31 per cent of those surveyed said that most or all of their colleagues knew they were gay. This, of course, has to be set against a further 58 per cent, a significant majority,  who thought they would be discriminated against if any of their colleagues knew they were gay. Even more disturbing, 11 per cent — 28 people — reported they actually had been the victims of discrimination at work because they were known to be gay. This is a small sample. The Labour Court has found in Determination 2 of 1987 that statistical evidence of this kind is sufficient to prove cases of discrimination. My argument is that although sampling is difficult and the sample taken was small, there is sufficient evidence to demonstrate that discrimination exists.
Gay Switchboard in Dublin has operated since 1974 and has taken over 50,000 calls from all over Ireland. In its annual report it stated:
Over the years, a constant theme expressed by a large proportion of their callers was that their colleagues, or more significantly their employers, would find out that they were gay or bisexual. They fear that should this be discovered, they would be discriminated against purely on the basis of their sexual orientation. This fear is a terribly real and powerful one... All too often we are made aware of instances where this discrimination actually results, or has resulted, in dismissal.
This is a very substantial fear, which is having an impact on the psychological well-being of a substantial minority of people in this country. This is not just a fear; it is something that does, regrettably, result sometimes in highly discriminatory action, including dismissal, in circumstances where it is clear the only reason for dismissal is the sexual orientation of the parties involved.
In support of what the Minister has done, I will put on the record of the House a register of those many groups and influential bodies who supported our call for such an amendment to this legislation. There is, for example, the Department of Health with the National AIDS Strategy Committee Report. It is understood this committee has recommended  that the current Civil Service policy initiated by then Minister, former Deputy MacSharry — which I read on to the record of the House — should be extended to all public and private employees. In other words, what the Government has already wisely and compassionately instituted through the Civil Service should be made mandatory, not just in the Civil Service but also for all public companies.
The Department of Foreign Affairs announced in December 1989 that Ireland should ratify the United Nations Universal Declaration on Human Rights, which obliges parties to ensure that all individuals in their jurisdiction enjoy certain rights which includes the right to life, liberty, security of the person, freedom of movement and so on. These rights which are subsequently enumerated include naturally the right to work and an adequate standard of living. These are basic rights. When I was campaigning at the end of the 1960s and the beginning of the 1970s in support of the Northern Ireland Civil Rights Association, those were precisely the areas in which the Catholic minority felt particularly aggrieved — employment and housing — and so it is for this minority in this country.
There is much more that could be placed on the record from bodies such as the Irish Congress of Trade Unions, the Oireachtas Joint Committee on Women's Rights, the Employment Equality Agency and so on. I leave the Minister with this final thought. She has done a very good job. This is an excellent and enlightened approach and I welcome it because it affects people where it really matters. I encourage the Government to follow this excellent legislation with another, for which the Minister may not be directly responsible. There should be full anti-discrimination legislation; then Ireland can proudly take a rightful place among the most progressive nations of Europe.
Mr. Lanigan Mr. Lanigan
Mr. Lanigan: As a representative of those who employ and have succeeded in keeping a few people employed for over  35 years, I take some comfort from what Senator Quinn said about the differences that exist between big companies and small companies. Small companies in Ireland are being overwhelmed with legislation which protects, or is supposed to protect, employees. I have not seen any legislation to protect employers.
I am not too sure where the impetus for this Bill came from and I am not criticising it. If it is necessary it has to be introduced. The media attention in regard to this Bill has been on the fact that it introduces sexual orientation as one of the reasons somebody cannot be dismissed. There has been no media coverage of any other aspect of this Bill. There was a need to bring in a section regarding sexual orientation in the Bill and there are other items which had to be added.
The Bill seems to be geared to semi-State and State companies. Section 3 amends the principal Act and talks about temporary contracts which are extended on a short term basis. It is suggested that these contracts might be used and extended to get over the technical aspects of unfair aspects of unfair dismissal legislation. People working in RTE and other semi-State companies have spoken of it becoming the norm to have short term employment contracts. Perhaps the reason for this is that if you have a short term contract you do not have to give statutory redundancy or get involved in various aspects of company law.
All legislation coming into this House costs money and there is no doubt this legislation will do so. Every employer is going to have to look again at the costs of employing someone. They will ask themselves if this legislation will cost them money. At present, the lawyers will have another field day. They will analyse this Bill to see how best they can get involved. Every employer, big or small, has to employ a lawyer if an unfair dismissal case is brought against him.
I have noticed in the newspapers — and I have not looked at any statistics other than those in the Minister's speech — that about 260 successful unfair dismissals cases are brought each year and  a number of others are thrown out. A total of 7,751 cases have been brought since 1977 and of these 1,734 were allowed and 2,414 were dismissed. I have never had an unfair dismissals case brought against me nor do I know of a small employer in Kilkenny, or in the southeast, who has had an unfair dismissals case taken against them. The majority of cases are taken against semi-State companies and bigger companies generally. There are about 1,000 such cases per year; about 260 will succeed the rest will be thrown out.
It is very costly for an employer if a case is taken against him or her in terms of public attitude, employee attitude and trade union attitude. Often despite a case against an employer having been dismissed I have heard people complain that the employer does not pay staff enough or treat them fairly.
The point made by Senator Quinn is important; we have to take into account the difference between large and small employers. We have to give employees the right to work in reasonable conditions but, equally, we must give potential employers the right to employ people on the basis of trust in their businesses. When people are employed on the basis of trust employers and employees will be more secure in their attitudes towards each other and workers will be more secure in their jobs. There has to be discipline on both sides in any labour relations situation. The day someone can go to an unfair dismissals tribunal because of a row with a boss — the day there cannot be a flare-up in the workplace — is the day employers will stop employing.
In the 1950s, 1960s and 1970s, through my experience in business, I saw that people wanted to become employers not employees. In the motor business and the service industry workers took their tools and set up in business. Many were very successful. In those days it was the good employee — the one who really wanted to get on — who set up alone. Nowadays people are not doing that because they realise the minute they enter the workplace as employers, they will be hammered  by legislation and the tax people. Employment legislation goes against the efforts of someone trying to set up in business; there is no incentive for would-be employers.
Section 6 (a) of the Bill will allow a rights commissioner to award compensation of up to four weeks pay for unfair dismissal in cases where no financial loss has been incurred by the employee. I cannot see the rationale behind that. If no financial loss has been incurred and the employee has been reinstated perhaps she or he should be compensated to the extent of four weeks pay? If someone takes a wrongful claim there is no compensation for the employer. This may seem a minor thing, but it is not so for a small employer trying to deal with employees when everyone seems to be against the small business person.
There is an anti-small business attitude in banks and in the social welfare system. People are not setting up small businesses in Ireland anymore and perhaps the composite body of employment legislation is the reason indigenous businesses are no longer emerging. I appeal for some rights for small business people and I appeal to the Minister to look at the legislation to establish what is a small business.
Senator Quinn said that IBEC deals with small businesses, but it does not deal with any business employing fewer than 20 people. IBEC is a large business organisation like the CII and the CIF while the small business association is orientated towards businesses which employ ten to 50 people. Business in Ireland is not about people who employ 50 and upwards; businesses employing between one and ten employees is usual. When we eliminate these small businesses we will be bemoaning losses of 4,000, 6,000 or 100,000 jobs. The small business person works hard because all assets are usually tied up in the business. Small business persons' houses are probably mortgaged for their business. They do not go out of business with large amounts of money stored away or because they have defrauded the tax  people. When they fail in business nobody seems to worry but, unfortunately, they are not being replaced.
This legislation is important and welcome. But I ask the Minister if her Department could set up some sort of enterprise board to see how small businesses can best be protected when legislation such as is being introduced. Perhaps, small businesses below a certain turnover — it could be on turnover or numbers employed — should have a built-in advantage in PAYE and PRSI to allow them to employ someone to advise them in conflicts arising under labour or other legislation.
Legislation of this type was urgently needed in 1977 and the Unfair Dismissals Act, 1977 has worked. This amendment Bill is probably necessary. However, we are not living in the 18th or 19th century; people who go into employment now realise that employment is not necesarily permanent. People do not want or expect to work in the same job for the rest of their lives. We have a mobile workforce; young people want to move upwards. They also want fairness in the workplace but that cannot be achieved by legislation. That comes when people trust each other and 90 per cent of employers in this country trust their employees. The small number of cases which have come before the Employment Appeals Tribunal since 1977 show that there is no great need for unfair dismissals legislation.
Our aim should not only be to protect the jobs we have, but to create additional employment. We need an employment and enterprise orientated society. Every obstacle placed in the way of enterprise development is regrettable. I am not suggesting that this legislation is an obstacle, but I speak as a small employer who has never had an unfair dismissals case taken against him. There is a need for discipline but this should not be incorporated in legislation because this country is overwhelmed with legalities which are not relevant to normal day-to-day work.
I compliment the Employment Appeals Tribunal and the Rights Commissioners on their work over the years.  They have provided direct access to essential services and have redressed wrongs which have come before them.
A considerable number of unfair dismissals cases are taken against larger companies which have professional management expertise. These so-called professionals who recruit employees are not as good at their work as the small employer who meets an employee on a one-to-one basis to discuss the details of the job.
I am being a little critical of the Bill but my criticism is intended to distinguish between the needs of larger and smaller companies. Ireland has a macro and a micro economy. However, I prefer to talk about small family businesses or businesses owned by one person who employs two people, in contrast to IBEC, CII or CIF who refer to businesses which employ 40 to 200 people as small businesses.
I welcome the provision in the Bill which deals with sexual orientation. This was needed for larger businesses rather than for smaller ones. The main thrust of the Bill is to provide better technical and administrative services and improved protection for workers. I ask for the same type of protection for business people so that employees may be safe in the knowledge that they work for reasonable people. In Ireland, people seem to think that employers are crooks. The attitude that employers are not to be trusted is fuelled by the media who portray employers as crooks. Employers are generally not like that. I welcome the Bill.
Ms Honan Ms Honan
Ms Honan: I welcome the Minister to the House together with the opportunity to debate this Bill which is amending the 1977 legislation. Any legislation brought before either House in the present climate must be looked at in terms of how it affects employment and whether it will facilitate the development of entrepreneurial skills and the setting up of businesses.
Senator Lanigan is a small businessman who employs a small number of people and both he and Senator Quinn have talked about the situation from the  employer's point of view. I agree with both of them. There is a public perception that it is almost impossible to dismiss an employee. That perception is regrettable. The Minister of State in her speech outlined surveys which were undertaken after the 1977 Bill was passed to see how businesses were affected by it. I was pleased to hear her say that the Bill has not reduced the number of people taken on by employers but has probably led to a tightening of the procedures and of arrangements made between employers and employees which has worked to the benefit of both.
The most important consideration in this country at the moment is employment. We must maintain jobs and encourage people to set up businesses. I would not like employers to think that it is not worth their while to employ people because of difficulties that may arise. Small employers who face an unfair dismissals claim do not have the facilities or the back-up support which larger companies enjoy. However, even in the event that a claim against an employer is unsuccessful, considerable worry is caused to the employer who may wonder then if it is worth continuing to employ.
The Sunday before I was elected to this House I was at Mass in Shannon where Fr. Harry Bohan — who I am sure is known to most people — gave a sermon on employment. He mentioned the fact that everybody blames the Government for not creating more jobs but he said we all need to look at how we can help. He said that anyone with influence in a political party should tell them that State bureaucracy was unhelpful to small enterprises and to people, for example, setting up businesses in West Clare. He said that every possible assistance was given to the large industrial developments in Shannon, but that this was not the case for small business people trying to set up enterprises throughout the country. I agree with him and feel that obstacles should not be put in the way of people trying to create employment by establishing small industries. He also said that people should not begrudge the success  of those who have established small businesses.
I welcome the provision in section 3 which allows for the extension of the legislation to temporary employees of health boards. This is welcome because many nurses, the majority of whom are women, have for a long time been employed on a temporary basis and were unable to avail of the benefits of this legislation.
I also welcome section 5 which extends the scope of the Bill to include race, colour and sexual orientation as reasons for unfair dismissal. I agree with what Senator Norris said in relation to sexual orientation. As a member of the Commission on the Status of Women we received submissions from lesbian groups. In one oral submission they spoke, as Senator Norris said, of the fear of their sexual orientation being discovered in the workplace and losing their job. One of the commission's recommendations, which is included in this Bill, was the inclusion of sexual orientation in the list of reasons for unfair dismissal in the amended employment equality legislation. I welcome this because the fear of being dismissed causes huge problems. Being mentioned in the report as lesbians was all the groups were asking for and was a huge step forward. That indicates how fearful such people are in their work-places and in their everyday lives.
The Commission on the Status of Women recommended an equal rights amendment to the Constitution and the enactment of an equal status Act. The Minister for Equality and Law Reform, Deputy Taylor, promised he will look at this area. The Commission recommended that the proposed equal status legislation should make it unlawful to discriminate against any individual on the grounds of sex, marital or parental status. I would like to look briefly at this issue because it is one that affects women.
Some years ago a teacher in Wexford was dismissed when she was pregnant. I know it was perceived by many people that she was not dismissed because of that fact; however, it is only women who  will find themselves in that situation, it is only women who can become pregnant. Employments such as teaching and nursing tend to be dominated by women. The marital or parental status of a women should not be a basis for dismissal.
While welcoming the inclusion of sexual orientation in the Bill I would like marital and parental status to be included also. The Minister for Equality and Law Reform may act to implement this proposal but I would like to see it inserted in this Bill so that dismissals on such grounds will automatically be unlawful.
I welcome the provision in section 3 which enables the Employment Appeals Tribunal to examine fixed contracts to see if their purpose is the avoidance of liability under the Act. Such contracts affect many women. People who are organised and involved in unions do not find themselves going before the Employment Appeals Tribunal as often as people in vulnerable areas of employment; the latter tend mainly to be women because women are concentrated in areas of employment that are less well paid and have the least favourable conditions.
Section 7 (d) (ii) provides that an employer shall not be allowed to shelter behind an illegal contract to avoid having an unfair dismissal claim brought by a dismissed employee. I agree with that provision. However, the Bill as drafted contains no provisions to deal with collusion between employer and employee. The Employment Appeals Tribunal should retain the discretion to dismiss the claim when collusion exists and thus refuse to enforce the tainted contract. At the same time, they should be able to inform the Revenue Commissioners or the Department of Scoial Welfare, as appropriate.
Section 13 proposes that people employed by an agency and working for a third party would not be regarded as employees of the agency but as employees of the third party. This could work against many women who are employed by agencies and work as temporary employees of organisations availing of the services of the agency. They could work for the agency for long periods  but not necessarily remain with particular individuals for more than a year; thus, they would not benefit from this legislation as their terms of employment with third persons availing of the agency's services cannot be aggregated. Many women work for agencies and I would not like to see them being deprived of the protection provided by this legislation.
I welcome this legislation and I welcome the Minister to the House. I listened very carefully to her remarks when she first brought this Bill before us and I agree with most of what she said. We must maintain the balance of protecting workers, particularly women, in jobs with low pay and bad conditions, and maintaining employment and encouraging people to employ others.
Mr. Daly Mr. Daly
Mr. Daly: Like most other Members I, too, welcome this legislation which arises from the shortcomings of the 1977 legislation and the necessity to amend it in the light of its operation since 1977. I agree with Senator Quinn that efforts should be made to consolidate legislation which has been amended. It is not always easy to consolidate complex legislation and it is very easy in doing so to lose sight of the major issues that need to be tackled. There has been much dissatisfaction with the operation of the Unfair Dismissals Act and any additional legislation which will eliminate such shortcomings is useful, welcome and timely.
While I agree with much of what Senator Quinn and Senator Lanigan said about the difficulties encountered by employers, we must not lose sight of the position of employees. I will briefly highlight three cases that have come to my attention in recent times, where there appears on the part of employers, to have been blatant abuse of their positions and most unfair treatment of their employees. It is important that we take measures to avoid such occurrences in future. I will give three examples, one occurred in a small privately-run company; one in a semi-State organisation and one directly involved the former Minister for Industry and Commerce.
 A matron in a small privately-owned hospice was dismissed for no apparent reason. She was unceremoniously locked out of her office. She appealed to a rights commissioner who, after long deliberation and hearing both sides, came out firmly and said she was unfairly dismissed and was entitled to compensation. She was awarded £30,000. The company did not deny they unfairly dismissed the woman but they did not pay the compensation. She sought legal advice as to how to deal with this. She was told that if she had brought the claim through the Employment Appeals Tribunal its decision would have been legally binding on the company, but the decision of a rights commissioner was not so. As a certain length of time had elapsed she could not go through. Furthermore it was doubtful if the findings of the tribunal could not be made legally binding. Therefore she has no recourse except to the High Court. This may take four to five years and she may be told that if she wins her case the company will be liquidated and the business closed down.
I cite these examples as reason to ensure this legislation affords protection in cases like these. If there are discrepancies between the operation of a rights commissioner and the tribunal, and whatever the next stage might be, then once a case commences and until it is successfully concluded, the protection of law should be available to avoid situations where people have to undertake costly High Court proceedings which may result in the full award that has been made to the person not being implemented. The legislation should provide for this situation. I support Senator Quinn's suggestion that a guide be made available. In the case I have just outlined, had the person known that the decision of the rights commissioner was not legally binding she could have taken the case to the tribunal in the first instance.
My second case concerns a skilled employee of a semi-State body, who, because of an injury sustained at work was dismissed from his job while in hospital. He was advised to take his case to the High Court. He had a personal  injury claim for injuries received at work which necessitated a stay in hospital. He took his case to the High Court and was given an award so that the case was duly resolved after about eight years. It resolved the personal injury aspect of the case but not the unfair dismissal aspect. The employee now has to take up the unfair dismissal procedure at the point at which he left it to undertake High Court proceedings eight to ten years ago. In these situations we must be satisfied that time limits do not debar the bringing of cases through recognised channels such as the Labour Court. Similarly the processing of personal injury claims through the High Court should not debar simultaneous claims being taken for unfair dismissals through other recognised channels such as the Labour Court.
Where people are dismissed from semi-State bodies while unable to work due to injuries received at work and where their claim is eventually settled because the company admits liability, the company should not be permitted to dismiss them. That practice is not fair or reasonable and legislation should prevent it.
My third case is interesting because it concerns a resignation under duress brought about by the former Minister for Industry and Commerce, Deputy O'Malley, now the leader of the Progressive Democrats. In the High Court Justice Carroll stated that the performance of the assistant secretary to the Department, who was unceremoniously dismissed from his position by the Minister had been outstanding. The official had given years of dedicated service and had risen to the rank of Assistant Secretary in the Department. After his resignation was forced by the Minister he had to proceed through the High Court.
Mr. Roche Mr. Roche
Mr. Roche: He was recognised as an excellent civil servant.
Mr. Daly Mr. Daly
Mr. Daly: He was recognised as such by the court and by the justice who heard the case.
Minister of State at the Department of Enterprise and Employment (Mrs. O'Rourke) Minister of State at the Department of Enterprise and Employment (Mrs. O'Rourke)
 Minister of State at the Department of Enterprise and Employment (Mrs. O'Rourke): It was certainly capricious behaviour.
Mr. Daly Mr. Daly
Mr. Daly: The justice said it was a sad state of affairs that a person who had given honest faithful service was treated in this fashion by the Minister, Deputy O'Malley, at the time. What redress is there through the unfair dismissals legislation for a person in that disgraceful situation? Ministers acting in that fashion should not be exempt from the terms and conditions of the kind of legislation we are debating here.
I agree and sympathise with Senators Lanigan and Quinn in their views on the creation of unnecessary obstacles for job creation and employment. We are all committed to the creation of employment but employees cannot be blackguarded. We have an obligation to ensure that does not happen and therefore I welcome this legislation. I ask the Minister whether under this amendment to the 1977 legislation the three cases I have mentioned will be included. For example, are people covered if for lack of knowledge of the legislation they fail to lodge a claim within a certain time period? Will they be denied their entitlements because there are other actions pending in courts, or because Ministers act disgracefully? Parties should be liable for their actions through this legislation. Similarly, people like those who suffered in the cases I have described should be adequately covered and protected.
Mr. Doyle Mr. Doyle
Mr. Doyle: As Fine Gael spokesperson on Labour affairs I am pleased to speak on the Unfair Dismissals (Amendment) Bill, 1993.
The Bill addresses a number of important issues relating to the Unfair Dismissals Act of 1977 and introduces a number of technical and administrative amendments. Dismissal, especially when unfair, is most distressful and I speak with some experience in the matter. Senators Daly and Roche may share my feelings. Dismissal affects not only the person involved but also his or her family. It affects everybody differently. I understand that one of the most common symptoms  is a sense of rejection. This is all the more traumatic for a person who has been in gainful employment for a long time.
Apart from the obvious impact on living standards due to loss of wages and salary, dismissal often results in temporary or long term unemployment. Prior to the enactment of the Unfair Dismissals Act, 1977, employees who were not members of trade unions had little protection under the law. In the 1960s and 1970s I was the sole employee of my employer and this class of employee is the most vulnerable. While I never feared unfair dismissal, I nevertheless realised that I had little protection against wrongful dismissal. I took some consolation from a case during that period and it reminds me of a case that Senator Daly mentioned a moment ago. The director of a well known institution in Dublin who felt that he was wrongly dismissed brought his case to the Labour Court where he was successful on the grounds that the Labour Court was a patron of the worker. That was before 1977 when the 1977 Unfair Dismissals Act brought about a significant change in the situation. Employees in non-union employment or poorly organised unions found after 1977 they had some protection against unfair dismissal. Even those who are critical of the Act agree that employees need legal safeguards against the actions of the minority — and I stress minority — of employers who resort to instant and unjustifiable dismissals.
It is obvious from the discussion document that the 1977 Act has succeeded in reducing the number of disputes arising from unfair dismissal. My only criticism of the Act is that procedures under the Act were established to ensure informal hearings for workers but these have become legalistic. The statutory function of a tribunal under the Act is to adjudicate disputes rather than resolve them through conciliation or mediation. Disputes must be decided through procedures that are fair to both sides but legalism should be kept to a minimum. I think this point was also mentioned by Senator Quinn.
 The discussion document refers to a pre-hearing assessment. These assessments can be called at the instigation of either party or of the tribunal where the case of either party appears to be negligible, frivolous, vexations or unlikely to succeed. A warning could be issued that if the case were pressed to an unsuccessful hearing costs might be awarded against the party concerned. The discussion document notes that such a system would not be without risk. Preliminary assessments might take such time as to render them worthless for the purpose of expediting the conduct of the tribunal. More importantly, the discussion document states that great care would have to be taken not to deprive any worker of a right to have a case fully examined. The advantages and disadvantages of a system of pre-hearing assessment would have to be carefully balanced but there is some merit in examining it.
The discussion document refers to the appeal procedures also and argues that legal changes may be necessary in the appeal procedures under the legislation. At present, either party to a dispute may appeal a determination by the tribunal to the circuit Court. It was originally envisaged that appeals to the court would be relatively infrequent. However, a significant number of determinations have been appealed to the court in recent years. As the discussion document states, the purpose of establishing an informal tribunal with industrial relations expertise has, to some extent, been undermined. This is an unfortunate aspect of the manner in which procedures have been adopted under the Act.
When the Act was initiated a legalistic framework was not intended but has since developed and must be guarded against.
The ICTU, FUE and the Employment Appeals Tribunal have expressed dissatisfaction with the role of the Circuit Court. Once it is decided to appeal, the Circuit Court can order a complete rehearing where both parties can call further evidence if they wish and all the issues are opened again. A further anomaly  requiring reform is the provision for an appeal of a Circuit Court decision to the High Court appeal also takes the form of a complete rehearing of all the issues both parties are free to call new evidence.
The tribunal is not a court of law and can relax the rules of evidence but when appeals go to the Circuit Court stricter rules of evidence apply. It is quite anomalous to provide for the rehearing of a case from a tribunal which operates one set of rules in a court which operates under another set. It is necessary that one has a right of appeal but it should be to a body constituted in a similar manner to the tribunal and which will apply the same rules of evidence and standards. I intend to table an amendment on Committee Stage for the setting up of such an appeals tribunal.
I welcome section 5 which extends the scope of section 6 (2) of the Principal Act to include sexual orientation in the list of reasons for dismissal which are automatically deemed unfair for the purpose of the legislation.
Section 6 amends section 7 of the Principal Act by allowing a rights commissioner, the Employment Appeals Tribunal or the Circuit Court to award compensation of up to four weeks for unfair dismissal in a case where no financial loss was incurred by the employee. I favour the tribunal having the power to make this basic award where reinstatement is inappropriate. I think Senator Lanigan misunderstood that section of the Act which deals with a person who is not reinstated but who suffers no financial loss. This award would compensate the employee for the unfairness of the dismissal. The biggest loss an unfairly dismissed employee suffers is due to the injustice of the dismissal and four weeks salary would sometimes be insufficient to compensate for that. I am pleased to note under the same section that payments to employees under the social welfare and income tax codes can be disregarded. The Minister has taken the fairest approach to that problem by eliminating them altogether.
Where an employer fails to implement  an order made by the Circuit Court on appeal or a determination of the tribunal section II allows the employee concerned or the Minister on his or her behalf to apply to the Circuit Court for an order directing the employer to implement the determination. The Circuit Court is empowered to make an order against the employer which would include the interest on any financial compensation award. The charge on the interest should be levied at the penal rate imposed by the Revenue Commissioners on tax withheld.
The Minister said in her speech:
The emphasis in the Unfair Dismissals Act, 1977 is the protection of employees from being unfairly dismissed from their employment by setting down criteria by which dismissals are to be judged unfair and by providing an adjudication system and redress for an employee whose dismissal has been found to be unjustified.
The Minister said she believed the objectives remain as valid today as they were in 1977 and I concur with that view. After 15 years in operation, this Act has worked well but it is right that it should now be reviewed and that there should be a White Paper discussion document. The amending Bill should be reviewed and a number of amendments to it will be proposed on Committee Stage.
Mr. Roche Mr. Roche
Mr. Roche: I welcome this legislation which may move towards the implementation of an undertaking given in the Programme for a Partnership Government to review labour legislation to ensure that full protection is afforded against all forms of discrimination, especially against minority or disadvantaged groups. The programme lists, as Senators know, a series of possible discriminations against which the parties which formed the Government have set their face. These include discrimination based on religion, age, handicap, race, colour, sexual orientation, national or ethnic origin. The latter is intended to cover discrimination against any self defined class or subgroup, including people with  their own specific identity such as members of the travelling community. All civilised persons must welcome this commitment and also welcome the first step towards the implementation of the commitment contained in this Bill.
The primary legislation in this area, the Unfair Dismissals Act, 1977 has served us well. Prior to the enactment of that legislation few protections were available to the worker faced by unfair, unjust, arbitrary or wrongful dismissal. The only protection a worker had was that afforded by a trade union and the threat of strike action.
The Unfair Dismissals Act, 1977 provided the worker with legal protection so that dismissal could only take place where substantial grounds justified the dismissal and when the action taken by the employer was procedurally correct. The Act put in place a system for the investigation of claims of unfair dismissal, for certain categories of workers, by rights commissioners and for others by the Employment Appeals Tribunal. These measures were both positive and progressive. Where an individual was found to have been unfairly dismissed, the Act provided for redress by reinstatement, re-engagement or compensation for financial loss.
It has become fashionable in some quarters to question the unfair dismissals legislation and to suggest that this legislation has, in some way, placed excessive restrictions on employers. The Minister of State, Deputy O'Rourke, pointed out that the Act is often used as an excuse by employers to account for their failure to create jobs. The argument is made that because we have made it difficult to dismiss, we have made it difficult also to hire. Some elements of that argument have been outlined in contributions today and previously. This argument suggests an arbitrary dismissal should be the prerogative of one party to the employment contract, the more powerful party, and that society should accept such arbitrary behaviour as the price of job creation. Like the Minister of State, I reject this argument totally and if both sides of the House considered it they would reject it,  too. The argument is morally unacceptable in a civilised society. Intellectually, this argument is equally bankrupt. The disharmony following an unfair dismissal or even the fear of arbitrary unfair dismissal may contribute towards an industrial relations climate not conducive to progress.
The study conducted by the Department of Industrial Relations at UCD on the impact of the 1977 legislation highlights the value of our unfair dismissals legislation and underlines the positive contribution it has made towards industrial relations. I would argue that the Unfair Dismissals Act, 1977 contributed to the industrial peace and harmony which Ireland enjoyed in the 1970s and 1980s and has entitled us to de-escalate a climate of warfare which marred industrial relations previously and which did more economic damage than the positive impact of the 1977 Act could undo. The UCD study debunked the myth that it has become impossible for an employer to discipline or dismiss a worker whose performance is unsatisfactory.
Since 1977 a comprehensive and well-tried code of practice relating to control, discipline and, ultimately, to dismissal has been devised and is now well understood by employers and unions. Instead of the chaos which reigned under the pre-1977 arrangements, this Act substituted a degree of certainty in the workplace.
I cannot accept the argument put forward here, that the Unfair Dismissals Act, 1977 is, in some way, negative. On the contrary it has been beneficial to those in employment and has fostered harmonious industrial relations which have led to industrial progress. Any costs associated with this Act are infinitesimal when compared with the savings of time lost during down time, strikers and so on which the Act has helped to obviate.
I am, however, less certain that the law and its associated entitlements and obligations are properly understood by workers. A number of Senators have already mentioned this. Small firms and companies which are not unionised must be educated on this subject. In some cases which I hope are a small minority —  workers do not understand their positive legal position and their ignorance is often shared by their employers. In my own constituency, constituents have come to clinics to present cases which clearly infringe the law, indicating that both employers and employees are ignorant of the law. Perhaps the Minister of State, the trade unions and employers' organisations could get together to prepare and distribute a simple guide outlining the rights and responsibilities of both sides in the employment contract.
I welcome the provisions continued in section 2 that an award entitles an employee to benefit from any improvement in terms of conditions of employment which may occur between the date of dismissal and the date of reinstatement. We must ensure that a worker returning to the workplace after an unfair dismissal does not become stigmatised, suffer trauma or lose a position or seniority in the firm.
The fixed term provisions contained in section 3 are welcome. Contract employment is becoming a fact of life and by dealing with contracts, by fixed term provisions, progress is being made.
Section 5 extends the scope of the Principal Act to include sexual orientation and that has been welcomed by other speakers. I wonder whether section 5 covers all forms of discrimination mentioned in the Programme for a Partnership Government? Perhaps the Minister will respond.
The provisions contained in section 6 are also welcome. This amendment will allow the rights commissioner to award compensation of up to four weeks in cases where no financial loss has been incurred by the employee. Some speakers have suggested that four weeks may be too lenient, others that may be too much.
Considerable trauma is experienced by those who are dismissed. Senator Doyle suggested a number of Senators have experienced that trauma recently.
Mrs. O'Rourke Mrs. O'Rourke
Mrs. O'Rourke: So have I.
Mr. Roche Mr. Roche
 Mr. Roche: The Minister of State has had that experience too.
Mr. Doyle Mr. Doyle
Mr. Doyle: To a lesser extent.
Mr. Roche Mr. Roche
Mr. Roche: It helps to concentrate the mind that our tenure is more tenuous than that of most other employees. We are servants of the people, but we do not have contracts.
It is important that financial compensation be provided for the trauma of unfair dismissal and I believe that is the point of section 6. It would be a salutary experience for employers to have to pay compensation even when a worker is reinstated. Senator Doyle suggested we might keep the impact of this and other changes under review and this is a good idea.
Section 7 provides that an explanation of the decision of a tribunal or court be given and that is a welcome change. The reasons for decisions of courts or tribunals often mystify us and it is helpful that they be made public in order that we may understand the operation of the legislation. Section 8 expands the time limits for notice of appeal and that is also welcome. The Minister explained that section well. I welcome section 13 which extends the scope of the Unfair Dismissals legislation to include persons employed through employment agencies.
As Senator Daly said, we must address the issue of unfair dismissals in the public service. The general belief has been that civil servants can only be dismissed by Government. In the case of Ted O'Reilly, the Assistant Secretary of the Department of Industry and Commerce bully tactics and unacceptable behaviour by Government were clearly indicated. I know Ted O'Reilly well. He was a colleague in the Civil Service and lives in my constituency. He is well respected in the community.
It is extraordinary and unacceptable in a civilised society that a civil servant of that seniority in position and age should have to go to the courts to seek redress for behaviour which was odious in the extreme. The Minister did not even have the courage to do the brow beating in  person but delegated other civil servants to do it. That civil servant had a distinguished career in his Department. He served the Department and the nation well. His treatment illustrates that there is a lacuna in the law and civil servants, faced with such behaviour have no protection.
The civil servant in that case, and in other cases, could perhaps dig in their heels and endure the indignity of a dismissal by Government. We would probably have had a crisis in the last Government if that had happened because I do not doubt that a bully will always be a bully. The treatment of that civil servant was odious and illustrates a lacuna in the law that we, as lawmakers, should speedily address. If there is no protection in law other than court action available to senior civil servants——
An Leas-Chathaoirleach An Leas-Chathaoirleach
An Leas-Chathaoirleach: I ask the Senator to refrain from mentioning that case.
Mrs. O'Rourke Mrs. O'Rourke
Mrs. O'Rourke: We had a debate on it already.
Mr. Roche Mr. Roche
Mr. Roche: I am making the point that the case, which has concluded in the courts, illustrates a lacuna which still exists in the law. Senator Daly referred to the unfair treatment accorded to the former assistant secretary and it is not unreasonable to highlight the gaps in the system. In deference to you, a Leas-Chathaoirligh, I will refrain from further discussion of the matter; the point has been made. The legislation is progressive and welcome.
I was remiss in not wishing the Minister of State well in her new appointment. I wish her well and I am sure she will bring the same enthusiasm and distinction to that Department as she brought to the others in which she has served.
Mr. Sherlock Mr. Sherlock
Mr. Sherlock: The Senator should have been a diplomat. I have some comments to make on this welcome legislation and on the necessity to amend the Unfair Dismissals Act.
The Wexford case has been mentioned  in previous contributions as a glaring example of unfair dismissal. Senator Honan said the employee was dismissed because she was a woman and pregnant. She was dismissed in truth because she had a relationship outside marriage and became pregnant. That was a case of glaring discrimination and points up the need to update the legislation.
I am disappointed that the probationary period in employment continues to be 12 months. I am open to correction on this but I have not seen the requirement amended. Other EC countries have a six month probationary period. Members who spoke on this Bill earlier gave the impression that unfair dismissal legislation or labour law generally militates against employment and small employers. Nothing could be further from the truth. This legislation is intended as a protection for employees in a contract of employment with employers. The rights commissioner, the court or tribunal decides if there has been a breach of the Act or of the procedures.
The impression was given in a statement by a Senator who employs 3,000 people that such legislation hinders employment. He wondered if he could have achieved his present level of success had this legislation applied when he started his business.
The impression given, that labour law militates against employment, is a distortion of the facts. Employers are, in certain respects, taking advantage of employees who have been in their employment for a long time. There was a case last week in which a person, after 15 years loyal service was transferred to another Department without explanation. That action was designed to encourage the employee to leave the employment so that somebody else could be recruited from a local FAS office or employment exchange under one of the employment schemes. Without the necessary legislation to protect the interests of employees that kind of thing can happen. Employers would argue that the probationary period should be two years.
Section 3 in this amended legislation  protects the interests of employees with fixed term and fixed purpose contracts of employment. Such protection is necessary because the new system of contracts being adopted by employers is different from normal procedures for employment. Section 5 of the Bill on the question of sexual orientation has been welcomed by all Members and is good news for the gay and lesbian organisations. It is only proper that a person should not be discriminated against on account of their sexual orientation. In section 7 the fine for non-compliance is increased from £20 to £1,000 which should deter employers from non-compliance with determinations of a right commissioner, court or tribunal. The increase in fine will rectify that situation.
The Congress of Trade Unions has made a submission with which I agree. I notice from recent figures among the decisions by the Employment appeals Tribunal in 1989, 136 cases were upheld and the average compensation level was £3,232. In only 30 cases applicants given their jobs back. That is a trend that is developing and I ask the Minister to examine the situation. It is unsatisfactory in some instances.
In the appointment of a full-time chairperson, eligibility should be extended outside the legal profession. The record will show that there has been a big increase in the number of unfair dismissal appeals. In 1990 5,969 appeals were referred to the tribunal, compared with 4,523 the previous year. That is a trend which is developing.
I would like to refer to a point which was raised previously. Provision should be made in this amended legislation to allow people elected to either House of the Oireachtas to take leave of absence from their jobs on their election and protect them from dismissal. This would ensure that if they subsequently lost their seat, they would still have a job. I will propose an amendment to that effect. Some, if not all, of the semi-State bodies have this protection and it is very important to provide for this.
It is time to amend and update the  Unfair Dismissals Act, 1977. This legislation protects the interests of people in employment. Such legislation should not be necessary but many cases arise and it is essential to have the rights of employees protected by law.
Minister of State at the Department of Enterprise and Employment (Mrs. O'Rourke) Minister of State at the Department of Enterprise and Employment (Mrs. O'Rourke)
Minister of State at the Department of Enterprise and Employment (Mrs. O'Rourke): I wish to thank everyone who contributed to the debate on the Bill. It was interesting to see the progress on Second Stage and to hear the different and legitimate points of view.
I would like to read into the record of the House the names of the Senators who contributed on Second Stage. There were 15 contributors which is indicative of the widespread interest in the Unfair Dismissals (Amendment) Bill, 1993 in this House. The contributors were Senators Neville, Hillery, O'Toole, Maloney, Gallagher, Howard, Mooney, Quinn, Norris, Lanigan, Honan, Daly, Doyle, Roche and Sherlock. I was glad to hear from many old friends who were in the other House and new Senators and to note that they have not lost their vim.
I am glad we were able to introduce this legislation in the Seanad. There is a welcome and wide range of views in a Chamber such as this and the debate on Second Stage was a clear indication of that. Members of the Seanad are elected by county councillors and other elected bodies. The vocational nature of the representation leads to a diversity of views. One sometimes hears that the Seanad has been too party political, which it has in many senses. However, Senators are elected from an electoral base which, although narrow, is clearly defined in its representational nature and this is reflected in the wide range of viewpoints.
There is an ease of expression in this Chamber, which is not evident or possible in the other Chamber and which is mainly due to the Cathaoirleach's benign influence. From time to time he allows an intimate rapport and approach in the discussion of such Bills which the other House, because of its nature, does not allow. It makes for better debating, an  easier rapport and enables people to listen very attentively to what others say.
I know the Seanad has made real efforts over the past number of years to be seen as relevant to the democratic process. The introduction of legislation such as this in the Seanad and the amendments which will be put forward on Committee Stage will enable Senators to express their different points of view. On the first day the debate was of a more gentler nature; today there was a debate of considerable vigour.
Senator Neville was the first speaker on the first day of the debate, he was perturbed, as were other Members who spoke later, about what they saw as the too legalistic approach in the unfair dismissals provisions and warned against it. At the time I said it was a matter in which I was interested and that I would bring it to the attention of those who use the various fora whereby redress can be obtained. It is not in the spirit of the Bill that that tendency should continue.
Senator Hillery on behalf of his party welcomed the emphasis in the Bill on procedural fairness on which there was further discussion. Senator Neville was also perturbed about the possibility of an employee seeking redress for an unfair dismissal under industrial relations under various headings. For the information of Senators, redress under unfair dismissals legislation and employment equality legislation has been prohibited since 1977 under a section of the Employment Equality Act, 1977 and this measure similarly forbids it.
Senator Neville asked about protection under the legislation for employees who had given what they regarded as important facts to politicians in the beef tribunal. While I understood the point being made, it would be inappropriate for me, as Minister of State with responsibility for Labour Affairs, to speculate on the independent performance of the rights commissioner or the Employment Appeals Tribunal, of courts, or their decision in any particular case. Unfair dismissals legislation provides redress for any employee who is dismissed without substantial cause. I understand the point  the Senator was making and he was right to express his disquiet. However it would be wrong to be discriminatory by dealing with a specific case rather than taking the general point of view that redress available is to employees.
Both Senators O'Toole and Gallagher questioned the procedures proposed in the Bill relating to enforcement hearings by the Employment Appeals Tribunal or Circuit Court following the non-implementation by an employer of an award. To deal with this issue, I explained the procedures. There was a worry expressed that both procedures or any number of procedures could be tried and the most favourable followed. That is not the position. Section 11 which replaces section 10 of the 1977 Act separates the two procedures and in so doing clarifies the role of the tribunal or court in an enforcement case. Enforcement procedure arises only where an employer has not followed through on an award. I could comment at greater length on all the points of view expressed but it would be better to deal with them in a general manner. I wish to deal with what I regard as the main thrust of the debate because my job is to reflect and to comment on what Senators said. Different viewpoints were expressed on the tendency of legislation such as this to inhibit the retention and growth of employment and I will deal with this matter later.
Senators Neville and Gallagher referred to an apparent discrepency between this legislation and the minimum notice legislation. We have found no evidence of this. If the Senators have knowledge of any determination of a tribunal based on such an interpretation I would be glad to hear it because we can then examine it on Committee Stage.
Senator O'Toole spoke about the continued exclusion of Garda and Army personnel from protection under this type of legislation. The Gardaí and Army are among a group of public servants excluded from the protection of the Unfair Dismissals legislation for a variety of reasons. This was touched on by both Senators Daly and Roche when they named a particular assistant secretary of  a Department whom it has been alleged was capriciously dismissed. It has been alleged that pressure was brought to bear on him which led to his decision to leave. Separate groups like the Garda Síochána and the Defence Forces are generally party to separate dismissal and grievance procedures distinct from those provided in this legislation. I know Senator O'Toole intends to bring forward an amendment on this matter and obviously it is his right to do so. Our right is to debate the matter when it comes forward. Both of those groups have procedures whereby grievances and other matters with regard to employment can be raised.
Senator Maloney expressed concern about the small number of cases heard by the Employment Appeals Tribunal where reinstatement was ordered. This issue is often discussed and it is said that reinstatement is the correct and just solution if an employee is found to have been unfairly dismissed. That is fine in theory but reinstatement is not always desired because of bruised feeings or feelings of antipathy that may arise between employees or between employee and employer. This is especially likely in smaller firms.
The small nature of so many Irish firms may be part of the explanation that Senator Maloney seeks in relation to the small number of reinstatements. I am sure that the Tribunal in its wisdom makes the appropriate order in each case having regard to the facts.
Senator O'Toole drew attention to the revised definition of trade union proposed in the Bill and questioned the effect of that with reference to the Trade Union Act 1971. I assure the Senator that the proposed deletion is consistent with the definition of trade union in the Industrial Relations Act 1990.
Every speaker who contributed to the debate welcomed the sexual orientation provision in the Bill. Senator Lanigan disagreed with the level of media attention which has been given to this matter but that it is natural when a new item is introduced into legislation. I am glad I was able to have included it in the Bill.  I thank the Senators for their humane response; it is a small and necessary step.
Senator Gallagher referred to the need to consider the application of unfair dismissals legislation to apprentices. She spoke of the welcome inclusion of apprentices in the protection provided against dismissal for trade union activities. Apprentices are covered by the terms of the 1977 Act and this Bill will do nothing to dilute the protection afforded by the original Act. There are certain limited exclusions in relation to statutory apprenticeships and they are outlined in section 4 of the 1977 Act.
The question of contracts of employment were raised by Senator Mooney who spoke of his own case. The Senator was quite right to mention it because this is a forum where an example can be given to illustrate a point in legislation. I encourage the Senator to use the legislation if he wishes to pursue his point with his employer. Senator Mooney made interesting observations on the Bill and pointed out the need to be ever vigilant with regard to legislation that affects both employers and employees.
Senator Gallagher expressed concern about the lack of information for employers and employees on their rights. This point was raised by other Senators also. There is a guide available and I intend to discuss it because it was raised specifically by Senators Quinn and Daly. This is a matter to which I have been giving attention.
It was refreshing to hear Senator Quinn who was a practical exponent of another point of view. His contribution was mainly on the need for balance with which I concur. I spoke on that matter on Second Stage as I was aware when I took this portfolio that people had conflicting ideas about employment legislation. My views on the matter are similar to those put forward by Senator Quinn. He mentioned balance, small firms and social dumping which he was afraid could emerge, as well as the need to have clarity and consolidation in labour legislation. Senator Daly also referred to those points as well as other matters. I intend to dwell on these for a while, informally, so that  we can see the path on which the Government has embarked. I see no conflict between protection of employees' rights, proper working habits, and a proper working environment between employees and employers. It is that kind of balance which we have sought to bring in Irish labour law.
Sometimes the titles we put on Bills lead employers to believe that we are dealing with business which is not actually contained in the Bill. When I became Minister of State and saw that this legislation was one of the first items that had to be tackled, I felt the term “unfair dismissals” was not really accurate because it evokes different things for different people. The original legislation was the Unfair Dismissals Act, 1977, and what we are discussing here are obviously amendments to that Act. It benefits employment, the business environment and the country if there is a harmonious, balanced and good relationship between employees' rights and employers' rights. That is what Senator Quinn was saying when he talked about the need for balance. I was disturbed by his remark that he was starting in business again, if he might be daunted by the range of legislation which has since emerged. I am going to make a real effort to bring about a realignment of differing views because I do not want to see a chasm opening up between employees and employers. That would not be to anyone's benefit.
In general we have had a harmonious period in labour relations since the Programme for National Recovery and the Programme for Economic and Social Progress, and I hope the same will apply in the next arrangement we make. Since there have not been too many hiccups along the way, we are inclined to forget the periods when there were many major strikes, sometimes sparked off by one employee being wrongly treated and bringing out an entire workforce. We are inclined to forget the “bad old days”, and take for granted the kind of protection which we have been able to enshrine in legislation dealing with the Employment Appeals Tribunal and other agencies. I  am not preaching to anyone but I recognise there are fears.
We have to do something about clarifying the legislation, providing a simple guide in simple language as distinct from a convoluted guide, and we have to do something about proper consolidation. They are areas that can be looked at and they will help both employees and employers.
Senator Norris expressed his point very clearly. I thank the Senator for his comments; he was quite right. People did not come forward, give their names and say: “Yes, I have been dismissed and I think it is because of sexual orientation.” To do so would only have drawn attention to themselves at a time and in a climate when it was not fashionable to do so. I share the Senator's point of view that this will provide a strong measure of protection on the issue of sexual orientation.
Senator Lanigan had some trenchant things to say and, nothing that it is a technical piece of legislation, he regretted the media were hyping up the matter. Senators Lanigan and Quinn asked for small firms to be exempt from the small print of much of this legislation. We have looked into the matter and, while I know the UK authorities are attempting to do that, it would not be possible here because of the Constitution. These are matters which have to be taken into account and I will give them further thought.
Senator Lanigan seems to have misread the Bill when he suggests that the award would be payable in circumstances where the employee is reinstated. Obviously that is not the case. You cannot get two awards, by being reinstated and receiving money for unfair dismissal. It is one or the other. The financial award would be applicable only where the employee is proved to have been unfairly dismissed and where reinstatement is judged by the tribunal as not being the appropriate method of redress.
I was very interested in Senator Honan's contribution, and I thank her for her work with the Commission on the Status of Women. I know she had a  considerable input into that commission's sub-committee dealing with business, and this was reflected in her contribution today which was practical and down-to-earth.
In replying to Senators Doyle and Daly, I would make the point that the Bill is primarily concerned with ensuring that the rules of natural justice are complied with by employers. It is nothing more or less than that. We do not intend to affect adversely any employment generating opportunities.
Senator Honan welcomed the provision for contracts, particularly as it would affect women employees, but wondered about the necessity to include it in the Bill. On balance, it is correct because it will give better protection to the groups of employees about whom the Senator spoke. There is confusion and ambiguity because people desperately want contract employment to be included and then they wonder if it will affect people who do not want that kind of employment. I found Senator Honan's proposals most interesting and I would be interested to hear what she has to say on Committee Stage.
Regarding parental status and other matters of discrimination raised by Senator Honan, my colleague the Minister for Equality and Law Reform, Deputy Taylor, is looking at that in the Equal Status Bill and other anti-discrimination legislation which he is preparing. When that is done, we may have to move an amendment to deal with that, but I am not yet sure of the position. The Minister is certainly working on it and it seems to be a better channel than this one for that type of legislation. The matter can be looked at later on.
Senator Daly took up many of the points raised by Senator Quinn. He then discussed three cases which had been brought to his attention; a matron of a small hospital who was dismissed, an employee of a semi-State company dismissed while in hospital through an injury suffered at work and an assistant secretary of a Government Department  forced by duress to resign. These cases were also mentioned by Senator Roche.
Senator Doyle made a very interesting contribution. It was clearly thought out and represented a very balanced viewpoint. He was speaking from the point of view of the employee but did not disregard the employer's point of view. I found his contribution refreshing, balanced and open. Senator Roche obviously studied the rationale behind the legislation carefully. His contribution was interesting in that he discussed the original Bill and its proposed amendment comprehensively.
The last speaker was Senator Sherlock who regretted the time limit for lodgment of a claim in exceptional circumstances was not brought back to six months. One group wanted a limit of six months and another a limit of two years so we decided to leave it at 12 months, which is a clear indication of balance in the matter. We are endeavouring to live in a civilised and humane community. There is no point in taking any viewpoint to extremes. This legislation has proved since 1977 that it is not a hindrance to employment. It has encouraged employers to be more clear thinking and disciplined about employment procedures.
There is nothing in this legislation which would hinder employment retention or growth. It marks out clearly the rights, duties and responsibilities of employee and employer. We do not want employment at any cost. That would not be the correct way to deal with labour matters.
There is a need to be very clear about what we are doing. We must avoid the use of jargon. Employers and employees may be assured that measures such as this are not brought in to be punitive or to be prohibitive. This Bill is an effort to redress issues which have arisen from the 1977 legislation that require amendments to the Act.
I intend to take up some of the points raised with regard to clarity of language and consolitation and I will consider the publication of simple guide books for employers and employees on their rights.
I welcome the contributions from all  sides and I have greatly benefited from their depth and diversity. I look forward to Committee Stage of the Bill.
Acting Chairman (Mr. Maloney) Acting Chairman (Mr. Maloney)
Acting Chairman (Mr. Maloney): Thank you, Minister. You are always very well versed on the Bill being discussed.
Question put and agreed to.
Committee Stage ordered for Wednesday, 6 April 1993.
Sitting suspended at 1 p.m. and resumed at 2.30 p.m.
Seanad Éireann 135 Unfair Dismissals (Amendment) Bill, 1993: Second Stage (Resumed).