The Gazette 1979

GAZETTE

JULY-AUGUST

1979

Labour Law — Another Area Slipping Away

By ROBERT FLANAGAN

It has been a common complaint among Solicitors for many years that taxation is an area of law which has been allowed to slip out of the hands of Solicitors into that of Accountants and other Advisors. Recent developments in the area of labour law suggest that, notwithstanding the impetus which might have been given by the recent spate of employment legislation, this too is an area which will soon Ire largely lost to the legal profession. The participation of lawyers in the area of labour law, particularly in the area of the negotiations of settlements of industrial disputes has been at a low level in Ireland since the introduction of the Labour Court by the Industrial Relations Act 1946. The Labour Court did not welcome the appearance of solicitors qua solicitors though they were permitted to appear as spokes- men for interested parties appearing before it. Indeed the late Charles Cuffe, Solicitor, was the principal spokes- man of the Federated Union of Employers in the Court for many years. Perhaps as a result of their non-involvement in labour disputes, apart from the area of injunctions to restrain picketing, the legal profession seems to have held back from actively seeking to participate in the operation of the Employment Appeals Tribunal, ("the Tribunal") estab- lished by the Unfair Dismissals Act 1977. It appears from the reports of cases heard by the Tribunal that persons appearing before it are represented by such varied groups of people as trade union officials, accountants, and management consultants. It is true that in a number of cases lawyers have appeared before the Tribunal but the percentage of these cases is surprisingly low having regard to the legally substantial and complicated areas of law now falling within the jurisdiction of the Tribunal. It may not be fully appreciated by the legal profession (although there have been several well publicised cases which should have high- lighted the position), that the jurisdiction of the Tribunal under the Unfair Dismissals Act far exceeds the juris- diction of the Circuit Court in the amount of its awards. Many professional and white collar workers come within its jurisdiction and awards of up to £17,000 have already been made by the Tribunal. It is true that there is no provision for the awarding of costs unless a respondent has acted frivolously or vexatiously but the amounts of the awards which have been made, leave room for the charging of reasonable costs to a successful applicant. Another factor which seems not to have been fully appreciated is that a claim under the Unfair Dismissals Act is now an obvious alternative to the older common law claim for damages for wrongful dismissal, indeed an attractive alternative since the Tribunal has frequently made awards which may be substantially greater (i.e. up to a maximum of two years salary) than those which could be obtained in the ordinary courts. Because of a

provision in the unfair Dismissals Act that claims under it and claims at common law for wrongful dismissal are to be mutually exclusive it is obviously necessary for every solicitor consulted by a dismissed employee to consider immediately the advisability of proceeding under the Unfair Dismissals Act, particularly since the time for instituting proceedngs under that Act is six months from the date pf dismissal. A solicitor so consulted, who overlooks the possibility of bringing a claim under the Unfair Dismissals Act but instead choses to institute a common law action might well find himself the target of a professionl negligence action even if the common law action were successful, in that the amount which might have been achieved under the Unfair Dismissals procedure might more than likely be greater than that awarded by way of common law damages. Apart from Unfair Dismissals Act claims simpliciter, the interaction of the Redundancy Payments Acts 1967/79, the Minimum Notice and Terms of Employ- ment Act 1973 and the Unfair Dismissals Act gives rise to a good deal of what could be described as "lawyers law" in which both employers and employees may have need of careful advice from a lawyer as to which of several courses of action open to them would be likely to be the most fruitful. With this in mind the Public Relations Committee of the Law Society arranged a series of seminars through- out the country (i.e. Cork, Dublin, Limerick and Galway) on the operation of the Tribunal. The Society was ex- tremely fortunate to be able to enlist as participating lecturers, Circuit Judge John Gleeson, who had been the first Chairman of the Employment Appeals Tribunal (formerly the Redundancy Appeals Tribunal) and Ercus Stewart B.L. and Brian Gallagher, Solicitor, both of whom have extensive experience of appearing before the Tribunal. Unfortunately, the legal profession as a whole still do not seem to have appreciated the need to educate them- selves on the operation of the Employment Legislation of the 1970s and in particular the working of the Tribunal because so far the response to the Seminars has been disappointing, even when allowance is made for the present difficulty of advertising Seminars due to the postal dispute. The last of the four current series of labour law seminars was held in University College Galway on the 26th May 1979. If, as is hoped, further interest is indicated to the Law Society by members of the profession, a further series of such seminars can be arranged at various locations in the near future. . As an additional spur to the continuing education of the profession in this important and developing area of legal practice the Publications Committee hopes to have available shortly a book by Ercus Stewart B.L. on the recent labour legislation. 83