The Gazette 1980

JUNE 1980

GAZETTE

Dismissal for participating in Strike or other Industrial Action: Section 5(2) of the Unfair Dismissals Act, 1977

Mary Redmond, B.C.L., LL.M, Solicitor, Fellow of Churchill College, Cambridge.

The Need to Regulate Loss of Employment in Strikes It is sometimes forgotten that collective labour relations is not principally about industrial action but the promotion and regulation of collective bargaining. This includes as one element the protection of the freedom to strike. The freedom to strike is a crucial factor in the conflict between the principal interest of management and of labour in collective bargaining. The principal interest of management has always been the maintenance of industrial peace over a given area and period. The freedom to strike plays an important role in assisting the principal interest of labour, namely, the creation and maintenance of certain standards over a given area and period — standards of distribution of work, of rewards, and of stability of employment. As Lord Wright put it in 1942, in Crofter Harris Tweed v. Veitch, '[Thel right of workmen to strike is an essential element in the principle of collective bargaining'. It is an essential element not only of the unions' bargaining power, that is for the bargaining process itself, it is also a necessary sanction for enforcing agreed rules. If employees are penalised for taking part in strike action, industrial relations consequences vary depending on the strength or weakness of the union or unions involved (although strikes need not be associated with unions). If a union is weak, there will be little effective resistance to the actions of a hostile employer. The concentrated power of accumulated capital can be matched only by the concentrated power of workers acting in solidarity. As long ago as 1896, in Vegelahn v. Guntner, Oliver Wendell Holmes, in a classic passage of a dissenting opinion in the Supreme Judicial Court of Massachusetts, stated that 'Combination on the one side is patent and powerful. Combination on the other is the necessary and desirable counterpart, if the battle is to be carried on in a fair and equal way'. Where there is nothing like equilibrium between labour and management, there is a pressing need for legislation to regulate the loss of employment in strikes. This need is increased by the uncertainty of common law rules concerning the effect of strike and other industrial action on the individual contract of employment. In this context, Section 5(2) of the Unfair Dismissals Act, 1977, is of crucial importance. The sub-section purports to deal with the dismissal of employees for participating in strike or other industrial action. It provides that 'the dismissal of an employee for taking part in a strike or other industrial action shall be deemed, for

the purposes of this Act, to be an unfair dismissal, if

(a) one or more employees of the same employer who took part in the strike or other industrial action were not dismissed for so taking part, or (b) one or more of such employees who were dismissed for so taking part are subsequently offered re-instatement or re-engagement 1 and the employee is not.' The sub-section has been described (correctly, as will be seen) as an 'extremely obscure and technical' provision. 2 There is no empirical evidence of the number of workers who lose their jobs through striking: nonetheless, given the high number of man-days lost each year on account of strikes, it is telling that the sub-sectioin has never been invoked (Official Statistics published in the Central Statistics Office in March, 1978, issue of the Irish Statistical Bulletin show that there were 152 disputes in 1978 involving 32,558 workers with a loss of 624,266.) Prima Facie, Section 5 protects the freedom to strike. It is consonant with the theory that Ireland recognises a positive right to strike in domestic and international law. This article will touch on the extent of such recognition before proceeding to examine Section 5 (2) and the extent to which it may be said to achieve the desired equilibrium between laour and management where job security is at risk on account of industrial action. British Law is referred to where appropriate or enlightening. The Right to Strike — Constitutional and International Law: A Fundamental Right In the constitutional sense, the right to strike is a human right, impliedly recognised by Art. 40.3g. Bunreacht na hÉireann. The right has not been analysed in any depth. On three occasions, it has been referred to, obiter, by judges. The first reference occurs in Brendan Dunne Ltd. v. Fitzpatrick and Others I 19581 I.R. 29, 34. Mr. Justice Budd declared that 'The Articles of the Constitution to which I have referred I Arts. 40.3, 40.6, 431 seem to me to preserve amongst other rights those of the employer and worker respectively to deal with and dispose of their property and labour as they will without interference, unless such interference be made legitimate by law. The right of citizens to assemble peaceably, to express their opinions freely are guaranteed only subject to public order and morality'. The language here is ambigious. Only by a generous extension of the words used could the worker's right 'to deal with and dispose of his property and labour be taken to include a right to strike. It is clear that the right — 101