The Gazette 1980

GAZETTE

JUNE 1980

unfair independently of any excuses or justification on the employer's part. Alternatively, it could be argued that (2) Section 5(2) does not effect a conclusive presumption; instead Section 6(1) applies to dismissals under the sub-section as to other dismissals 'for the purposes of the Act. Thus an employer could prove that his decision to dismiss selectively contrary to section 5(2) was not unfair 'having regard to all the circumstances'. The merits of dismissal would be relevant. Concerning the implied principle it may be argued that (1) the contrary implied presumption in Section 5(2) is conclusive; in other words, a non-discriminatory dismissal would be conclusively presumed not to be unfair. An employer could thus dismiss all of the workforce for taking part in industrial action and not contravene the legislation. The principle of inclusio unius exclusio alterius would apply. Alernatively, it could be maintained that (2) the contrary implied presumption is not conclusive. A non-selective dismissal is no less a dismissal 'for the purposes of this Act' than any other. Section 6(1) would apply and an employer could argue the merits of his decision. Interpretation of Express Presumption The first two possibilities concern the positive element or express presumption in the Act and may be considered together. Section 6( 1) states the underlying principle upon which the Act is based: a dismissal 'for the purposes of this Act' is presumed unfair unless there are substantial grounds to justify it. This is 'subject to the provisions' of Section 6. That section enumerates certain grounds which are generally believed to render a dismissal automatically unfair. 6 No reference is made at any point, either directly or indirectly, to dismissal for taking part in strike or other industrial action. Looking at the plain words which are used in the Act, it is clear that Section 5(2) does not effect a conclusive presumption of unfairness. Whatever may have been intended by the legislature, Section 6( 1) is so drawn as to flood the entire Act. Every dismissal 'for the purposes of the Act' is deemed unfair unless there are substantial grounds to justify it. Section 5(2) dismissals are no exception. It may be argued in support of the present law that it is reasonable to allow an employer to adduce substantial grounds justifying the selective dismissal of strikers. Employers are no less vulnerable than employees to victimisation on account of industrial action. And if industrial action is accompanied by unlawful activities such as violence, obstruction or threats, would an employer be dismissing unfairly if he took back into employment only those workers who had not engaged in unlawful activities? (see, analogously, ss.57(3) and 62, EPCA, 1978, which do not lay down a conclusive presumption.) This argument is, however, inconsistent. It confuses the various incidents or results which may accompany strike action with the act of striking itself. If Section 5(2) were to embody a conclusive presumption, that would not preclude the possibility of an employer dismissing workers because they used unlawful acts or methods in connection with strike action. In such circumstances the cause of dismissal would not be the act 103

The Governing Body's Committee ort Freedom of Association has frequently reiterated in its interpretations of these two conventions that, although there is no express reference to strike action in them, they impliedly guarantee a right to strike: Freedom of Assembly: Digest of Decisions of the Freedom of Assembly Committee of the Governing Bodv of the ILO: Geneva, 1972, paras. 240, 292. Bearing in mind the foregoing considerations of constitutional and international law, we turn to consider the meaning of section 5(2) of the Unfair Dismissals Act. The Meaning of Section 5(2) During the Committee Stage of the Unfair Dismissals Bill in Dáil Éireann, the Minister for Labour explained the intention behind section 5(2):— ' . . . that no individual victimisation would result from a return to work after a trade dispute' further 'Ithel section would cover a number of employees who would collectively feel themselves victims of unfair treatment at the hands of the employer" 4 . Dismissal in the circumstances referred to in Section 5(2) is 'deemed' unfair. At first glance, dismissal for taking part in strike or other industrial action belongs to the category of 'automatically unfair' dismissals (see, in this context, Section 6(2) and (3) of the Act). There is no doubt that unions and employers regard it in that light. The 'deeming' in Section 5(2) would be straightforward were it not for Section 6(1) of the same Act which provides: 'Subject to the provisions of this Section I i.e., Section 61 the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal' (emphasis added). By virtue of this blanket declaration all dismissals are deemed unfair for the purposes of the Unfair Dismissals Act. What is the relationship between Section 5(2) and Section 6(1)7' Possible Interpretations Contrary to the commonly held belief as to the intention of Section 5(2), the sub-section may be interpreted in four possible ways. The first two relate to the principle which is enunciated in the text; the second to the contrary principle which is implied therein. Interpretative difficulties arise in relation to non-selective or non-discriminatory dismissals which are not covered by Section 5(2) but which arise in precisely the same circumstances (where workers have participated in strikes or other industrial action). Does the Act imply that these are outside its jurisdiction? Here, too, there are alternative interpretations. In relation to the positive principle which is specified in Section 5(2), it may be argued that (1) the sub-section effects a conclusive presumption that selective or discriminatory dismissals for taking part in strike or other industrial action are unfair. (This is generally regarded as the intention behind sub-section 2). Thus the adjudicating bodies would treat dismissal in the circumstances of Section 5(2) as automatically