The Gazette 1980

GAZETTE

JULY-AUGUST 1980

Dismissal for participating in Strike or other Industrial Action: Section 5(2) of the Unfair Dismissals Act, 1977 Part II* Mary Redmond, B.C.L., LL.M., Solicitor, Fellow of Churchill College, Cambridge.

Interpretation of Contrary Implied Presumption There has been much confusion about the contrary implied presumption in Section 5(2) of the Act. It is commonly believed that the sub-section affords complete liberty for an employer to dismiss all of his employees during a dispute and that the question of unfair dismissal arises only where work is resumed and the employer is selective in his treatment of the workforce. Applying the principle of inclusio unius exclusio alterius it might be deduced that, by deeming selective dismissal for taking part in strike or other industrial action to be unfair, Section 5(2) by implication deems non-selective dismissal not to be unfair (conclusively or otherwise) in the same circumstances. Because dismissal of all the workforce for taking part in strike action is deemed not to be unfair, this argument proceeds, apparently logically, to the conclusion that Section 6(1) is irrelevant. Thus, non-selective dismissals are nimbly withdrawn from the protection of the Unfair Dismissals Act. It would appear that an employee dismissed in such circumstances would be left to seek redress at common law where, inter alia, he would have to overcome such obstacles as the effect of strike or other industrial action on the contract of employment. The British Employment (Consolidation) Act, 1978, (Section 62) provides for an exclusion of jurisdiction where all the workforce have been dismissed. Its wording could not be more unequivocal: unless there is discrimination in dismissal or in the reinstatement or re- engagement of workers taking part in strike or other industrial action the Act declares that 'an industrial tribunal shall not determine whether the dismissal was fair oi unfair'. 7 The belief that Section 5(2) of the Irish Act is similarly restrictive may spring in some measure from the view that Section 5(2) re-echoes Section 62 of the British Act. But there is a significant difference between the wording of the two provisions. Section 5(2) of the Unfair Dismissals Act deems it unfair for an employer selectively to dismiss in an industrial dispute situation — no more, no less. May complete freedom to dismiss non-selectively be inferred ex silentio? It should be recalled that the expressio unius rule is 'often a valuable servant, but a dangerous master to follow in the construction of statutes'. 8 As it happens, the rejection of the expressio unius rule in relation to Section 5(2) is supported by constitutional and international law obligations. As we have seen above, the right to strike is arguably a 'personal right' within Article 40, s.3, sub-s7l of the Constitution. 9 If, by striking, a person is exercising a fundamental constitutional right it would be ultra vires the Constitution if the Legislature purported to grant an immunity to employers who penalise their entire workforce by dismissing each and every employee who

takes part in strike action. 10 The essence of a right as opposed to a liberty to strike is that those exercising the right are protected against any prejudice or detriment in consequence of having struck, particularly at the hands of their employer. Post- 193 7 Acts are presumed constitutional. A practical effect of this is that if, in respect of any provision or provisions in an Act two or more constructions are reasonably open, one of which is constitutional and the other or others are unconstitutional, 'it must be presumed that the Oireachtas intended only the constitutional construction, and a Court called upon to adjudicate upon the constitutionality of a statutory provision should uphold the constitutional construction'. 11 Adopting the constitutional construction of Section 5(2), as we are bound to do, Section 5(2) could not be interpreted as implying that non-selective dismissals for taking part in strike action lies outside the scope of the Unfair Dismissals Act. Additional arguments in support of this interpretation are found in international law. Ireland, it will be recalled, is a party to the European Social Charter. O'Higgins 12 has described the right to strike in the Charter as meaning that '. . . within the areas of protected conduct strikers are not to be subject to any penalty, disadvantage or detriment at the instance of an employer in virtue merely of having participated in strike action. In the European context this means that after the strike is over the worker returns to work and continues in employment without loss of any advantage (other than loss of pay for the period of the strike)'. O'Higgins refers to s. 26 of the Industrial Relations Act, 1971, which foreshadowed s.62 of the EPCA, 1978. He writes: 'No more astonishing provision could be found in this astonishing piece of legislation than this provision that dismissal for striking, even after due notice has been given, should, save in the most exceptional circumstances, be a fair dismissal A more blatant violation of Article of the European Social Charter would be difficult to envisage'. O'Higgins points out . that it would be in- compatible with the Charter for a striker who resumes work to be penalised as regards pension or other rights. (It may even be unlawful for an employer to offer re- engagement to a striker, as this involves a diminution of the employee's accrued rights. See s.5(2)(b) and s.5(4) of the Act.) It would clearly be incompatible with the Charter to enable an employer to dismiss all of the workforce for having participated in strike action. •Part I of this article appeared in June Gazette, 1980, p. 101.

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