The Gazette 1980

JULY AUGUST 1980

GAZETTE

—Continued from page 121. employment are far from certain. In Becton Dickson Ltd. v. Lee & Co. 29 Walsh J. in the Supreme Court implied that if workers agree to a particular condition — an express no-strike condition — they will not be able subsequently to raise this condition as a trade dispute. 30 From this it is arguable that collective action by workers which is inconsistant with a peace obligation may constitute unlawful means arising out of breach of contract: in Ireland, the courts look upon collective agreements as contracts, it is presumed the parties intended to be bound by their agreement. 31 Where a peace obligation is incorporated into the individual contract of employment, either expressly or by necessary implication, any form of industrial action in opposition thereto will be unlawful. Constitutional law may also be involved in assessing the lawfulness of industrial action. Where workers involved in an industrial dispute employ means which are likely to bring about a violation of the Constitution, their action may be unlawful. In sum, 'unlawful action' in Section 5(2) may encompass an extraordinarily wide field. So interpreted in relation to industrial action, the sub-section is reduced to an absurdity. '[An] intention to produce an unreasonable lor absurd] result is not to be imputed to a statute if there is some other construction available'. 32 The only 'other construction available' in the circumstances would be a severe narrowing of the ambit of unlawfulness. If the EAT were to confine its interpretation of 'unlawfulness' to the principles of the criminal law, an unreasonable or absurd result in relation to Section 5(2) could be avoided. Otherwise, in relation to industrial action, the sub-section will be devoid of content for all practical purposes. We turn finally to examine certain matters which might arise in relation to the practical application of Section 5(2) of the Unfair Dismissals Act. Selectiveness British caselaw deals with a number of issues which could be germane to the operation of Section 5(2) of the Irish Act. 33 Concerning the question of selectiveness, for instance, the House of Lords in Stock v. Frank Jones 34 declared that, in deciding whether employers had picked and chosen, all those who 'had taken part in' the strike or industrail action, not just those still taking part at the date of dismissal, should be considered. It is irrelevant that some strikers may have been taken back before others. 35 If an employer warns strikers that they will be dismissed unless they return by a certain date, and if, say, two return but the rest remain on strike and are dismissed, Section 5(2) could be invoked by the dismissed employees: the workers who were taken back were nevertheless workers who 'took part in' the strike. This may put the employer in a difficult position since, if he issues an ultimatum that the strikers must return or be dismissed, that ultimatum is valueless if even one of the strikers returns. It would then be impossible for him fairly to dismiss the remainder (within Section 5(2)). 36 The problems concerning reasonableness of dismissal which have arisen in Britain should encourage the appropriate parties in Ireland to urge that Section 5(2) be amended so as to embody a conclusive presumption. Such an amendment would sidestep a multitude of problems. In Cruikshank v. Hobbs 37 for example, which arose out of the Newmarket stable lads' strike of 1975,

the overall reasonableness of the dismissal had to be determined in accordance with the then relevant legislative provision, schedule 1 of the Trade Union and Labour Relations Act, 1974. The employer dismissed five of the six strikers for redundancy and the question was whether it was unfair in accordance with the relevant legislation to select those strikers for redundancy. The EAT rejected the submission that striking was irrelevant to the issue of selection for redundancy on the grounds (i) that the strike might have contributed to the need for redundancies; and (ii) that if the strike had been long enough there might be technical or administrative difficulties in taking the men back; and (iii) that to take back strikers and dismiss those who had remained at work would cause friction, impairing the efficiency of the undertaking. Accordingly, by a majority, the tribunal held the dismissals to be fair. 38 A further difficulty is illustrated by Thompson v. Eaton. 39 Some employees objected to the way in which management wished to test new machines and accordingly, when one of the machines was installed, they stopped work and crowded around the machine to prevent proving operations. After being warned, the men were dismissed. The EAT held that the men were either engaged in a strike or at the very least in 'other industrial action' and accordingly dismissed the application for unfair dismissal. The Tribunal pointed out that the employer's approach to the issue had been 'obtuse'; yet the courts would be put in a difficult position if the law required them to inquire into the merits of the initial dispute. The EAT did acknowledge that a danger exists where there is gross provocation and the dispute has been provoked or engineered by the employer. It recognised that para. 8 (the provision excluding jurisdiction in TURLA, 1974, sch. 1) ought not to apply in such a case and suggested that one way of achieving this would be to say that the employer's conduct amounted to a repudiation of the contract of employment by him with the result that the strike occurred after dismissal. This argument would not be ruled out by the House of Lords' decision in Photo Productions Ltd. v. Securicor . 40 In any event, the later British case of Wilkins & Others v. Cantrell & Cochrane (Great Britain) Ltd 41 gave the quietus to Mr. Justice Phillips' suggestion that an engineered strike might not fall within the legislation. The EAT held in Wilkins that the mere act of going on strike did not amount to a sufficient indication by an employee that he was treating the contract as having been terminated by the employer's repudiation. The following extract from Wilkins was cited with approval by Talbot J. in Marsden & Others v. Fairey Stainless Ltd. 42 'Even if the employers had been in fundamental breach of contract by requiring the employees to drive vehicles which were overloaded [which was alleged in the case before him] the act of going out on strike could not be held to be a sufficient indication by an employee that he is treating the contract not only as capable of being repudiated but as one which has been broken and which he, therefore, regards as at the end. The point of a strike is so that the existing contract can be put right, so that grievances can be remedied, so tha5 management will agree to the demands. The law makes it plain that going on strike does not

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