The Gazette 1980

GAZETTE

JULY-AUGUST 1980

terminate the contract. Rather, as was established in Simmons v. Hoover Ltd. 45 it gives the employer a right to regard the conduct of the employee as a breach of contract and to dismiss him.' Although Irish law, strictly speaking, does not follow the approach in Simmons' case, 44 the reasoning in this passage would be no less applicable: the law makes it plain that going on strike does not terminate the contract. The reality of the parties' intentions during a typical strike supports Talbot J.s' view.' Conclusion In most cases where workers are dismissed for participating in strike or other industrial action, statutory protection may be necessary as union bargaining power will ensure that there is no discrimination. But for unorganised or unprotected workers the protection afforded by Section 5(2) of the Unfair Dismissals Act could be of considerable significance. In its present form, Section 5(2) does not effect a conclusive presumption of unfair dismissal. This means an employer may adduce grounds justifying his decision to dismiss. In the writer's view, the law in this respect is undesirable and should be amended. There is arguable no presumption in relation to the contrary implied element in Section 5(2); semble, non- selective dismissals are not excluded from the jurisdiction of the Act but are deemed unfair unless an employer is able to justify his action within Section 6(1). 43 Dismissed employees who 'qualify' within Section 5(2) will find that the application of the sub-section thereafter fairly bristles with problems. The restrictive meanings assigned to 'strike' and 'industrial action' under s. 1 of the Unfair Dismissals Act will remove many workers from the Act's protection. The need to protect strikers against loss of jobs is a very real one. The vagueness and uncertainties in Section 5(2) of the Unfair Dismissals Act hinder rather than promote this protection. Our 'obscure and techincal' sub- section needs to be reviewed, revised, and its intentions formulated more clearly. (Concluded) FOOTNOTES 7. See R. Kidner: 'Dismissing Strikers' (1978) Vol. 128 NLJ 203. 8. 'The maxim ought not to be applied when its application, having regard to the subject matter to which it is to be applied, leads to inconsistency or injustice': Colquhoun v. Brooks (1888) 21 QBD 52, 65. 9. See June Gazette, 1980, page 101. 10. Policy considerations are relevant although they fall outside the present scope. 11. Mac Donald v. Bord na gCon (1965] I.R. 217, 239, per Walsh J. 12. P. O'Higgins: 'The Right to Strike - Some International Reflections' in Studies in Labour Law (ed. J.R. Carty-Hall, MCB Books, 1976) 110, 112. 13. Jenks: The international protection of trade union freedom (1957) 370. 14. See, further, Valticos: Droit international du travail (1970, para. 265). 15. The following examples are cited: Finland, Contracts of Employment Act, s.37; France, Labour Code, section L.521-11 (as interpreted by the courts); Italy, Act. no. 300 of 1970, s. 15; Panama, Labour Code, s.388, para. 1(3). 16. See a similar definition in section 6 of the Redundancy Payments Act, 1967. (Note that a strike is not defined for purposes of s.62 of the EPCA). 17. Winnet v. Seamark Bros. Ltd. (1978) EAT 695/77. 18. See X. Blanc-Jouvan: 'The Effect of Industrial Action on the Status of the Individual Employee' in Industrial Conflict - A

Comparative Legal Survey (eds. B. Aaron and K.W. Wedderburn, 1972); K. Foster: 'Strike Notice: Section 147' (1973) 2 Industrial Law Journal 28; P. O'Higgins: 'Strike Notices: Another Approach' (1973) 2 Industrial Law Lournal 152-'7; Lord Denning: The Discipline of Law (Butterworths 1979) 180-'2. 19. See S. D. Anderman: The Law of Unfair Dismissal (Butterworths 1978) 179. 20. Section 7 cases fall into the category of 'scheduled' offences under the Offences Against the State Act, 1939; if he chose to do so, the DPP could order them to be tried in the Special Criminal Court. 21. But the limitation of the protection of the Act of 1906 introduced by the Trade Union Act, 1941, would not be relevant. Nor would the technical and rigid interpretation of 'trade dispute' for the purposes of the Act of 1906: see, on this, Max W. Abrahamson: 'Trade Disputes Act - Strict Interpretation in Ireland' (1961) 24 MLR 596; V.T.H. Delany: 'The limitations of a trade dispute' (1955), 18 MLR 338. 22. Brendan Dunne Ltd. v. Fitzpatrick [1958] IR 29 wherein Budd J. said in the High Court that '. . . picketing is not lawful if the methods adopted are such as to overawe those who happen to be on the premises being picketed or the members of the public who might be minded to have business dealing with them, to the extent that people of ordinary nerve and courage may be prevented from doing what they have a lawful right to do' (at 44). 23. E.I. Co. Ltd. v. Kennedy «4 Ors. [19681 I.R. 69: 'The use of words such as "scab" or "blackleg" are historically so associated with social ostracism and physical violence as to be far beyond anything which might be described as mere rudeness or impoliteness and so beyond what is permitted by law. In the present context the references made to the race or nationality of the employers could produce the same disorderly response and also go beyond what is permitted by law' per Walsh J. at 91 (Supreme Court). 24. Fitzpatrick's case above, footnote 22. 'The method of picketing must be reasonable having regard to all the circumstances. It would not be justifiable I feel to place a picket consisting of a hundred or so persons on a small suburban business premises with one or two of a staff. On the other hand, it might be quite reasonable to place several 'quite large pickets on a large factory with several entrances. It is a matter of degree according to the circumstances and the number of the picket should bear reasonable relation to the nature of the premises and the number of persons with whom the dispute arises': per Budd J. at 44. 25. This is inevitably regarded as a breach of contract. 26. The courts could regard this as a meticulous observance of the rules, thereby rendering it lawful, or as an unreasonable interpretation of the rules, thereby rendering it a breach of contract. 27. The legal effect of an overtime ban depends on the nature of the employee's overtime obligations. Where overtime is compulsory, a refusal to work more than the basic hours amounts to breach of contract. Where it is optional an employee is free to refuse to work overtime. If there is no express clause governing overtime, and employee's obligations will be determined by what is customary in the employment concerned. 28. This may constitute a breach of the civil law (trespass) or be regarded as a common law conspiracy to trespass, which is both a civil and criminal wrong. The Prohibition of Forcibly Entry and Occupation Act, 1971, may also be relevant. The Act makes it a criminal offence to enter someone else else's premises by force; bar the entrance to such premises; physically resist attempts to be removed by the owner or the Gardai; or encourage or advocate any of the foregoing. 29. 119731 I.R. 1, 38 (In UK, see now s. 18(4) TURLA, 1974). 30. The judge did not reveal the basis upon which a stipulation that refers to a collectivity, a group of workers, could be incorporated into a contract of employment. But he did say that: 'An express no-strike clause in a contract is itself such an unusual feature of a contract of employment and is such an apparent departure from the long established right to strike that a court would be slow to imply it where it is not expressly included in the contract or where it is not a necessary implication; a court would probably only do so in cases where there was some particular provision for machinery to deal with disputes, the provision being so phrased as to give rise to the implication that it had been agreed between the parties that not other course would be adopted during the currency of the dispute'. 31. Most recently, see Gouldings Chemicals Ltd. 119771 I.R. 218. 32. Artemiou v. Procopiou [1966J 1 Q.B. 878, 888, per Danckwerts L.S.

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