Wednesday, 8 December 1976
Dáil Eireann Debate
Mr. G. Fitzgerald: The present situation in relation to all the Bills under the name of the Minister for Labour on the Order Paper over the past five or six weeks is unusual. We have had an hour or two per week on many of those Bills. It is disappointing that they are all measures of importance and in order to derive the greatest benefit for the people for whom these pieces of legislation are introduced it would be better if those Bills were taken in some sort of order and adequate time given to debating them. At present three of these Bills are at Committee Stage and on two successive days new Bills were introduced. Undoubtedly, the allocation of an hour or two per week to these Bills is designed, not for the benefit of the people concerned, but for personal image building and the projection of the Minister for Labour to resurrect him from the depths to which he had dropped six months ago.
Mr. G. Fitzgerald: I appreciate that but I am entitled to protest at the abuse of the process of this House by the shameful way the Minister for Labour is presently travelling—I deliberately use the word “travelling”—these Bills. He is doing so for his own personal advantage. At the same time some people are suffering because of the delay in dealing with these Bills. For example, married women, or girls who are getting married, can be dismissed from their employment. I can give the Minister instances of this. That is happening while these Bills are being delayed and the Minister is aware of that.
Mr. G. Fitzgerald: I will do so but it is only right that the Minister for Labour's bluff should be called. He is deliberately engaged in image projection. It is common knowledge that there is dissention within the Cabinet because of the amount of publicity he is getting by bringing these Bills along little by little with the intention of building his image.
Mr. G. Fitzgerald: It is disgraceful that business has not been so ordered that we could at least complete the Committee Stage today. I would be prepared to co-operate with the Government to that extent but not with the dishonest and blatant exploitation by the Minister of the needs and the demands of the people whom this Bill affects.
We have decided to oppose outright this section because of the anomalies it creates. It adds nothing to the Bill. I do not wish to refer to any legislation passed by any other parliament, but in the measure introduced in Britain there is no section of this nature. When we began to discuss this section three or four weeks ago I understood the Minister to be prepared to consider the deletion of this section. That would be the sensible and appropriate thing. I am prepared to listen to any reasonable explanation the Minister may have of the need for this section, but to my mind the only solution is either to introduce an amending section or to drop it altogether.
Subsection (1) refers to people undergoing training or probation, for example secondary teachers whose probationary period may be two years. We must remember that we are talking here about not simple dismissals but unfair dismissals, and in section 6 we give various reasons why dismissals could be described as being unfair. A person who is doing two years probation can, after 22 months, be dismissed for reasons outside section 6. Therefore, if this section is not deleted there cannot be any consistency because the entire Bill should have a period of one year of continuous service which has been laid down in section 2, and the basis of the Bill should be on that one year. If the Minister refuses to delete this section on Committee Stage, I will claim the right to move a number of amendments on Report Stage.
This Act shall not apply in relation to the dismissal of an employee  during a period starting with the commencement of the employment when he is undergoing training for the purpose of becoming qualified or registered, as the case may be, as a nurse, pharmacist, health inspector, medical laboratory technician, occupational therapist, physiotherapist, speech therapist, radiographer or social worker.
All of these cases are connected with various spheres of health. Take the training period of a nurse. It varies, according to the courses she or he does, from two to four years. After three years and 11 months he or she can be dismissed unfairly without coming within the control or the safeguards of this Bill. I submit that is discriminatory and unfair and if the Minister will not either delete the section completely or give a guarantee to the House today that he will amend the section on Report Stage, we will ourselves put down amendments for that Stage.
Let us again consider the nurse. Her first year of training involves some of the hardest tasks of her entire training period and if we are to be consistent we must provide the safeguard of one year of continuous service, but certainly not three years and 11 months. I appreciate there must be a built-in safeguard at the end of the training period. It is appreciated that if a hospital takes in 60 trainee nurses—physiotherapists or speech therapists would be included—in a year, when their training is finished the average intake in the hospital can not be more than about 20 to 30—a hospital could not be expected to retain the entire 60 or so. At the end of the period, therefore, there must be some provision whereby such a hospital would be excluded.
To show the anomalies and inconsistencies in the Bill, I would point out that in section 4 the Minister is taking into consideration the point I am making with regard to the trained person. I do not agree with the terms set out and I shall be seeking an amendment in that regard. Under section 4 the Minister is taking into consideration the trained apprentice and is giving that person a certain  right during the period of training. I agree entirely with the principle but I do not agree with the period mentioned by the Minister. How can he explain to the House why he has differentiated between those excluded under section 3 from the controls of this Bill and the people covered by section 4? They are all people covered by different periods of training, different training programmes and there are different end results to their training. However, they are our people and are the workforce of the country. While section 3 remains in its present form it is completely discriminatory. I see no need for the section but if it has to stay it must be in a completely amended and modified form. We will oppose it at this stage and we will introduce amendments on Report Stage.
It is evident that continuity in legislation affecting workers' rights is most important. I would ask the Minister to devote today to dealing with the Committee Stage of this Bill —we should complete it today—and then we will have achieved something worthwhile. As it is at the moment, we will not achieve anything worth-while. While this Bill and others are being delayed, girls who are getting married are being dismissed from employment and I can give many instances to the Minister. Some of these Bills have been before the House for 15 months or more. We had one this morning and probably we shall have another tomorrow morning. They sound nice and they look well but we should not be publicity-seeking in our approach on matters that affect the lives of workers. Let us be more sincere and honest in our approach.
I would appeal to the Minister either to withdraw section 3 or else to guarantee that he will substantially amend it to make it consistent with other sections and to ensure that the treatment that will be meted out to people covered by the section will be the same as that meted out to others under this legislation.
Mr. M. O'Leary: I wish to make a brief rebuttal of what Deputy Fitzgerald has said. The Deputy took  certain liberties on Committee Stage in his initial remarks by indulging in what he thought to be alarming imagebuilding on my part. He appeared to see this trend in the volume of labour legislation coming before the House. In fact, he repeated charges made by his Leader yesterday that the volume of labour legislation going through the House at present was purely for optical purposes.
I would explain to the House that the legislation before us is the result of planning in my Department many months or even many years ago. Legislation in my Department is subject to consultation with employers and unions and only then can it come before the House. I am in no way concerned with imagebuilding in this legislation. I am anxious to see that the legislation will get through all Stages as rapidly as possible. If the Deputy affects to see in the reports of commentators some of the tendencies that have worried him, that is not my concern. I do my work and I let commentators make up their own minds and issue their own judgments as they like. I proceed on my way doing my work as well as I can.
With regard to this legislation going through the House, I would point out that on the Order Paper yesterday the Worker Participation Bill was listed third. It could have been proceeded with yesterday had the Opposition not indulged in what I would refer to as filibustering on the Wildlife Bill, repeating on Report Stage amendments they had tried and had failed to get accepted on Committee Stage.
Mr. G. Fitzgerald: On a point of order, may I draw attention to the fact that the Minister has accused my colleagues of filibustering on a piece of important legislation? I would ask the Chair to ask the Minister either to withdraw that charge or to substantiate it.
Mr. M. O'Leary: On the previous occasion we discussed section 3. As I have explained already, representations were made to me that, in practice, were contradictory. One side seek to have no probationary period but the management seek to have such a period. The compromise I have suggested is two years. I continue to receive strong representations from two conflicting viewpoints on this section. In the main these comments have been related to employment in secondary schools and have been of a contradictory nature. There have been representations from the teachers and their association and from the management. There is a good deal of justice in the counterclaims of one side as against the other. I have sought to have a common-sense compromise between the two viewpoints, accepting that there must and should be a period of probation built into a measure of this kind. I am sure that the Opposition on reflection will agree with this.
The opposing viewpoints suggest that  there are very substantial issues involved and I would tell Deputy Fitzgerald that he should reflect on these substantial issues. I am not willing to make any hasty commitments in relation to subsection (1). Subsection (2) which deals with the training and examination leading to qualification in nursing and para-medical employments raises issues of a similar nature and I could not agree to any changes in that subsection.
I undertake to examine in a fundamental way the issues involved in this section. I accept that there must be a period of probation and I accept that we can be for and against a period of probation. I have received conflicting representations from two sides, both equally serious about their particular service and occupation, both saying things in conflict with each other. I have attempted to arrive at a reasonable compromise. Of course the essence of legislation of this character in this area between employers and management and employees is to arrive at a reasonable compromise. I have sought to do that and I ask members of the Opposition, in return for my undertaking to examine this matter very seriously between now and Report Stage, to withdraw their opposition.
Mr. Wilson: I would like to make a few brief comments on section 3 (1) (a), the question of a two-year probationary period, with particular reference to secondary teachers. I submit that a full academic year is a sufficient period for an employer to make up his mind about the suitability of someone whom he or she has employed. If this way out is given two years will then be built into private contracts. The dangers are that the period will be used for something other than probation, because probation, by definition, simply means that the employer is assessing the suitability of the person for the position to which he or she was originally appointed.
This period can be used as a waiting period and the person's suitability as a teacher may not necessarily be the reason for failure to give a permanent  contract at the end of two years. For example, the suitability of the subject the teacher is engaged in teaching may enter into it at the end of two years. The employer technically is entitled to terminate the employment under this Bill at the end of the two years, saying: “We have had you two years on probation. We do not find you suitable.” It does not specifically have to be because of inability to teach but inability to control. It may be because the particular employee has not got the subjects that fit in with the reorganisation of the school. I appeal to the Minister to look at this. He has said he will give the matter consideration between now and Report Stage. I appeal to him to cut down the probationary period. I suggest that one year is sufficient.
Mr. Moore: I support Deputy Wilson's plea that the Minister might well consider the academic year as the probationary period because, as he has pointed out, longer periods in this case may possibly be used against the interests of the teacher or of the institution. I believe the teachers would regard the academic year as being the appropriate period for the assessment of their character, their ability and the well-being of the institution in which they are employed. One can well see how this could be abused if a longer period is taken. During the academic year, when the teacher or monitor is actually teaching, the school authorities would have the only real opportunity of assessing the character and ability of the person concerned.
People outside schools may regard a calendar year as being normal for most things. I believe in this case that Deputy Wilson is quite right in suggesting that we have the academic year brought in instead of the calendar year. I am not terribly happy with the full range of people in section 3 (2) who would be affected by this. In the city at the moment we have a number of problems with boiler technicians. I know we can raise their problems at a different level but the Minister might listen to the plea of Deputy Fitzgerald and Deputy Wilson. If they are listened to this section will be much more  effective than it is at present. They have offered this in the spirit of goodwill and from their experience. The Minister might acknowledge their interest in the matter and accede to their request.
Mr. M. O'Leary: May I point out to Deputy Wilson that the secondary school year is effectively 32 weeks and the managers feel that this is not sufficient time in which to assess a new secondary teacher.
Mr. M. O'Leary: It may be so, but I am telling the Deputy that this is a matter on which I received those conflicting viewpoints between the organisation and management. There are points of justice on both sides. I give the undertaking that I will reexamine this in a fundamental way. If on Report Stage we have to differ, it will be clarified at that point. I certainly will look at the matter very seriously. In the meantime I ask the Deputies to withdraw their opposition.
Mr. G. Fitzgerald: I appreciate that. But I also draw the Minister's attention to the fact that he is possibly talking about over 200 weeks in the case of some people mentioned in subsection (2). Our reason for opposing the section is that we regard it as being too unwieldy to amend. I also accept that it would probably need amending at the end of the training period, possibly on the lines of the principle contained in section 4.
I am prepared to help the Minister. I also want to see progress made on this Bill. He has given an undertaking to look at it. Would he assure the House that this will be based on looking at the Bill on a 12-months basis? Despite the problems for managers in the 32 weeks teaching situation,  it must be possible to assess a teacher in that period. We are talking about the unfair dismissal, not the fair dismissal. It should be possible for management at any level to establish in 32 weeks the suitability of a person in relation to capability, competence, qualifications and conduct. I accept that this is not a full year.
We will accept a year as laid down in section 2. It is most unfair, leaving aside the Minister's argument in relation to teachers, in the case of a nurse to say that she can be dismissed 200 weeks after she has commenced her training. If the Minister will seriously consider establishing the 12 months as the criterion I would be prepared to say that we can move from here reserving the right to put down amendments on Report Stage if the need arises on the Minister giving that undertaking, that he will carefully consider establishing 12 months as being the specific period of exclusion.
Mr. M. O'Leary: I cannot give an undertaking that it will be 12 months, I can only say that I will review the matter. After such a review agreement could be for a shorter period but I cannot give that undertaking at this point.
Mr. Wilson: There is a bit of a fiddle in that 32 weeks; 35 weeks would be nearer to the proper calculation. I suggest that the academic year should be sufficient because there will be certain problems. If a dismissal takes place in September, which is the beginning of the academic year, the teacher involved is in queer street looking for a position at that time.
Mr. M. O'Leary: Immediately we drop the probationary section we have the other criteria in the Bill which introduce the presumption that dismissals are unfair until the employer proves otherwise. However, I will continue meeting the representatives on both sides and, perhaps, we may reach agreement. If we do not, I will have to come back on Report Stage.
Mr. G. Fitzgerald: The final decision in legislation is not a question of reaching agreement. The final decision  on legislation rests with the Minister. I am not asking for an undertaking as to what he will finally bring back to the House. I want a reasonable undertaking that the Minister will review it on the basis of the 12 months being the guideline and the maximum period under which people can be excluded. The Minister is talking about teachers at the moment but surely he will agree that it is most unfair and unjust to possibly keep those in subsection (2) from under the cover of this Bill for a couple of hundred weeks.
Mr. G. Fitzgerald: I have no great objection to that but there is a slight difference between them although they cover the same section. Assuming that we want to vote or oppose one or other amendment, can we do that?
This Act shall not apply in relation to the dismissal of a person who is or was employed under a statutory apprenticeship if the dismissal takes place within 6 months after the commencement of the apprenticeship or within 1 month after the completion of the apprenticeship.
 This is strangely contradictory to the previous section where we are asking the nurse, for example, to work almost for four years before she comes under the umbrella of this Bill. Here we are asking the apprentice to work only for six months. The employer must be taken into consideration because with the block release courses to AnCO, I see a situation arising where the young apprentice could be on a block release course and only be in the job for a very short time to be assessed by his immediate superiors, his employer or supervisor. As well as that, this Bill should be consistent along the line. We should have, as we have in section 2, 12 months' continuous service operating, as I said in section 3 and in section 4, for the apprentice. There is no justifiable reason why there should be a six months' exclusion for the apprentice particularly in view of section 3 at the moment. There is the vast difference between the apprentice and the probationary teacher that we were talking about in section 3. The probationary teacher will normally be at a more advanced age than the young apprentice who is starting his first year's employment. It seems completely anomalous to have a six months' exclusion here and almost unlimited exclusion under section 3 in some specific cases. To set 12 months as a basis for the entire Bill would make it simpler to follow the operation. It would mean that the person whether on probation, qualified or in apprenticeship training will be excluded for the 12 months. I feel strongly about this.
The Unfair Dismissals Bill is a very necessary piece of legislation. However, it cannot and must not be seen to be leaning on the side of any particular group. For example, in my own city at the moment we have a very serious situation in apprenticeship. We have apprentices, qualified, accepted and regarded as being suitable for some of our State bodies, including the ESB and CIE for over a year now, but because of the union they have not been employed. I tried to ask the Minister what can be done about this or what the delay was, and I was informed that it was a function that did not come under his control because a State body was involved. The establishing of 12  months as being the basis for that Bill whether in apprenticeship, on probation or in training or whether for 12 months' continuous service would make the Bill a finer piece of legislation and would make its sections more consistent with each other and would eliminate anomalies that would otherwise be created.
Amendment No. 10 relates to the situation of the apprentice having completed training. I referred to the necessity for lengthening the period of the exclusion in line with the other sections of the Bill. The Minister has done something that I find difficult to understand under the Unfair Dismissals Bill. The Minister said “or within one month after the completion of the apprenticeship”. Unemployment being what it is at present, I seriously question this period. Earlier I suggested we were possibly being unfair to the employer. Here I submit we are being most unfair to the employee or the qualified apprentice. At times people are inclined to regard employers as bad people. I do not subscribe to this view. I believe the vast majority are people with very good social consciences. I have come across very many cases where young people, having completed their apprenticeship, were approached by their foreman, manager, supervisor or employer and told why there were no jobs for them in that particular firm but the firm was prepared to carry them for three or six months to give them an opportunity of looking for a job elsewhere.
Under this Bill the employer must fire these people, to put it crudely, within one month. The Minister may argue that these people could be excluded under the redundancy clause but I do not think that is enough in the case of young people who have just completed their apprenticeships. I would ask the Minister to substitute six months for one month. That will not materially affect the Bill and it will give an opportunity to young people in a time of high unemployment to hold their jobs for four or five months while they are seeking alternative employment.
I have had personal experience in  the days when I was seeking employment of the fact that it is much easier to get a job from a job, particularly in trades, and so I would appeal to the Minister to accept these amendments which are designed to improve the Bill. What I suggest would benefit both the employer and the qualified apprentices.
Mr. Moore: The common sense in these amendments is obvious. We must renew our plea to the Minister to examine this section again. Youth unemployment is very high and youth is questioning many of our values. I believe this section in its present form would be rejected by many young people.
Mr. Moore: I believe the longer period suggested by Deputy Fitzgerald is necessary if the apprentice is to be given a fair chance. On completion of his apprenticeship he needs a period in which to look around for other employment. As Deputy Fitzgerald said, it is much easier to get a job from a job than it is when one is registered in the employment exchange. If we make regulations which debar people from being kept on in employment, then we are not helping anybody. I believe the time has come when employers and trade unions should discuss apprenticeship and I believe the views expressed here by Deputy Fitzgerald this morning would be very much in the forefront of such discussions. I would ask the Minister to look at the section again. Day release is a good scheme and so are the AnCO training schemes but I do not believe there can be an adequate survey of the potentiality, or otherwise of apprentices in a short period. The longer period suggested by Deputy Fitzgerald is commendable.
Mr. M. O'Leary: The main problem is that Deputy Fitzgerald's amendment would lead to a worsening of the position of apprentices. Under the AnCO training arrangements apprentices are protected after  the first six months if they pass their probation and the onus of proof is on the employer if there is any disruption in training. I am extending that principle to this legislation. It already exists in practice. Changing from six months to one year would seriously worsen the position of apprentices. I cannot accept this amendment. Deputy Fitzgerald also suggested one year instead of two. Again that would  lead to a worsening of the position of apprentices. I would ask the Deputy to withdraw the amendment.
Burke, Joan T.
Clinton, Mark A.
Conlan, John F.
Cooney, Patrick M.
Dockrell, Henry P.
Donegan, Patrick S.
Esmonde, John G.
Fitzpatrick, Tom (Cavan).
Flanagan, Oliver J.
Hogan O'Higgins, Brigid.
Jones, Denis F.
Kyne, Thomas A.
Murphy Michael P.
O'Sullivan, John L.
Ryan, John J.
Brady, Philip A.
de Valera Vivion.
Dowling, Joe. Murphy, Ciarán.
Fitzpatrick, Tom (Dublin Central).
Healy, Augustine A.
Lalor, Patrick J.
Moore, Seán. Smith, Patrick.
Wilson, John P.
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