Unfair Dismissals (Amendment) Bill, 1993: Committee Stage (Resumed).

Wednesday, 19 May 1993

Seanad Éireann Debate
Vol. 136 No. 5

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Debate resumed on amendment No. 7:

In page 6, between lines 29 and 30, to insert the following:

“(b) the insertion of the following paragraph in subsection (2):

‘(g) the conduct of the employee's private life in matters which do not impinge on the employee's capacity to discharge all duties required in the employment.’.”.

An Cathaoirleach: Information on Sean Fallon  Zoom on Sean Fallon  Amendments Nos. 7 and 10 are related and may be discussed together.

Mr. O'Toole: Information on Joe John O'Toole  Zoom on Joe John O'Toole  This amendment has already been discussed at some length. The issue here is whether the private lives of employees should impact on the stability and security of their employment. Employees might find themselves in a position which would be in conflict with their jobs and I was attempting to clarify this in the amendment. When I proposed the motion, I gave the example that if someone working in the office of the headquarters of a political party was found to be an activist in a different party, then there would be a conflict of interests. Similarly, if an employee in a certain business opened a similar business close by that would also be a direct conflict of interest. Obviously, those are clear [435] examples, but what I am trying to address here is a situation where something in a person's private life, which has no impact on their competency or ability to discharge their work function, could lead to their dismissal and the Minister of State last week referred to a teaching case that occurred some years ago. I do not want to labour the point any further. The Minister of State indicated that she had some sympathy with the point and perhaps she could indicate whether she will deal with it on Report Stage.

Minister of State at the Department of Enterprise and Employment (Mrs. O'Rourke): Information on Mary O'Rourke  Zoom on Mary O'Rourke  We are resuming on the amendment proposed by Senator O'Toole and I recollect the background to the case. These amendments to the Unfair Dismissals Bill have come about, as Senator O'Toole and other Senators realise, through much consultation with interested parties. The Legislature provides for views to be put forward and listened to and commented on.

When Senator O'Toole spoke last week and again, today, he clearly recognised that there were cases where an employee's private life could impinge on job performance and in that case the Senator said that he would not wish to condone that. However he also said that there appears to be cases where one's private life should not be construed as infringing on work performance. The complex background to this amendment shows that the Senator recognises this issue requires a case by case examination. I know the House will be aware that the case I referred to earlier went through — I do not know about the rights commissioner — the tribunal, the Circuit Court and the High Court and on each occasion, it was reflected on professionally and a decision made. While we would all agree that one's private life should not be taken into account by an employer, we recognise that there are certain cases where job performance would be affected. I suggest to the Senator and the House that this issue requires a case by case analysis by the [436] tribunal or the rights commissioner or other adjudicator.

The tribunal was set up to deal with cases of alleged unfair dismissal in an impartial manner. Our amendments seek to clear up many issues which have arisen since 1977. I gave much thought to the case which has given rise to the amendment as did the Department officials. I am convinced that an employee's best interests will be served by the amendments we have put forward and by the various conduits of redress available in rights commissioners, the Employment Appeals Tribunal and if necessary, the Circuit and higher courts. This is the best way to proceed. The complexity of the issue has been recognised by Senator O'Toole but a blanket amendment such as this is not the best way to deal with complex issues that require individual scrutiny.

Mr. O'Toole: Information on Joe John O'Toole  Zoom on Joe John O'Toole  What the Minister said is not in conflict with my proposal and I will try to balance both points of view. I agree with the Minister about case by case assessments. For example a person in a small town may be involved in a relationship which is unacceptable to the people of the town. The person may have a job where the employer does not approve of the relationship and dismisses the person for that reason. The case goes to the Employment Appeals Tribunal and, as the Minister said, at every stage of the appeal the people on the tribunal or in the court have to assess and judge whether the person's private life arrangement impacts on the employee's competency to do the job or whether it affected the reputation of the employer's firm. I do not disagree with any of the points the Minister made as that decision has to be made every time.

In this amendment I am trying to redress the present legislation under which a member of the tribunal could decide that an arrangement or relationship was not good for the community and for that reason decide that the employer was correct to dismiss the person. That approach could be taken at the moment. [437] That is what happened in the case which occurred in New Ross.

What I am trying to achieve in legislation is provision for a person on a tribunal while not approving of an arrangement to take into account that under the Act it would be wrong to have a person dismissed for that reason alone. That is the difference between the two points. A member of the tribunal acting as a jurist in determining a case must decide what is at issue. Is the person doing the job adequately or is it a question of accepting the person's right to a private life? Is the person's private life arrangements impacting on job performance or is it the tribunal member who does not approve? The amendment makes that distinction. I acknowledge the Minister has given it much thought and I recognise the comprehensive nature of her response. There is not much between us and there will be another opportunity to discuss it before a final decision is reached.

The point I am making is that there is a difference between the current situation and what I am trying to achieve in my amendment which is an indication to people on the tribunal that disapproval of a person's private life arrangements is not a sufficient reason for dismissal even if that person's private arrangement is totally at variance with the ethos of the firm or whatever.

Mr. Doyle: Information on Joseph Doyle  Zoom on Joseph Doyle  This matter was considered when the legislation was being prepared according to the White Paper. An amendment was sought which would provide that a person's behaviour in private life may not be used as grounds for dismissal. The White Paper stated that such an amendment was fraught with difficulties and this is the situation we are in now. It also mentions certain charges that might be brought against a person outside work and a situation where a person might be found not guilty on a technicality. These difficulties arise; the Minister is correct. We have to take each case on its merit and let the tribunal judge it on that basis.

[438]Mrs. O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  I understand the points made by Senator O'Toole and Senator Doyle. It is a complex matter and we want to be fair. The best way to be impartial is to allow rights commissioners or the tribunal to deal with cases individually as they were set up to do. The Government's amendment is the best way to deal with this issue. The tribunal reads the Oireachtas reports and takes note of them.

Amendment, by leave, withdrawn.

An Cathaoirleach: Information on Sean Fallon  Zoom on Sean Fallon  Amendments Nos. 8 and 9 are related and may be discussed together.

Mr. O'Toole: Information on Joe John O'Toole  Zoom on Joe John O'Toole  I move amendment No. 8:

In page 6, between lines 29 and 30, to insert the following:

(b) in subsection (3)—

(i) by the deletion of ‘either’,

(ii) by the deletion in paragraph (a) of ‘or’ where it lastly occurs,

(iii) by the insertion in paragraph (b) of ‘or’ after ‘procedure,’

(iv) by the insertion of the following paragraph after paragraph (b):

(c) having regard to all the circumstances the procedure adopted by the employer in the selection of workers for dismissal was unfair.

The arguments used by the Minister and the Members of the House regarding dismissal should also be used when a person is being selected for redundancy. As in unfair dismissals a person should not be discriminated against on the grounds of race, colour, creed or sexual orientation if they are to be made redundant. This amendment brings redundancy arrangements into line with the other protections in this Bill for unfair dismissal.

Mrs. O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  Senator O'Toole is [439] aware of the Protection of Employment Act and there is no need for me to go into detail on it. In the Programme for a Partnership Government a review of that Act is promised and I suggest that Senator O'Toole's two amendments would be appropriate to that review. I will be bringing that review to this House and to the Dáil and we will be prepared to examine those points then.

Mr. O'Toole: Information on Joe John O'Toole  Zoom on Joe John O'Toole  I accept the Minister's good faith. It seems to me that the Programme for a Partnership Government is slowing down legislation. Last week we had two or three clear clashes on issues which were apparently being dealt with by the Department of Equality and Law Reform which is more pertinent in my view to this legislation. Legislation is being slowed down because of decisions of Government which should be dealt with elsewhere. Cabinet needs to be told that this practice is ludicrous. I would be happy if the Minister is indicating that it will be covered——

Mrs. O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  The next legislation I am bringing to this House will provide protection.

Mr. O'Toole: Information on Joe John O'Toole  Zoom on Joe John O'Toole  That is fair. I am happy for it to be dealt with in the next piece of legislation.

Amendment, by leave, withdrawn.

Amendments Nos. 9 and 10 not moved.

Mr. Neville: Information on Dan Neville  Zoom on Dan Neville  I move amendment No. 11:

In page 6, paragraph (b) to delete lines 41 to 47.

My understanding is this section seeks to increase the role of the tribunal in looking at the procedures involved in the dismissal of a person. At present the tribunal looks at procedures but does not necessarily always decide a dismissal is unfair if an employer does not fully comply with normal procedures. There [440] may be cases where, although the proper procedures are not followed, a dismissal can be found to be fair because of the gravity of the action taken by the employee. Natural justice would suggest the tribunal should take into account proper procedures.

Mrs. O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  Senator Neville seeks to delete lines 41 to 47 which are part of the changes to the existing legislation. This provision of the Bill gives support to the general practice of the tribunal in relation to failure by an employer to comply with the terms of the agreed dismissal procedures. In other words, the Department believes this provision will strengthen agreed fair procedures. I am sure Senator Neville does not intend this, but the removal of lines 41 to 47 would lead to a dilution of the agreed fair procedures. It is a worthwhile addition to the 1977 Act and the House will agree that removing it would affect an employee's right or ability to receive fair procedures.

Mr. Neville: Information on Dan Neville  Zoom on Dan Neville  The Minister referred to agreed fair procedures but as she is probably aware, in at least 70 per cent of dismissals there are no agreed procedures outside employer/employee union agreements. Where there are union agreements employers are always conscious of the agreement on procedures. My worry is that where there are no agreed procedures and an employer does not comply with an acceptable procedure or custom and practice in industry or commerce in general, the tribunal would now decide that the dismissal would always be found unfair, despite the action of the employee. For example, if there is a case of extreme violence in the workplace, the tribunal might find that a summary dismissal without going through procedures was fair because of the nature of the employee's action.

I fear the tribunal now would become more legalistic about procedures. Regardless of the action taken by an employee and the justice of the case for dismissal, the tribunal would say procedures [441] were not carried out, the employee did not receive natural justice and did not have an opportunity to defend himself. If the procedures were not carried out, no matter what the employee did, even if somebody was severely injured, the employer would be found to have unfairly dismissed the employee.

Mrs. O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  The deletion involved in Senator Neville's amendment would not help the employee with his or her case. We mentioned legalism last week in this House and I said I was prepared to take steps to deal with the perceived creeping legalism of the Employment Appeals Tribunal.

I think the provision the Senator seeks to delete gives support to the general practice of the tribunal in relation to failure by an employer to comply with the terms of agreed dismissal procedures. I think it is a worthwhile addition to the legislation. This matter was discussed at length and it seemed necessary to insert this provision into the legislation.

Mr. Neville: Information on Dan Neville  Zoom on Dan Neville  I accept it is the practice of the tribunal in 90 per cent of the cases to consider the procedures. However, in some cases the tribunal has found, despite a total absence of procedures, that the incident that activated the dismissal made the dismissal fair. No matter what procedures were complied with the dismissal would still take place.

Many small employers, such as sole traders, farmers or shopkeepers are not aware of these procedures. They should be but they are not. If there was an act of violence or serious theft from an employer, because procedures are not complied with, under this section the dismissal must be found unfair regardless of the justice of the case.

Mr. O'Toole: Information on Joe John O'Toole  Zoom on Joe John O'Toole  I see the validity of both sides of this argument. If somebody is in employment there is a due process or a domestic process, as it is called, to be followed for dismissal. Senator Neville made the point that in cases of violence, sexual abuse or a threat, an employer [442] may decide he did not want the relevant employee on his premises any longer. The Senator says the provision in the Bill would require the tribunal to say due process was not being followed. Senator Neville has more experience in this area than any of us in this House.

My reading is that the tribunal would not be obliged to follow that line. The Bill says: “the Tribunal or the Circuit Court, as the case may be, considers it appropriate to do so”. I am not certain of what that means. It appears the tribunal could say that although an employer did not include in the procedure for dismissal the fact that one single incident of theft or serious violence would lead to a dismissal, nevertheless it could see the employer acted reasonably and the tribunal would not be prepared to say the dismissal was unfair. Under section 5 (b), lines 35 to 37 the tribunal has discretion——

Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers it appropriate to do so... to the extent (if any) of the compliance or failure to comply by the employer...

rather than the fact that procedures were not followed.

I asked the question of Senator Neville because he is an expert on the tribunal. He made a valid point. I represent workers and I would not favour a system where an employer would be required to hold in employment somebody who is patently a danger to others and not just whose working in the business. Senator Neville's case is unanswerable. Can his point be met within the existing words of the Bill?

Mr. Sherlock: Information on Joe Sherlock  Zoom on Joe Sherlock  I was not going to comment until the argument had been developed further. However, it is now [443] my clear view that the protection in the new section 6 (7) of the Principal Act provided for in section 5 of this Bill should be made available. The necessity for an employer to take action against an employee need not result in dismissal as the employee can be suspended until an investigation into the matter has been concluded. That would be a solution to the problem.

Mr. Neville: Information on Dan Neville  Zoom on Dan Neville  Senator Sherlock is right. One would expect that fair procedures are applied in all circumstances. This is true of companies in which unions are organised and have agreement with the employers. However, this does not always happen in the case of sole traders who are not fully informed about good employment practices and do not have personnel expertise available to them. For example, a dismissal by a farmer, without following fair procedures, of an employee for sexually assaulting a member of his family may, under section 5 of the Bill, be found to be unfair. First, the tribunal would find either that the employee's conduct merited dismissal or that the dismissal was unfair but was contributed to by the employee. Second if the tribunal found that fair procedures were not followed, this would result in the dismissal being declared unfair because the employer who lacked knowledge of good industrial relations and practices, did not adopt the proper dismissal procedures.

Mrs. O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  Section 5 of the Bill provides for a new section 6 (7) of the Principal Act the purpose of which is to strengthen the original Act. I suggest that the points put forward by Senator Neville deal with paragraph 7 (6) of the new section whereas paragraph 7 (a) is the pertinent one. This states that:

Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the [444] rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers it appropriate to do so—

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal.

The Senator is concentrating on paragraph (b) to the effect that paragraph (a) is not being considered and I believe the deletion proposed by him in amendment No. 11 would work to the detriment of the employee.

Mr. Neville: Information on Dan Neville  Zoom on Dan Neville  I do not accept that. At present both the reasonableness and conduct of the employer and the procedures which were followed are examined by the tribunal. The relative importance of procedures is now being strengthened. Dismissals which are not in accordance with fair procedures are at present only deemed to be fair if the employee's conduct is extreme and the tribunal is satisfied that had the correct procedures been applied the employer would still have dismissed the employee and this dismissal would have been fair. I do not want a situation to develop where the tribunal will now look at procedures in isolation from an employee's action.

An employee may be dismissed rather than suspended while he is being investigated without being given the opportunity to give his side of the case. Such summary action may be taken without any consultation with the employee because of the seriousness of the employee's action. This section will restrict the tribunal in such cases as it will have to consider in isolation the procedures adopted and find such dismissals unfair because proper dismissal procedures, as distinct from disciplinary procedures, were not adopted.

Mrs. O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  This was inserted to strengthen the rights of employees.

Question put: “That the words proposed to be deleted stand.”

Bohan, Eddie.
Byrne, Seán.
Calnan, Michael.
Cashin, Bill.
Cassidy, Donie.
Daly, Brendan.
Farrell, Willie.
Finneran, Michael.
Fitzgerald, Tom.
Hillery, Brian.
Kelleher, Billy.
Kiely, Dan.
Lanigan, Mick.
McGennis, Marian.
McGowan, Paddy.
Mooney, Paschal.
Mullooly, Brian.
O'Brien, Francis.
O'Sullivan, Jan.
Ormonde, Ann.
Roche, Dick.
Townsend, Jim.
Wall, Jack.
Wright, G.V.

Burke, Paddy.
Cotter, Bill.
Cregan, Denis (Dino).
D'Arcy, Michael.
Dardis, John.
Doyle, Joe.
Enright, Thomas W.
Farrelly, John V.
Henry, Mary.
Honan, Cathy.
Howard, Michael.
Naughten, Liam.
Neville, Daniel.
O'Toole, Joe.
Quinn, Feargal.
Ross, Shane P.N.

Question declared carried.

Amendment declared lost.

Mr. O'Toole: Information on Joe John O'Toole  Zoom on Joe John O'Toole  I move amendment No. 12:

In page 6, paragraph (b), line 47, after “Act” where it secondly occurs, to insert “or any statutory rules for the time being in force governing the dismissal of persons employed by way of apprenticeship, including dismissal for reasons of redundancy.”

I proposed this amendment after consultation with ICTU who expressed concern that the statutory provisions regarding people in apprenticeship were not covered in this legislation. I am trying to secure adequate protection for apprentices and I will be satisfied if the Minister can indicate that such protection is either implicitly offered in this Bill.

It is an important issue and I cannot see where it is covered in the legislation. Legisation should not be silent on such a fundamental issue. At a time when we are encouraging people into training and apprenticeships we should protect them through legislation.

Mrs. O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  I recognise the intent of this amendment particularly as apprenticeships are being promoted with new schemes. Further designated areas for apprenticeship training will be nominated within the next few months; it is an area in which I have a particular interest.

The Senator has asked if apprenticeship is covered under existing legislation. Under the apprenticeship rules of the Labour Services Act, 1987 — which was the statutory instrument of the training and employment authority — no employer can dismiss an apprentice except in strict accordance with the provisions of the Unfair Dismissals Act, 1977, the Protection of Employment Act, 1977, the Minimum Notice and Terms of Employment Act, 1973, and the Redundancy Payments Acts, 1967 to 1990. There are statutory rules and related penalties for failure to observe them.

In their consideration of the fairness of the dismissal of an apprentice the rights commissioners or the Employment [447] Appeals Tribunal would consider all the circumstances surrounding the dismissal. It is quite explicit under the various Acts that employers cannot unfairly dismiss an apprentice.

Mr. O'Toole: Information on Joe John O'Toole  Zoom on Joe John O'Toole  It sounds like game, set and match to the Minister. I surrender without condition.

Mrs. O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  I am sure the Senator's hour will come.

Mr. O'Toole: Information on Joe John O'Toole  Zoom on Joe John O'Toole  Will the list of legislation be deemed to include the Unfair Dismissals Bill, 1993?

Mrs. O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  Yes, it will be added.

Amendment, by leave, withdrawn.

Section 5, as amended, agreed to.

Mr. Sherlock: Information on Joe Sherlock  Zoom on Joe Sherlock  I move amendment No. 13:

In page 7, before section 6, to insert the following new section:

“6.—The Principal Act is hereby amended by the insertion after section 6 of the following new section:

‘7.—(a) The dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from the election of the employee to membership of either of the Houses of the Oireachtas.

(b) Where an employee is elected as a member of either of the Houses of the Oireachtas, the employee shall be entitled to unpaid leave of absence for the period of such membership.’.”.

I expect the support of the Minister and the Members for this amendment. First I thank the Minister for the information [448] she gave me regarding the question I raised last week about another section.

In support of this amendment I cite the experience in 1982 of my colleague, Deputy Paddy Gallagher, who was elected to the Dáil. He understood that he had an agreement with his employer to unpaid leave of absence. When he later lost his seat the employer did not honour that agreement and Mr. Gallagher was dismissed from his post. That was a traumatic experience. He had no protection under the 1977 Act and, unfortunately, it took him a long time to secure alternative employment.

Later my colleagues Deputy Rabbitte and Deputy Gilmore, arrived home after their first day in the Dáil to find notice from their employers that their employment was terminated. I thought that was an anti-political action by the employers, especially as those Deputies, in the course of their duties, negotiated leave of absence for people employed in the private sector. I worked in a semi-State body and had no such problem. The semi-State bodies give leave of absence to employees who are elected to either House of the Oireachtas and that is as it should be.

Under the 1977 Act dismissal is unfair where it is as a result of the following: (a) the employee's trade union membership or activities either outside working hours or at those times during working hours when permitted by the employer; (b) religious or political opinions; (c) race or colour; (d) legal proceedings against the employer where the employee is a party or is a witness and (e) unfair selection for redundancy. Employees in such circumstances are well protected. However, it is unreasonable that persons in employment who are elected to either House of the Oireachtas are not entitled to unpaid leave of absence. That is what is being sought in this amendment.

Dr. Henry: Information on Mary E.F. Henry  Zoom on Mary E.F. Henry  As a public sector employee in the Department of Health I support this amendment. I am not the only Member of the Oireachtas employed in that Department who has [449] this serious problem. It is serious because it precludes many people with experience and qualifications from securing a seat in either House. In the medical profession if clinics cannot be arranged to facilitate Oireachtas sittings, commitments cannot be fulfilled. It is almost impossible to facilitate Dáil sittings, but it is possible to do so in the Seanad.

I know this Government will continue in office——

Mrs. O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  Let us hope so.

Dr. Henry: Information on Mary E.F. Henry  Zoom on Mary E.F. Henry  ——and that we will not be looking for our seats at the end of July.

I resent the fact that I had to give up a major public clinic and that my public patients are suffering as a result. However, I have been able to rearrange my private practice. I know another Member of the Oireachtas who has this problem. It is important that consideration is given to our replacement by locums during Oireachtas sittings.

Mr. Neville: Information on Dan Neville  Zoom on Dan Neville  I support this amendment. There is a section of society which is not involved in the political process. There are many people employed in industry and commerce outside the public sector, for example, the ordinary PAYE workers in a factory, who do not have the opportunity to become involved in politics at local level because there is no facility for leave of absence. The ordinary worker is not represented in the Houses of the Oireachtas or on county councils in proportion to their numbers in the community because they cannot obtain leave of absence. If a person is unfairly dismissed because he has taken leave of absence to attend the Houses of the Oireachtas, he may not receive compensation because he has not suffered a loss.

Mr. O'Toole: Information on Joe John O'Toole  Zoom on Joe John O'Toole  On a number of occasions today I spoke about the protection of teachers in employment. Throughout the afternoon, many school tours came into the House. Last year I carried out a survey of 100 post-primary students and asked them how many [450] would like politics as a full-time career. One or two students were interested. There is a fundamental flaw in a democracy which does not see politics as a career to which people would aspire.

Both the Minister of State and I were teachers when we were elected to the Oireachtas. Teaching is well organised because teachers can take leave of absence for a specific period. Senator Sherlock's amendment reiterates the conditions of service by which the Minister of State and I were able to participate in parliamentary democracy.

People have a poor perception of politics. I do not know how many of the young people in the Visitors' Gallery would like to be TDs or Senators when they grow up. Fewer people will become involved in politics if it means losing a job.

The issue raised by Senator Sherlock is important. I recall attending a fund raising function for Senator Sherlock's two colleagues to fight a court case against their dismissal. The emphasis in a democracy should be to encourage people to become involved in the decision-making process of democracy. Senator Sherlock's amendment attempts to establish a principle. A basic democratic point is being made and it should be protected. It is a poor reflection on the operation of parliamentary democracy if a person is sacked because of election to either House of the Oireachtas.

Mr. Dardis: Information on John Dardis  Zoom on John Dardis  There is a fundamental principle involved here. Nothing should impede a citizen from becoming a Member of either House. We take democracy for granted and it is regrettable that people who wish to participate in democracy are excluded by an action of the State.

One is reluctant to quote personal examples, but I agree with Senator Neville. I have personal experience of the penalties imposed on people in private employment who wish to become a Member of either House. As far as I can recall, there is provision in the Principal [451] Act which says that political affiliation is not grounds for dismissal.

Mrs. O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  That is correct.

Mr. Dardis: Information on John Dardis  Zoom on John Dardis  If political affiliation is not grounds for dismissal, then membership of the House should not be grounds for dismissal. The State has facilitated certain sections of the public service in terms of what they can do, and they can return to their jobs. One famous Deputy in County Kildare took leave of absence from his teaching post for his entire career.

Mr. O'Toole: Information on Joe John O'Toole  Zoom on Joe John O'Toole  In fairness to the then Minister for Education, the problem was sorted out by the people discussing it here today.

Mr. Dardis: Information on John Dardis  Zoom on John Dardis  I do not regard that as undesirable. A teacher or anyone else should be able to become a Member of the Oireachtas without fear of penalty. PAYE taxpayers are as vulnerable as people in the public sector and they need to be protected.

One could sue for constructive dismissal if an employer makes it impossible to retain employment or to get leave of absence. I have known of cases where employers wanted to dismiss employees. The people who want to dismiss employees are the same people who pontificate around dinner tables about the need to have people of merit in the Houses of the Oireachtas. I do not accept that there are no people of merit in the Houses of the Oireachtas. However, people will argue about it, but they will not put their money where their mouth is.

We have a profession of which we should be proud. It is important to participate in State institutions and to participate in political events. However, I fear the alternative.

Mrs. O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  Thank you for a fine discussion. When I was teaching, the students and I often spoke about politics in the context of the modern history [452] course, 1850-1970. We would discuss the political systems in different countries. I always urged them to become involved in the political process. It did not matter what political party they represented, as long as they became interested and involved. They could then decide which party to join and how they could contribute to it.

We all know young people who got four As, two Bs and three Cs in the leaving certificate. However, they would not know where the town hall was, the county manager's name, political parties' representation on the local council, the Members of the Dáil in their political area, or the vocational panels in the Seanad. This is information we know but which many young people, and people of all ages, do not know or want to know.

It is demeaning to pontificate about politicians. I often ask people who criticise politicians why they do not stand for election. The usual reply is that they would not knock on people's doors. The essence of democracy is that you present yourself to somebody from whom you are seeking a vote and ask for their support on the basis of what you are willing to say about yourself or your party. What Senator Dardis said struck a chord with me because when you ask people who are criticising us if they would consider joining a party and going forward for election, they reply that they would not dirty their hands by knocking on doors. That would be demeaning for them. Democracy loses a lot of its gloss when you put it like that.

All of us, whether in the Seanad or the Dáil, are here pro bono publico. The more varied the nature of people represented in both Houses, the greater the scrutiny of legislation or the input into debates will be, with a wider variety of views being expressed. In fact, the Seanad was established so that the vocational — in the correct meaning of the word — element could put their view which would be acted upon. I have always found the Seanad remarkable for that as well as being remarkably efficient. We are being avidly listened to by a great [453] number of young people in the Public Gallery.

The main purpose of the Unfair Dismissals Act was, and remains, to provide machinery for the resolution of dismissal disputes between employers and employees. In my view, a matter of this nature should be addressed in the relevant electoral legislation and resolved through discussion. The Electoral Acts which govern elections to the Dáil or Seanad include the Electoral (Amendment) Act, 1990, and the Electoral Act, 1992. For Seanad elections there is the Seanad Electoral (Panel Members) Acts of 1947 and 1954, and as amended in 1972 and 1992.

The thrust of what has been said in this House today is correct in that there is an acceptance that public work should be recognised in the same way as employment. It is not strictly an employer/ employee situation, but relates to the contract entered into when you are elected to either House of the Oireachtas, which is, of course, at the pleasure of the electorate.

Mr. Doyle: Information on Joseph Doyle  Zoom on Joseph Doyle  And well we know it.

Mrs. O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  We will all be subject to the will and pleasure of the electorate from time to time, whether at a by-election or a general election, it amounts to the same thing. I am suggesting that Senators who feel strongly about this matter should, perhaps on cross-party lines, move an amendment to one of the relevant Electoral Acts and present it in this House to the Minister for the Environment.

An Leas-Chathaoirleach:  Is amendment No. 13 being pressed?

Mr. Sherlock: Information on Joe Sherlock  Zoom on Joe Sherlock  Yes. I would like to reply because if ever anyone was pontificating it was the Minister of State, who did not justify her refusal to accept this amendment.

Mrs. O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  I cannot because it is illegal under this legislation but it would be appropriate under the Electoral Acts, [454] and I think this would be an admirable House in which to move such an amendment.

Mr. Sherlock: Information on Joe Sherlock  Zoom on Joe Sherlock  I rather think that it would be leaning to the side of the employers who do not grant leave of absence because my amendment says:

7 (a) The dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from the election of the employee to membership of either of the Houses of the Oireachtas. (b) Where an employee is elected as a Member of either of the Houses of the Oireachtas, the employee shall be entitled to unpaid leave...”

If a person is elected to the Dáil or Seanad for a short period — and in the past there have been short periods of Government — the Minister of State is saying that in such circumstances it is just for an employer to say, a person's employment is terminated.

Mrs. O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  Absolutely not. On a point of order, I did not say it would be fair, I did not say those words. On a point of order, I must make that correction.

An Leas-Chathaoirleach:  I accept that, and will give you an opportunity to do so. Senator Sherlock has the floor.

Mr. Sherlock: Information on Joe Sherlock  Zoom on Joe Sherlock  I must thank those who spoke because every contribution that supported this amendment was reasonable and I thought the Minister would have taken cognisance of that fact and would have been prepared to accept the amendment. It must be deemed unreasonable and unfair under the Unfair Dismissals Act for any employer to dismiss an employee who is elected to either House of the Oireacthas because he may not be re-elected due to, for example, a change of electoral boundaries. There are many instances that could——

[455]Mrs. O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  The electorate fell out with the Senator.

Mr. Sherlock: Information on Joe Sherlock  Zoom on Joe Sherlock  Exactly, I have experienced that on a few occasions. Yet the Minister is saying it is reasonable for an employer in those circumstances to tell a person that they can——

Mrs. O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  Excuse me, a Leas-Chathaoirligh, I must comment on that. I never said “it would be reasonable”.

An Leas-Chathaoirleach:  I will be calling on the Minister of State to reply but now Senator Sherlock has the floor.

Mr. Sherlock: Information on Joe Sherlock  Zoom on Joe Sherlock  Rejecting this amendment is tantamount to the Minister saying she is rejecting this point.

Mrs. O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  What I said was that I agree with the principle. It is not, however, applicable under this legislation and I feel the remedy lies in the Senators' hands. Why not draft an amendment to the last Electoral Act?

Mr. Neville: Information on Dan Neville  Zoom on Dan Neville  On the last point, some of us did try to initiate legislation in this House and we got our answer.

Mrs. O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  From whom?

Mr. Neville: Information on Dan Neville  Zoom on Dan Neville  The Minister for Justice who would not accept the Bill and then withdrew a Bill. We were not encouraged to go down that road. Senator Sherlock's argument must be taken into consideration. In real life, if somebody wants to run for public office they approach their employer and ask for leave of absence. It is at that stage that a decision is taken. An employer should be aware that by not allowing such persons, if elected, leave of absence to carry out their official duties — there would be a case for extending that principal to county councils as well — such employees would be found to have been unfairly dismissed under the unfair dismissals legislation. Since many employers, particularly big employers, and personnel management are more conscious [456] of labour legislation than the Electoral Acts the appropriate area to deal with dismissals is, surely, the Unfair Dismissals Act. Senator Sherlock's amendment stands on its merits and should be included in this Bill.

Mr. Dardis: Information on John Dardis  Zoom on John Dardis  I will make an attempt to advance the debate. If I interpret what the Minister of State said correctly, and I am reluctant to interpret it in view of the dialogue which has taken place between the Minister and Senator Sherlock, there is general agreement that nothing should disqualify a person from becoming a Member of the Oireachtas by reason of their employment. This means we must decide whether the employment protection afforded to a person becoming a Member of the Oireachtas lies more appropriately with the Electoral Act or this legislation.

When we debated the last Electoral Act we discussed in detail how people might or might not be disqualified from being Members of the Oireachtas. One aspect I remember clearly was that if one was convicted of a criminal offence one would be disqualified. There was also, however, an inference that people who protested on the streets about a particular civil matter, and were then jailed, would be disqualified from becoming Members of the Oireachtas. That situation appropriately lies with the Electoral Act, but the matter currently under debate lies with the arrangement between an employer and employee. Where else is it to be dealt with if not in this legislation? To do otherwise is to avoid responsibility. We should deal with it where it properly belongs which is in this legislation.

Mr. O'Toole: Information on Joe John O'Toole  Zoom on Joe John O'Toole  With all due respect this is where the process of enacting legislation runs into a quagmire. There is no difference of opinion on this issue between the Minister and Senators on both sides of the House. There is a consensus on what we are attempting to achieve. The Minister's response is that this is not the appropriate legislation. I [457] disagree. Her statement defies logic and I would like to hear her justify it.

The Bill says that a dismissal is unfair if it arises wholly or mainly as a result of the religious or political affiliation of the employee. The Act states that such affiliations cannot be used as a reason for dismissal. That is the situation at present. Surely it is a small step from there to saying that a person who is elected because of his or her political opinions to a House of the Oireachtas should therefore be protected. We want to encourage people to become involved in politics. The Minister and I would not be in politics were it not for such an arrangement. When the Minister and I were elected we were each replaced by a temporary teacher on an official basis. Many people in the private sector cannot arrange a replacement and that has been outlined clearly here today. It would have been a loss to the country if the Minister and I were not to have made our contributions to national politics.

When the Electoral Bill was debated, Members were told what it was not the appropriate Bill to deal with this issue. This amendment was not introduced then although this issue was discussed. The Minister and I know that her advisers are of the opinion that this amendment should not be accepted for some reason. To say that this is not the appropriate legislation to deal with this issue is incorrect. This is about unfair dismissal. The Bill already deals with political opinions. Surely political affiliation or election on the basis of political commitment is the same thing.

Mrs. O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  I come to debates as well informed as I can. I think Members will accept that. This advice has been given to me. I do not mind Members disagreeing with it if they accept that I took advice. The advice available to me from informed people is that Members should wait for redress of this situation. Let me be quite clear. I am saying that I have been advised that the best means for redressing this is by way of the Electoral Acts. I am dismayed to find that the [458] Senators did not table an amendment to the 1992 Electoral Act.

Mr. Dardis: Information on John Dardis  Zoom on John Dardis  That was not the appropriate place to table it.

Mrs. O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  No. The Senator said he discussed it.

An Leas-Chathaoirleach:  The Minister, without interruption.

Mrs. O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  The Senator has now agreed with me that no amendment was tabled at that time. In case members seek to say that I am obscuring the matter I am stating quite clearly that the advice given to me is that the channel for redress of this issue is an Electoral Act in one form or another. Let the Senators pontificate as long as they like. The remedy lies in their own hands.

Mr. Sherlock: Information on Joe Sherlock  Zoom on Joe Sherlock  I accept that fully. The arguments become more convincing all the time. The Minister is convinced that her argument is right. Unfortunately somebody advised the Minister and she is not prepared to be flexible.

Mrs. O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  I am very flexible.

Mr. Sherlock: Information on Joe Sherlock  Zoom on Joe Sherlock  I am afraid not. I have read most of the Electoral Acts and there is no section suitable for this kind of legislation. If a person is elected to either House of the Oireachtas and discovers that their employment has been terminated as a result does the Minister regard that as being unfair? Is this the most appropriate legislation under which to protect the rights of that person? I appeal to the Minister to accept the amendment.

Mrs. O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  For the reason I stated already I accept the very reasoned way in which Senator Sherlock has put forward his case. I respect the continuous fear as to whether one will regain one's seat and whether one will have employment to return to. People who are elected to public office are in very tenuous employment. One works always to make it more permanent although this is difficult. [459] I hold fast to the advice which I have been given. I look forward to the day when Senators will do something about this matter. Senators speak about wanting to initiate legislation. I have come here with this Bill and I hope to have further legislation ready shortly. Why do Senators from all parties not come together and put down this amendment? Senators obviously feel very strongly about it.

Mr. Sherlock: Information on Joe Sherlock  Zoom on Joe Sherlock  In view of the argument that has been put to the Minister may I ask her if she would now be prepared to reconsider and talk to her advisers again about it?

[460]Mrs. O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  We will proceed with Committee Stage today and tomorrow. My decision on this is not going to change between today and tomorrow. I do not know how far we will get with Report Stage but we will see. This is a matter for consideration under other legislation.

Mr. Neville: Information on Dan Neville  Zoom on Dan Neville  I would be interested to hear Senator Hillery's view on whether an all party approach could be taken by this House to a Private Members' Bill on this issue.

An Leas Chathaoirleach:  Is the amendment being pressed?

Mr. Neville: Information on Dan Neville  Zoom on Dan Neville  Yes.

Amendment put.

Belton, Louis J.
Burke, Paddy.
Cosgrave, Liam.
Cotter, Bill.
Cregan, Denis (Dino).
D'Arcy, Michael.
Dardis, John.
Doyle, Joe.
Enright, Thomas W.
Farrelly, John V.
Henry, Mary.
Honan, Cathy.
Howard, Michael.
Naughten, Liam.
Neville, Daniel.
O'Toole, Joe.
Quinn, Feargal.
Ross, Shane P.N.
Sherlock, Joe.

Bohan, Eddie.
Byrne, Seán.
Calnan, Michael.
Cashin, Bill.
Cassidy, Donie.
Daly, Brendan.
Farrell, Willie.
Finneran, Michael.
Fitzgerald, Tom.
Hillery, Brian.
Kelleher, Billy.
Kiely, Dan.
Lanigan, Mick.
Lydon, Don.
McGennis, Marian.
McGowan, Paddy.
Mullooly, Brian.
O'Brien, Francis.
O'Sullivan, Jan.
Ormonde, Ann.
Roche, Dick.
Townsend, Jim.
Wall, Jack.
Wright, G.V.

Amendment declared lost.

An Cathaoirleach: Information on Sean Fallon  Zoom on Sean Fallon  Amendments Nos. 14 to 16, inclusive, are out of order as they involve a potential charge on the revenue.

Amendments Nos. 14 to 16, inclusive, not moved.

[461]Mr. O'Toole: Information on Joe John O'Toole  Zoom on Joe John O'Toole  I move amendment No. 17:

In page 7, paragraph (a), line 14, to delete “him” and substitute “the employee”.

On Second Stage, I referred to the language of legislation. As stated in the Programme for a Partnership Government, the Government's position on this matter is clear. It is accepted that language influences attitudes. The use of the words “him” and “he” in legislation reflects the attitude of society, the Government, and, dare I say, the Minister who introduces legislation containing sexist language.

I am replacing the word “him” with the word the “employee”. So it will read “if the employee incurred no such financial loss, payment to the employee by the employer...” I am replacing a pronoun with a noun. It does not change the meaning of section 6. I am moving this amendment on a point of principle. There are other areas in this legislation where similar measures need to be taken.

This amendment is a test for a Government who established a Department of Equality and held a reception in Dublin Castle for the launch of the report of the Second Commission on the Status of Women. It is a test for a Government who indicated the need for equality and has shown a commitment to gender proofing and the elimination of sexist language.

This legislation contains old-fashioned sexist language reflecting a time when men worked and women remained in the home. It is contrary to what the Minister of State believes and to the kind of society we are trying to portray. It is contrary to the need for women's participation in the work force and the demands of the Culliton report that women should have the opportunity to return to the work force. It re-establishes the role model of the old-fashioned male provider, it takes us back to the last century.

We have dealt with this matter on previous occasions and other Ministers have accepted similar changes to legislation. On one occasion the word “chairman”[462] was changed to “Cathaoirleach” and on another occasion it was changed to “chairperson”. I moved a similar amendment to the Environmental Protection Agency Bill and it was accepted.

This issue extends beyond words. Recently I represented a group of women at the Labour Court. I referred to the Chair of the proceedings as either Chairperson or Cathaoirleach. I was reprimanded and told that legislation stated that this person was the Chairman of the Labour Court, not Chairperson, Cathaoirleach or Chair. We have had enough macho legislation.

This amendment will not involve a charge on the revenue. It is in the context for the Programme for a Partnership Government and the progressive nature of the Minister of State's attitude towards such matters. Let us dispose of this matter quickly.

For a full year between 1991-92 on the Independent benches week after week Senator Norris, in the names of the Independent Senators, raised the question of altering the current practice of using “he” exclusively in legislation. We could have a discussion about semantics, what does “he” or “she” mean or should we say “Chairman” or “Chairwoman”, but that is not the issue. The use of these words reflects an attitude. The person who introduces such legislation, must expect to be, and will be, challenged.

Mrs. O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  Everything the Senator said with such force is accurate. May I read from the Interpretation Act, 1937, which would make the hair stand on your head? Part III, section 11 (b) of the Interpretation Act, 1937 reads: “Masculine and feminine. Every word importing the masculine gender shall, unless the contrary intention appears, be construed as if also imported the feminine gender.” This was written in 1937, the year of de Valera's Constitution.

The Second Commission on the Status of Women recommends the elimination of sexism from Acts of the Oireachtas and official forms. Paragraph 1.10.1 reads:

“Amendment of Interpretation Act.

[463] The Interpretation Act, passed in 1937, defines the meaning and construction of words and expressions used in Bills and Acts of the Oireachtas and in the instruments made under these Acts.

Section II (b) of the Acts reads as follows:

“Masculine and Feminine Every word importing the masculine gender shall, unless the contrary intention appears, be construed as if it also imported the feminine gender.”

The converse of this does not apply, however. There is no provision in the Act for being able to construe the feminine gender as also importing to the masculine.

The consequences of this is that it is not possible at present to use the feminine gender in Acts or instruments of the Oireachtas which will primarily affect women.

The Commission recommends that the Interpretation Act, 1937 should be redrafted with a view to:

(a) ending discriminatory and unnecessary gender-specific language in Bills, Acts and instruments of the Oireachtas, for example, by using s/he and chairperson;

(b) enabling the adoption of the feminine gender in legislative measures clearly and primarily addressed at women.”

Legislation establishing the two new universities contained the words “he” and “she”. However, we replaced both words with “the Minister” and “the student”, words which could apply to either gender.

Senator O'Toole is right when he says that many might say we are getting hung up on he and she and chairman and chairperson but that is not the point, and no doubt some journalists will say this is due to pressure from feminists. I agree with Senator O'Toole. First, the mind of the person drafting the legislation is imbued [464] with the idea that the male is the only human subject and that comes through in the legislation. It raises the question of role models. Every provision in legislation uses “he”, never “she”, constantly reinforcing the male as the superior being. I feel very strongly about the Interpretation Act. If we are to begin to improve the status of women, the Interpretation Act, 1937, should be re-examined; the Second Commission on the Status of Women referred to it in their report and considered it very important. We were in contact with the Office of the Attorney General to see if the linguistic situation had improved, but I have to report that it is progressing slowly; it does not seem to be an item of great urgency with that office.

When Senator O'Tooke spoke on Second Stage, he complimented those who drafted this legislation in non-sexist language. We tried to eliminate sexist language as much as possible, but we were still left with some cases where it would be too convoluted to use “she” and “he”. In this case, I would be willing to accept the amendment but it should be coupled with something else. There is no point in just replacing “he” with “she” in this case because it will come up again and will be contingent on how the Minister of the day regards the matter.

I would like to get a clear proposal from this House and I would then speak with, or write to, the Taoiseach — the Office of the Attorney General is under his jurisdiction — and say that, in the course of introducing this legislation, all Members of this House were of the opinion that the Interpretation Act, 1937 should be immediately addressed and an amendment should be introduced as per the Second Commission for the Status of Women, to end the practice of using the masculine gender exclusively in legislation. We are talking about human rights. Half of our population are women and I do not know why the Act cannot be changed. I suggest that Senator O'Toole, as proposer of the amendment — I know he is adroit at getting publicity — should make a strong——

[465]Mr. O'Toole: Information on Joe John O'Toole  Zoom on Joe John O'Toole  I keep watching the Minister of State.

Mrs. O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  Touché, as they say. Senator O'Toole should approach the Office of the Attorney General and the Taoiseach himself. We should try to amend the 1937 Act whereby all legislation uses the masculine gender exclusively.

Dr. Henry: Information on Mary E.F. Henry  Zoom on Mary E.F. Henry  I am delighted the Minister of State has made this proposal and I suggest we follow it up. What she has said is important. When she was the Minister for Education, the Minister of State was the first to say school books had to get way from “Tá Mamaí ag déanamh císte milis sa chistin”.

Mrs. O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  “Agus tá Daidí ag glanadh an ghluaisteáin nó ag tiomáint an ghluaistéain.”

Dr. Henry: Information on Mary E.F. Henry  Zoom on Mary E.F. Henry  I know the Minister's advisers — I am delighted to see that there is a woman among them — do not draft this legislation in an intentionally sexist manner, but it is unfortunate when legislation is seen to refer only to the male sex. Will the Minister of State change this Bill in the way Senator O'Toole suggested?

Mrs. O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  What I said to Senator O'Toole was that, in page 7, paragraph (a), line 14, to delete “him” and substitute “the employee”——

Dr. Henry: Information on Mary E.F. Henry  Zoom on Mary E.F. Henry  Will this happen because while the Minister is correct in constantly referring to the Interpretation Act during this debate, we are continually told — I realise it is not the Minister of State's fault — that either the Minister for Equality and Law Reform or the Attorney General is the appropriate person to deal with this issue.

Mrs. O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  That is definitely his affair.

[466]Dr. Henry: Information on Mary E.F. Henry  Zoom on Mary E.F. Henry  May I ask the Minister of State if, in this case, she will be able to change the Bill?

Mrs. O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  As put down by Senator O'Toole, yes.

Mr. Sherlock: Information on Joe Sherlock  Zoom on Joe Sherlock  Once the Minister of State has replied in the affirmative——

Mrs. O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  The Senator should have been here last week; there were two affirmatives.

Mr. Sherlock: Information on Joe Sherlock  Zoom on Joe Sherlock  Should I take it that the Minister of State will also amend line 17 of the section?

Mrs. O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  I may come back to the Senator on that tomorrow.

Mr. Sherlock: Information on Joe Sherlock  Zoom on Joe Sherlock  She has not figured it out.

Mrs. O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  There is a specific point put to me——

Mr. Sherlock: Information on Joe Sherlock  Zoom on Joe Sherlock  What does the Interpretation Act interpret and where does it come from? I previously raised this matter when I was in the other House and was given that reply as well. I am glad it has been taken on board; it is about time.

Mr. O'Toole: Information on Joe John O'Toole  Zoom on Joe John O'Toole  I wished to amend “he” on line 17 as well.

This amendment is different to the Interpretation Act. The Act states that every word using the masculine gender shall be construed to include the feminine gender. I am trying to accommodate the Minister of State's point that legislation as far as possible should not be written in gender specific terms. I am trying to achieve that with this amendment. The Minister of State has made a satisfactory response and could she remove “he” out of line 17 altogether on Report Stage.

Amendment put and agreed to.

[467]An Leas-Chathaoirleach:  Amendment Nos. 18 and 19 are out of order as they involve potential charges on the revenue.

Amendments Nos. 18 and 19 not moved.

Mr. O'Toole: Information on Joe John O'Toole  Zoom on Joe John O'Toole  I move amendment No. 20:

In page 7, between lines 24 and 25, to insert the following:

“(b) the insertion of the following subsection after subsection (1):

‘(1A) Without prejudice to the generality of subsection (1), re-engagement or compensation should only be considered where reinstatement is not practicable having regard to all the circumstances.’ .”.

I try hard to understand the conventions involved in the writing of Bills and also to recognise that amending legislation is even more difficult. Although we have sections, subsections, paragraphs and sub paragraphs, I have no name to call what I have written down as (1A). The Minister of State and her advisers could facilitate me by indicating how (1A) is categorised because it is neither a section, subsection, paragraph or subparagraph. I have asked that it be deleted in other parts of the Bill because I find it difficult to deal with.

I am putting forward a straightforward and reasonable proposal that re-engagement is completely different to reinstatement and often, re-engagement in similar employment is fair and may be the only fair compensation.

I want to be clear that somebody found to have been unfairly dismissed should be reinstated. I recall dealing with such a situation when the Minister was in the Department of Education. A case was taken not under the unfair dismissals legislation but under a domestic appeal tribunal and the person was reinstated. Reinstatement in those cases can be very difficult because a job can be filled following a dismissal even if it is later found that the dismissal was unfair.

[468] In the case I mentioned, a teacher was dismissed and was later found to have been dismissed unfairly. In the meantime the position was filled and it created a very serious problem. In teaching that problem can be easily dealt with by redeploying both teachers on a panel system. There may be an element of compensation involved but one recognises that in many other areas there is not that homogenous type of employment and it could be quite difficult. A teacher who is unfairly dismissed should be reinstated in the same position and should only be reengaged in another school or area as a last resort. That problem should be cleared up in the legislation and the Tribunal should be aware of it when making their final decision. Those of us who have dealt with tribunals know that it is often difficult to recommend a person's reinstatement in the same position because it causes a domino effect within the employment.

Mrs. O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  Sometimes the person does not want to go back to the same place.

Mr. O'Toole: Information on Joe John O'Toole  Zoom on Joe John O'Toole  That is correct. Nevertheless in the course of a hearing the employee or the employee's representatives will indicate the desired form of redress. I know of cases where a teacher did not, under any circumstances, want to go back to the same school. I am not saying that a person must accept reinstatement but there should be a clear understanding that the first option for a person who it has been found was unfairly dismissed is reinstatement in precisely the same position. Re-engagement or compensation should be subsidiary and should only be considered if reinstatement is not an option. It is a fair point and I ask the Minister to concede it.

Mr. Neville: Information on Dan Neville  Zoom on Dan Neville  I agree with Senator O'Toole on this issue but the reality is that in almost all cases the desired option is compensation. Due to the fact that a case has been brought to the tribunal the relationship between the employer and [469] employee has deteriorated to the extent that neither want reinstatement or re-engagement. It is significant that Ireland has the lowest level of reinstatement of any country in Europe and that is unfortunate. I agree wholeheartedly that the first redress should be reinstatement.

Mrs. O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  If it is warranted.

Mr. Neville: Information on Dan Neville  Zoom on Dan Neville  If a person is unfairly dismissed they should get their job back but, unfortunately, there is a culture problem with regard to taking an issue such as this to tribunals. Any remaining relationship between the employer and the employee breaks down except in big organisations that can cope with such cases. Approximately 99 per cent of cases that go to the tribunal are from smaller companies where there is a close relationship between the chief executive and the employee. It is unfortunate that in almost all cases the preferred option of both employer and employee is compensation. Anything which would encourage a move away from that and towards re-engagement and, if possible, reinstatement, should be done. If this amendment does that it will have my full support.

Professor Hillery: Information on Brian J. Hillery  Zoom on Brian J. Hillery  I understand the point about reinstatement. It should be the first option for consideration.

Mr. Neville: Information on Dan Neville  Zoom on Dan Neville  It is in reality. The first thing that is considered is if the person can go back.

Mrs. O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  I agree.

Professor Hillery: Information on Brian J. Hillery  Zoom on Brian J. Hillery  It is one of the three main options. The question of its appropriateness in the circumstances does arise as Senator Neville said. Regrettably relationships deteriorate to the point where reinstatement may not be a feasible option. To an extent this relates to voluntary arrangements which characterise Irish industrial relations. If a case goes as far as the tribunal it is an extreme situation in Irish terms whereas it might be normal practice in the United States or elsewhere where they are more accustomed [470] to using legal mechanisms to resolve a dispute. It should be left to the discretion of the tribunal, as Senator Neville said, to consider reinstatement as the first option but not necessarily to impose it in the amended legislation.

Mrs. O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  In answer to Senator O'Toole's technical point, I am told that the way to refer to them is as clauses and sub-clauses.

Mr. O'Toole: Information on Joe John O'Toole  Zoom on Joe John O'Toole  One keeps learning.

Mrs. O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  Exactly, one keeps learning. The three methods of redress are reinstatement, re-engagement and compensation. As Senator Neville said the tribunal will first consider reinstatement. Our culture and the voluntary arrangements that Senator Hillery mentioned, as distinct from the rigid application of labour law in other countries are part of the reason the option of reinstatement is rarely taken. As the Senator said, it is usually employees of smaller firms who take unfair dismissal cases. Perhaps the employee is from a small town or village where everybody knows everybody and what took place in a small firm would be widely known.

Before I came into this job and knew the technicalities of redress under labour law — and I have much to learn yet — I met people who told me that they would not go back to their job even if they had the option of reinstatement.

Mr. Doyle: Information on Joseph Doyle  Zoom on Joseph Doyle  It can happen in a constituency.

Mrs. O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  Yes, indeed. I thought of that with regard to myself when the Senator spoke about unfair dismissals, but we will say no more about that.

Mr. Neville: Information on Dan Neville  Zoom on Dan Neville  It was demotion, Minister.

Mrs. O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  Unfair, I said. Our culture and the fact that we know one another's business so well militates against reinstatement in many cases even though, as Senator Neville said, it would be the tribunal's first consideration.

[471] The impetus for the amendment probably arises from concern at the small number of reinstatements, and this was expressed by many Senators on Second Stage. I admit that at first glance the number of reinstatements or re-engagements awarded relative to the number of determinations may appear low. With regard to reinstatements, Senators will appreciate that the events leading up to a dismissal and the act of dismissal itself often damage beyond repair the employer/employee relationship. The destruction of a good working relationship often militates against reinstatement, a fact which is often recognised by both sides in a dismissal when expressing their preferred form of redress. Given the small size of firms and the nature of relationships between people, which can often work very well, in the breakdown of a working relationship it is often the employee who does not wish to be reinstated. We may rail against that and we may say it is different in larger corporations but that is the reality.

Amendment, by leave, withdrawn.

Mr. Quinn: Information on Fergal Quinn  Zoom on Fergal Quinn  I move amendment No. 21:

In page 8, paragraph (c), line 3, to delete “disregarded” and substitute “deducted, but the said amounts shall be payable by the employer to the State as part of the judgment”.

The purpose of this amendment is to save the State money and to establish fairness between the parties involved. If the new Bill is not amended, it will replace one anomaly with another and perpetuate unfairness at the expense of the State. At present, if someone is judged to be unfairly dismissed and fails to find work immediately, that person will normally become entitled to social welfare payments and, possibly, to a refund of income tax as well. These payments reduce the financial cost to the employee of the unfair dismissal. The 1977 legislation provided these payments by the State could be taken into account in calculating [472] the financial loss to the employee.

From the employee's point of view that seemed fair. However, it was unfair to the State and unduly generous to the employer. Under the present system the State pays for part of the loss to the employee. In other words, the employer's liability for the employee's financial loss is reduced by the amount the State pays. Clearly this is crazy. This is not what was intended or what should happen. The State should not subsidise the cost to an employer of an unfair dismissal. Therefore, it is right that the new legislation removes this anomaly. I congratulate the Minister for doing so.

However, the Bill, as drafted does so in the wrong way. This Bill suggests these payments from the State be “disregarded” in assessing the financial loss to the employee. This means that the employer will pay more, and that is right; I do not think anybody has any quarrel with that. However, the present Bill will make the State subsidise the employee. The employee will get fully compensated for the financial loss and the State will pay part of the loss twice.

This is just as crazy a system as that it sets out to replace. The State is an innocent party in this relationship. There is no reason for the State to be at any loss. When an unfair dismissal takes place the employer should pay the whole cost. The amendment I propose would put that correct.

I suggest the employer pay the employee the same amount as he would pay under the present legislation — the amount of the financial loss — less the amount the employee got from the State in social welfare payments and in tax refunds. In addition, I propose this change. The employer would then recompense the State for these payments which would never have been made but for the unfair dismissal in the first place.

In this way there would be fairness. The employee would be fully compensated but would not get paid twice, the employer would pay the full cost of the unfair dismissal and not be subsidised by the State, as is the case at the moment, [473] and the State would not have to pay for something in which it was not involved. By comparison with the present arrangement and the one proposed in this new Bill, my proposal would save the State money.

I realised my scheme might be cumbersome, so I have given some thought to making it easy to administer. The employer should make two payments instead of one, the first to the employee and the other to the State. The latter could perhaps be made to the Department of Enterprise and Employment which would then allocate the sums appropriately to the Department of Social Welfare and the Revenue Commissioners. The basis of the proposal is to save the State money and to establish fairness between all the parties concerned.

I commend this amendment to the House and to the Government.

Mr. Neville: Information on Dan Neville  Zoom on Dan Neville  I support Senator Quinn. I welcome this section because there was confusion and endless arguments within the tribunal as to whether social welfare payments and tax refunds should be taken into consideration when calculating loss. Opinion is divided in the tribunal and there is no consistency of approach in that area. This will tidy up that problem.

I agree with Senator Quinn that although the dismissed employee is in receipt of social welfare payments during the period of the calculation of loss, his or her loss is calculated on the basis of what he or she would have earned if in employment. Therefore, during the period of loss there is a net gain to the dismissed employee under the Minister's proposal. I understand in other jurisdictions what Senator Quinn has suggested is followed. The State is refunded the amount of social welfare paid to the employee during the period of calculation of loss which can last up to two years.

Mrs. O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  I thank both Senators for their acclaim of that section of the Bill. Senator Quinn said in his view it [474] gives rise to another anomaly. The purpose of this section is to give legislative effect to an existing practice of some divisions of the Employment Appeals Tribunal in disregarding social welfare payments or income tax rebates made to an unfairly dismissed employee when assessing the employee's financial loss in that period. One of the reasons behind my proposal is that I find it unacceptable that employees' awards should be reduced by the amount of the social welfare payments to which the employee was statutorily entitled while the employer's wrong doing in unfairly dismissing the employee is effectively subsidised by the employee and the State.

I appreciate that Senator Quinn's amendment goes some way to addressing the problem. I believe it is unnecessarily bureaucratic and inflexible, although he presented it in good faith as being a matter of two payments instead of one. I think it is unnecessarily inflexible and bureaucratic in directing the repayment of these moneys in all cases.

Compensation is awarded only to an unfairly dismissed employee who may be facing into a period of unemployment of unknown duration. In relation to the earlier amendment, we saw how few of those cases result in reinstatement for one reason or another. The employee during that period will involuntarily lose valuable social welfare credits for which he or she has paid. That point is effective. I do not think the various adjudicative bodies under this legislation should be charged with the responsibility of deciding what, if any, portion of those payments should be repaid.

Nothing in my proposal prevents the Department of Social Welfare from recouping the moneys to which it may be statutorily entitled. I believe it to be the appropriate body to assess what, if any, amount should be repaid by the employee. I recognise the principle and thrust of Senator Quinn's amendment but it does not allow for that flexibility.

Similarly, I believe the repayment of income tax rebates should be decided by the Revenue Commissioners. Awards [475] under this legislation in excess of £6,000 are liable to taxation under the income tax code. Reducing an award by the amount of rebate received could amount to a double taxation on the employee. Senator Quinn's amendment seeks to remove from the State the liability for those double payments. However, we must take into account that the Employment Appeals Tribunal decided against the employers and in favour of the employees in these cases, thus it is the employers who were at fault. I feel, as champion of the employee, that we should consider the stress, period of unemployment and uncertainty as to their future experienced by employees. It is open to the Department of Social Welfare to seek repayment of social welfare payments already received and to the Office of the Revenue Commissioners to recoup any taxes for which those payments were liable. The purpose of this legislation should not be to make us responsible for recovering these moneys.

Progress reported; Committee to sit again.


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