Dismissing the Law

Fintan O'Toole reports on how a loophole has been cut in the Unfair Dismissal Act.

On 25 February 1982 Christopher Treacy won his case. The Employment Appeals Tribunal upheld his claim that he had been unfairly dismissed by his employer and awarded him compensation of £1,402. According to the Unfair Dismissals Act, introduced by Michael O'Leary in 1977, Vincent Thomas, a haulage and warehousing firm based in Ballyfermot, Dublin, had six weeks in which to appeal the award and in the absence of an appeal to pay the money to Christopher Treacy. Almost a year after his case was first heard, Christopher Treacy, unemployed at the age of sixty-two and with no prospect of work, has still not been paid the money awarded to him and the government agencies charged with enforcing his claim have so far failed to take action against Vincent Thomas.

When he started work with Vincent Thomas in July 1979, he was employed as a warehouseman at £60 a week. His duties were loading lorries, stacking pallets for a forklift truck and generally keeping the warehouse in good order. After over a year and a half he began driving the forklift occasionally, doing only small jobs when the trained drivers were not available. Although he had an accident with the forklift and injured his foot, he was asked to use it more and more. Since the other forklift drivers were being paid £30 a week more, Christopher Treacy told his employers that he would drive the forklift only if he were put on the wages of a forklift driver. When he made this demand on 6 July 1981, he was given a weeks notice by Vincent Thomas.

Christopher Treacy told the Employment Appeals Tribunal in January of last year that shortly before his dismissal he had been reprimanded by Vincent Thomas, the company's managing director, for telling his fellow workers that the only way to get paid the National Wage Agreement was to join a union. He was told that the company did not want unions. Vincent Thomas confirmed to the Tribunal that he had reprimanded Christopher Treacy because he "did not want him upsetting the employees". He would be unhappy, he said, if the workers felt that they had to be unionised to get their entitlements. He agreed that this conversation about unions was in mind when he dismissed Christopher Treacy but said that it did not influence his decision. Mr. Thomas' distaste for unions is understandable - at the time of his dismissal Christopher Treacy was on £76.74 for a forty-five hour week.

Vincent Thomas did not pay the £1,402 compensation within the statutory six-week period. According to the Unfair Dismissals Act, the Minister for Labour "may, if he thinks it appropriate, having regard to all the circumstances to do so," take proceedings in the Circuit Court at the expense of his department on behalf of an employee against an employer who fails to carry out the judgement of the Employment Appeals Tribunal. This rather circumscribed formula is the only guarantee that a victim of unfair dismissal has that his or her claim will be upheld. When Vincent Thomas showed no sign of paying up, Christopher Treacy, through his solicitor, referred his case to the Department of Labour with a request that they should institute proceedings in the Circuit Court against Vincent Thomas.

In August, Vincent Thomas wrote to the Department of Labour asking for two weeks in which to pay Christopher Treacy the money they owed him. The following month Vincent Thomas again wrote to the Department of Labour, this time saying that they were experiencing financial difficulties and suggesting that the amount owed could be paid in weekly instalments. No figure was put on the amount to be paid each week. It is impossible to verify the financial position of Vincent Thomas Limited since the company has failed to register its annual returns with the Companies Office since it was first incorporated in March 1979.

The Department of Labour, meanwhile, used its discretion under the Unfair Dismissals Act, not to take court proceedings against Vincent Thomas, but to enter into protracted negotiations with the company. In a letter last November to Michael O'Leary, who had taken up Christopher Treacy's case, Gene Fitzgerald, then Minister for Labour, explained his Department's failure to act. "The normal practice then is for the Department to endeavour in the first instance to persuade the employer to pay the amount due ... It is of course a matter for judgement in each individual case how long an employer should be given to make a payment before proceedings are instituted." The Minister conceded that "In retrospect, it may be considered that the Department was too lenient with the employer and that it should perhaps have instituted legal proceedings sooner but, as I have just said, it did seem that its efforts to secure payment to Mr. Treacy without recourse to the courts would be successful. "

Months of negotiation with Vincent Thomas yielded not a single penny for Christopher Treacy who in the meantime was suffering considerable financial hardship. The Department of Labour used its discretion in favour of Vincent Thomas, who had been found by the Employment Appeals Tribunal to have acted unfairly, rather than of Christopher Treacy who had been victimised and was in very difficult circumstances. Only after constant pressure from public representatives and from Christopher Treacy's solicitor did the Department finally, on October 1, refer the case to the Chief State Solicitor. The Chief State Solicitor's office, however, was asked not to bring immediate proceedings, but to "consider instituting proceedings". They continued to use the discretion granted under the Act to negotiate with Vincent Thomas and to consider proposals from the company.

Shortly after the case was referred to the Chief State Solicitor Vincent Thomas proposed to pay Christopher Treacy £ 108 a month from November 1. In November he received three post· dated cheques from the company for this amount. So far, no other money has been forthcoming and no binding agreement has been made by Vincent Thomas to pay the rest. Even if the money continues to be paid at the rate, the award will not be paid off until February 1984, two years after it was first made and ordered to be paid within six weeks. It is still open to the Chief State Solicitor's office to take the case to the Circuit Court.

Because the case is with the Chief State Solicitor, the Department of Labour says it cannot comment on the reasons for the delay in taking action.. Its Information Officer will say only that "You have to face the harsh realities of life. If the employer is in difficulties, it is very difficult to ensure payment. If this man is getting a hundred pounds a month, that's better than nothing at all." For Christopher Treacy, the Unfair Dismissals Act which is supposed to vindicate his rights has turned into a long-running farce.