Kathryn Reilly (Sinn Fein) | Oireachtas source

I move amendment No. 2:
In page 12, before section 11, but in Part 3, to insert the following new section:

11.--(1) In this section--“terms and conditions” means terms and conditions no less favourable than those that would have been applicable had the employee not been dismissed and include seniority, pension and other rights that the period prior to the dismissal should be regarded as continuous;
“reinstatement” has the same meaning as in the Unfair Dismissals Acts.(2) An Interim Relief Order for continuation of the contract of employment shall include the amount which is to be paid to the employee in respect of each pay period falling between the date of dismissal and the final determination or settlement of the complaint.
(3) An employee, having made a protected disclosure, who is, or is about to be, unfairly dismissed, may apply for interim relief, including reinstatement pending their case being finally determined.
(4) An employee, or trade union on their behalf, who presents a complaint to the Rights Commissioners or the Employment Appeals Tribunal that he has been unfairly dismissed and--(a) the reason for the dismissal relates wholly or mainly to their making a protected disclosure, or
(b) the reason relates wholly or mainly to their being a witness or giving evidence as part of an investigation on foot of a protected disclosure,may apply to the Circuit Court for Interim Relief.
(5) The application for Interim Relief must be made before the end of the seven days immediately following the effective date of the termination (whether before, on or after that date).
(6) (a) The Circuit Court on application of a request for Interim Relief may, if the unfair dismissal complaint has an arguable case, require the employer to do, or cease to do, as the case may be, anything that the Court considers necessary and shall ask the employer whether he is willing pending the final determination or settlement of the complaint by the Employment Appeals Tribunal, the Labour Court, or the final appeal to the Circuit Court under the Unfair Dismissals Acts whichever applies--

(i) to reinstate the employee (that is to treat him in all respects as if he had not been dismissed),
(ii) if not, to reinstate him in another job on terms and conditions not less favourable than those which would have been applicable to him if he had not been dismissed.

(b) If the employer states that he is willing to reinstate the employee, pending the final determination of the case the Circuit Court shall make an Order to that effect.
(c) If the employer states that he is willing to reinstate the employee in another job, and specifies the terms and conditions on which he is willing to do so the Circuit Court shall ask the employee whether he is willing to accept the reinstatement on those terms and conditions.
(d) If the employee is willing to accept the reinstatement on those conditions, the Circuit Court shall make an order to that effect.
(e) If the employee is not willing to accept the job on those terms and conditions--

(i) where the Circuit Court is of the opinion that the refusal is reasonable, the Circuit Court shall make an order for the continuation of the contract of employment until the case is finally determined,
(ii) otherwise the Circuit Court shall make no order.

(7) If on the hearing of an application for interim relief the employer--(a) fails to attend,
(b) states he is unwilling to reinstate the employee in accordance with this section,the Circuit Court shall make an Order for the continuation of the employee's contract pending the final determination of the case.
(8) At any time between the making of an order under this Act and the final determination or settlement of the complaint the employer or the employee can apply for the revocation of the Order on the ground of relevant change of circumstances since making the Order.
(9) No costs shall be awarded to the parties in respect of the application for Interim Relief under this Act.
(10) The existence of an Interim Relief Order under this Act does not prevent a complaint of unfair dismissal being heard under the Unfair Dismissals Acts.”.

This amendment goes back to the Second Stage debate on this legislation on seeking an amendment to provide for injunctive relief to be granted to prevent the unfair dismissal of an employee following his or her making a protected disclosure in accordance with the legislation.

The purpose of interim relief provisions is to ensure that employees be free of retaliation when making allegations and to protect disclosures. Similar to the Planning and Development Act 2000, the proposal is to provide a statutory basis for interim relief orders that would operate on the same principles of the commonly termed "planning injunction" whereby relief is available. Under the Planning and Development Act 2000 interim orders may be made, pending the case being heard. This proposal is based on the principle that, pending the complaint of unfair dismissal being finally determined by the Employment Appeals Tribunal at the Labour Court, a form of injunctive interim relief either preventing the dismissal or reinstating the employee, after the act of dismissal, would be available from the Circuit Court. That court already has extensive experience hearing appeals of unfair dismissal cases. Therefore, there would be no-brainer inclination towards curial deference when determining where an arguable case lies.

Furthermore, the granting of injunctive relief is not alien to industrial relations law. For example, section 19 of the Industrial Relations Act 1990 deals with circumstances under which the court may, or may not, grant an injunction to the employer, which is in line with the Campus Oil guidelines, as the unfair dismissal will have a serious and detrimental consequence for the employee contrary to the public interest purpose of the legislation.

Awards and damages are not a sufficient remedy for an unfairly dismissed employee, especially as unfair dismissal cases take an average of two years to be heard currently. A two-year period without pay will affect employees. It will affect their ability to pay a mortgage, for example, or meet any other borrowing requirements. This, combined with the ongoing negative impact on career and the damage to their name and reputation caused by the whiff of sulphur surrounding a dismissal. They all combine in such a way that the existing system of redress, in the sole form of compensation for financial loss, is unsuitable and does not provide adequate protection. The core principle of justice delayed is justice denied applies in this instance. The balance of convenience should be to preserve the employee in his or her job and to protect him or her from unfair dismissal when reporting a wrongdoing. I know that the Minister said that he would examine the matter on Second Stage and I am interested in hearing his comments.