New provisions came into force on 24
April 2000 which effectively give employees the right to strike in certain
The new measures provide that an
employee may be regarded as being unfairly dismissed if the principal reason for
the dismissal is that the employee took part in "protected" industrial
action. "Protected" industrial action is defined broadly as industrial
action lawfully organised in accordance with the Trade Union and Labour
Relations (Consolidation) Ad 1992. However, provided the employer complies with
a proper procedure, this right to claim unfair dismissal lasts only eight weeks
from the commencement of the protected industrial action.
For an employee to claim that
his/her dismissal is automatically unfair, the employee must show that he/she
during the period of protected industrial action and that
period has not lasted for more than eight weeks; or
after a period of
protected industrial action which lasted for less than eight weeks: or
eight weeks of protected industrial action, where the action is continuing. In
this case, the employee must also be able to show that the employer failed to
take such procedural steps as would have been reasonable for the purposes of
resolving the dispute to which the industrial action related.
In all three
cases, the employee must also show that the reason, or principal reason for the
dismissal is that the employee took protected industrial action.
The new provisions provide some
guidance on how to decide whether an employer has acted reasonably in resolving
a dispute, although questions on the interpretation of these provisions are
bound to arise.
With all employees qualifying for
this protection, regardless of their age or length of service, employers should
keep this new 'right to strike' firmly in mind, when dealing with any form of