Defence Forces (Temporary Provisions) (No. 2) Act, 1940
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Restoration to employment of, and other provisions in relation to, reservists called out on permanent service and soldiers enlisted in the Forces for a period of emergency. |
57.—(1) Where— | |
(a) either— | ||
(i) a person who is a reservist has been before, or is after the passing of this Act, called out on permanent service, or | ||
(ii) a person enlists in the Forces, and | ||
(b) such person (in this sub-section referred to as the former employee) was, at the time he was so called out on permanent service or enlisted (as the case may be), employed by another person (in this sub-section referred to as the former employer) who is neither a Minister of State nor a statutory body responsible to a Minister of State, | ||
the following provisions shall have effect, that is to say:— | ||
(c) it shall be the duty of the former employer to reinstate the former employee at the termination of his military service in an occupation and under conditions not less favourable to him than those which would have been applicable if he had not been so called out on permanent service or enlisted; | ||
(d) if the former employer fails to so reinstate the former employee, the former employer shall be guilty of an offence under this sub-section and shall be liable on summary conviction thereof to a fine not exceeding fifty pounds; | ||
(e) if the former employer is found guilty of such offence, the court by which he is so found guilty may also order him to pay to the former employee such amount (not exceeding six times the sum which would, if he had not so been called out on permanent service or had not so enlisted (as the case may be) and had been in the employment of the former employer at the termination of his military service, have been the monthly remuneration payable to him by the former employer at the time of such termination) as the court thinks fit; | ||
(f) if the former employer is charged with an offence under this sub-section in relation to the former employee, it shall be a good defence to such charge if the former employer proves— | ||
(i) that the former employee did not before the expiration of one month after the termination of his military service, apply to the former employer for reinstatement, or | ||
(ii) that having been offered reinstatement by the former employer, the former employee failed, without reasonable excuse to present himself for employment at the time and place notified by the former employer, or | ||
(iii) that by reason of a change of circumstances (other than the engagement of some other person to replace the former employee)— | ||
(I) it was not reasonably practicable to reinstate the former employee, or | ||
(II) the reinstatement of the former employee in an occupation and under conditions not less favourable to him than those which would have been applicable to him had he not been so called out on permanent service or enlisted was impracticable and the former employer has offered to reinstate him in the most favourable occupation and under the most favourable conditions reasonably practicable. | ||
(2) For the purpose of securing the fair adjustment of contracts of service or apprenticeship in force between employers and employees when the employees are called out on permanent service or enlisted, the Minister for Industry and Commerce may make regulations relieving the parties to such contracts of all or any of their obligations thereunder in respect of the period of military service of such employees, and may also make regulations modifying such contracts by extending the period of service or apprenticeship thereunder by a period not exceeding the said period of military service, and adapting the terms of the contracts in relation to any such extension. | ||
(3) In the relation to any person (in this sub-section referred to as the former employee) who being a reservist has been called out on permanent service or, not being a reservist, has enlisted in the Forces, references in this section to the person by whom the former employee was employed at the time he was so called out on permanent service or enlisted shall, as respect any thing to be done, after the expiration of his military service, be construed as including references to any person for the time being carrying on the undertaking or service in which the former employee was employed when he was so called out on permanent service or enlisted or carrying on any undertaking or service in which it has been amalgamated or in which it was comprised on the date on which the former employee was so called out or enlisted. | ||
(4) If the Minister for Industry and Commerce is satisfied that it is necessary to restrain employers from terminating the employment of their employees by reason of any duties or liabilities which they are or may become liable to perform or discharge as members of the Defence Forces by virtue of the provisions of the Acts or this Act, or to make provision for the prevention of evasion of the provisions of this section, he may make regulations for those purposes, and such regulations may make provision for the punishment of breaches of the regulations and may in particular apply with respect to persons found guilty of such breaches of any of the provisions of sub-section (1) of this section relating to persons found guilty of offences under the said sub-section, with or without modifications. | ||
(5) Every regulation made under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling such regulation is passed by either such House within the next subsequent twenty-one days on which such House has sat after such regulation is laid before it, such regulation shall be annulled accordingly but without prejudice to anything previously done under such regulation. | ||
(6) Where— | ||
(a) either— | ||
(i) a person who is a reservist has been before, or is after the passing of this Act, called out on permanent service, or | ||
(ii) a person enlists in the Forces, and | ||
(b) such person (in this sub-section referred to as the former employee) was at the time he was so called out on permanent service or enlisted (as the case may be) employed by a person (in this sub-section referred to as the authority) who is either a Minister of State or a statutory body responsible to a Minister of State, | ||
the following provisions shall have effect, that is to say:— | ||
(c) the authority shall reinstate the former employee at the termination of his military service in an occupation and under conditions not less favourable to him than those which would have been applicable if he had not been so called out on permanent service or enlisted; | ||
(d) paragraph (c) of this sub-section shall not apply in respect of the former employee— | ||
(i) if the former employee does not, before the expiration of one month after the termination of his military service, apply to the authority for reinstatement, or | ||
(ii) if, having been offered reinstatement by the authority, the former employee fails, without reasonable cause, to present himself for employment at the time and place notified by the authority, or | ||
(iii) if, by reason of a change of circumstances (other than the engagement of some other person to replace the former employee)— | ||
(I) it is not reasonably practicable to reinstate the former employee, or | ||
(II) the reinstatement of the former employee in an occupation and under conditions not less favourable to him than those which would have been applicable to him had he not been so called out on permanent service or enlisted is impracticable, and the authority offers to reinstate him in the most favourable occupation and under the most favourable conditions reasonably practicable, or | ||
(iv) if the former employee did not, in case he was employed by the authority at the time he enlisted in the Forces or the Reserve, obtain the consent of the authority or some person acting on behalf of the authority to his enlisting in the Forces or the Reserve. | ||
(7) In this section— | ||
the word “reservist” means a man of the Reserve; | ||
the expression “called out on permanent service” means, in relation to a reservist, called out on permanent service in pursuance of section 221 of the Principal Act; | ||
the expression “enlists in the Forces” means enlists in the Forces for the period of an emergency under Chapter II of Part IV of this Act, and cognate words shall be construed accordingly; | ||
the expression “termination of his military service” means-— | ||
(a) in relation to a reservist, the date on which he is released from military service next subsequent to his being called out on permanent service, | ||
(b) in relation to a person who enlisted in the Forces, the date of his discharge from the Forces; | ||
the expression “period of military service” means— | ||
(a) in relation to a reservist, the period commencing on the date on which he is called out on permanent service and ending on the date of the termination of his military service next following such calling out, | ||
(b) in relation to a person who enlisted in the Forces, the period commencing on the date on which he so enlisted and ending on the date of the termination of his military service next following such enlistment. |