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Supreme Court rules in favour of man dismissed from job in important test case

The appeal by Tomasz Zalewski over the treatment of his complaint alleging unfair dismissal from his job is an important test case.

IN A LANDMARK decision the Supreme Court has declared that laws placing an absolute ban on employment disputes being heard in public is unconstitutional.

The court made the declaration that certain provisions of the 2015 Workplace Relations Act are repugnant to the constitution when ruling on an appeal brought by a Polish man who claimed he was unfairly dismissed from his job at a convenience store over the constitutionality of new procedures for determining workplace disputes.

The Seven judge court on a 4 to 3 majority did not find that the process operated by the Workplace Relations Commission under the 2015 Act, including having adjudication officers determine complaints, involves the “administration of justice” reserved under the Constitution to judges, was unconstitutional.

The court’s decision is understood to have massive implications for the workings of the State’s industrial relations dispute resolution apparatus.

WRC

The appeal by Tomasz Zalewski over the treatment of his complaint alleging unfair dismissal from his job is an important test case concerning the constitutional validity of procedures under Part V of the Workplace Relations Act 2015.

In a four to three majority ruling the Chief Justice Justice Frank Clarke, Justice Elizabeth Dunne and Justice Iseult O’Malley agreed with Justice Donal O Donnell’s findings that the absolute ban on hearing of disputes in public was repugnant to the constitution.

“Approached through the lens of Article 37 of the Irish Constitution, I cannot accept that there is a justification for a blanket prohibition on hearings in public before the adjudication officer. Article 34.1 of the Constitution makes clear that public hearings are of the essence of the administration of justice,” Justice O’Donnell said.

The court said it was prepared to make a declaration to the effect that such hearing may, but not must, be held in public.

The court also deemed that he failure to have any provision including in the Act for the taking of evidence under oath by adjudication officers was also unconstitutional.

However, the majority of the court did not accept the argument that the determination of disputes by adjudication officers breached the constitution. and that it was a role that must be carried out by a judge.

The majority court of the court agreed that the jurisdiction created by the 2015 Act is not an impermissible administration of justice, amounted to a limited administration of justice and falls under Article 37 of the Constitution.

The dissenting judges were Justice William McKechnie, Justice John McMenamin and Justice Peter Charleton, who in their judgements said that the determinations allowed for under the 2015 act by adjudication offers was unconstitutional and should be struck down.

Justice Charleton, who was critical of the WRC’s treatment of Zaleswki said that a full appeal to a court from an administrative body has been abolished by the 2015 Act in favour of private hearings by administrators.

Justice is about the truth coming out, he said.

“Justice under the Constitution is about basing vindication or denial in key matters of human life within the realm of the courts, or at the very least allowing an appeal to a judge by way of a rehearing if an administrator’s verdict is fundamentally disputed.”

Curiously, the one place where all of that fairness of procedure is to be found is in a court, he added.

However, that is also the path blocked by this legislation to those who may have a fundamental need to be vindicated as to their honesty and their competence as working people, he added.

In his appeal Zaleswki, whose complaint of unfair dismissal was rejected by an adjudication officer, argued the process involves the administration of justice and was therefore unconstitutional.

The court heard that he brought judicial review proceedings arising out of his summary dismissal from his job at the store, where he had worked at between 2012 and 2016.

The matter went before an adjudications officer at the Workplace Relations Commission, which made certain findings. Those findings were overturned after leave was granted in judicial proceedings he took against the WRC; however, the constitutional aspect of his action proceeded to be heard and determined by the High Court.

The State, which opposed the appeal, accepted the treatment of Zaleswki’s complaint breached his fair procedure rights but disputed the overall process amounts to an unconstitutional administration of justice.

A finding that the procedures involve the administration of justice would have “immense” implications for other decision-making bodies outside the courts process, the state represented by Paul Gallagher SC argued.

Zalewski, North Strand Road, Dublin 3, represented by Peter Ward SC and Cian Ferriter SC, had argued the procedures under the 2015 Act for dealing with unfair dismissal claims, and claims for payment in lieu of notice, amounts to the “administration of justice” under Article 34 of the Constitution were properly reserved to judges.

The 2015 Act was introduced after abolition of the previous Employment Appeals Tribunal system for adjudicating claims under the Unfair Dismissal and Payment of Wages Acts.

An adjudication officer in 2016 dismissed Zalewski’s complaint of being unfairly dismissed from his job as assistant manager of the Costcutter Store on Dublin’s North Strand Road, where he had worked for four years.

His appeal was against last year’s finding by the High Cout that while powers exercised by adjudication officers and the Labour Court under the 2015 Act exhibit “many characteristics” of the administration of justice, they lack an essential characteristic, a decision maker’s ability to enforce its decisions, because an application must be made to a District Court to enforce.

Arising from the State’s acceptance the dismissal of Zalewski’s complaint was invalid, Justice Garrett Simons directed it should be decided by a different adjudication officer.

The judgement was delivered electronically and the Supreme Court will deal with any issue arising out of its decision later this month.

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    Mute ⚡ Seánie ⚡
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    Sep 24th 2018, 8:58 PM

    Nanny state. Everything has a knock on effect. Move on.

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    Mute EillieEs
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    Sep 24th 2018, 9:12 PM

    @⚡ Seánie ⚡: it would be a nanny state if there was a prohibition on alcohol. Advising people of the dangers does not prevent anyone from ignoring the advice.

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    Mute Barry Somers
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    Sep 24th 2018, 9:32 PM

    @⚡ Seánie ⚡: nanny state eh?
    The same line trotted out when people said smoking caused cancer and the industry denied any such link even though they themselves proved the link decades ago.

    Next time you read a warning label on any dangerous product, be it weed killer, cigarettes or whatever I suppose you can feel smug in your thoughts that it’s a nanny state thing.

    It’s funny, when the government tries to even warn people about the dangers of something simple like this it’s accused of being a nanny state, but when they don’t regulate something enough they are accused of doing nothing.

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    Mute ⚡ Seánie ⚡
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    Sep 24th 2018, 10:00 PM

    @Barry Somers: You know using week killer it’s dangerous. You don’t have to read the label to know that. You know smoking is bad for you. You don’t have to consult with a doctor to know that. You know alcohol is bad for you. You don’t need a label for that.

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    Mute Brian Ó Dálaigh
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    Sep 24th 2018, 10:10 PM

    @⚡ Seánie ⚡: Say that to Dewayne Johnson.

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    Mute Niall Brew
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    Sep 24th 2018, 11:35 PM

    @Barry Somers: so where’s the warnings on highly processed foods? Sure pints and pubs will need warnings too. Or is it just selective cherry picking?

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    Mute Tony O'Regan
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    Sep 25th 2018, 7:09 AM

    @EillieEs: But like, nearly everything gives you cancer, should all red meat have cancer warning? And if we do push to introduce this it should be at a EU level, otherwise we’re just killing our exports or making it more expensive and complicated by doubling labels, etc that need to go out. I mean there are studies that link milk and cancer. Exactly what increase is caused by what consumption of alcohol? Alcohol is bad for you, we all know that, but it’s not as bad as cigarettes or other toxins when drank sensibly IMO. Also per the women’s health, does that mean there should be a label advising women to drink less than men as they’re more in danger? “Are the profits of the alcohol industry more important now more than women’s health,” Don’t think you’ll get much support for that suggestion…

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    Mute Ireland Unlocked
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    Sep 25th 2018, 10:23 AM

    @Barry Somers: Yup and there is a question here of potential legal liability for the drink industry and also the State in not alone not informing consumers of known and significant risk but now actively concealing that information. Look at the recent Monsanto case where the science actually favoured the company and they still lost.

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    Mute David Connolly
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    Sep 24th 2018, 9:02 PM

    You might as well put it on a packet of ham as well, sometimes you just have to say stop, it’s not going to achieve anything, smoking reduction has only work due to vaping not because we put a warning on a packet.

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    Mute Barry Somers
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    Sep 24th 2018, 9:34 PM

    @David Connolly: sorry David but the stats don’t backup your mistaken belief, smoking deduction had started a long ago and it was because of high prices, the smoking ban, education and smoking changes.

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    Mute Dermot Foley
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    Sep 24th 2018, 9:52 PM

    @David Connolly: well technically you’re correct of course, but maybe just red meat seeing as it has been classed the same as tobacco as a type one carcinogen. Well done sir. Well done.

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    Mute Ireland Unlocked
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    Sep 25th 2018, 9:35 AM

    @David Connolly:
    1. Only certain forms of meat are carcinogenic, all alcohol is.
    2. The carcinogenic effect of alcohol is orders of magnitude larger than that from meat according to liver specialist Frank Murray during the radio debate referred to here.
    3. Meat is associated with one form of cancer, bowel, alcohol is associated with 7 different forms, most salient here, breast cancer.
    4. This is the Pubic Heath Alcohol Bill, not the Public Health Meat Bill. ‘Whataboutery’ is a pretty weak argument.

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    Mute Link
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    Sep 24th 2018, 9:01 PM

    I think that comment is an affront to those who have suffered from cancer themselves, or had a loved one endure that terrible affliction. To use the suffering and misery of that horrific disease to further your own agenda is an absolute disgrace.

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    Mute Declan Moran
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    Sep 24th 2018, 9:06 PM

    @Link: well said Link. I think this is a disgraceful decision. More should be done to warn people. Anything we can do to help even one person from being strick down with cancer has to be encouraged and anyone whom thinks otherwise is being totally ignorant and reckless

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    Mute Zmeevo Libe
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    Sep 24th 2018, 11:27 PM

    I have suffered from cancer (not drinking related), and the last thing I need is a remainder about it on every bottle of wine I see!

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    Mute Paula T Nolan
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    Sep 25th 2018, 7:36 AM

    @Zmeevo Libe: Couldn’t agree more. Next it’ll be on every item containing sugar.

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    Mute Ireland Unlocked
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    Sep 25th 2018, 10:09 AM

    @Zmeevo Libe: Sorry to hear about your history but it doesn’t entitle you to have information concealed that could help others avoid the same fate or worse from knowing the risks they are taking.

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    Mute Zmeevo Libe
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    Sep 25th 2018, 11:13 PM

    @Ireland Unlocked: Her claim is that not having a warning is an insult to me, not that it is preventing others from obtaining the information. Actually, I had cancer that is common among smokers and drinkers. I am neither, so my diagnosis was vastly delayed because I wasn’t “typical”.

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    Mute Sean
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    Sep 24th 2018, 9:33 PM

    Men get alcohol related cancers too. I don’t follow the logic that removing the cancer warning shows a marked indifference to women’s health. There is no need to bring gender into every argument. It is getting quite tiring at this stage. Besides there are quite a lot of female politicians in the Government who were able to agitate quite effectively on other recent issues. Its not another sinister plot by the patriarchy.

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    Mute Ireland Unlocked
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    Sep 25th 2018, 9:57 AM

    @Sean: Breast cancer is one of the most common alcohol attributable cancers. 1 glass per day of wine increases a woman’s chance of developing it 9%, 13% if it’s in her family. We’re currently in the midst of a scandal where cancer related information was withheld from women and now the government appears to be doing that again while there is tragically low awareness among women of the cancer risk – according to the Healthy Ireland survey in 2016, only 27% of women 25 or over were aware of the alcohol breast cancer link, 16% of those under 25.

    Women are most certainly getting shortchanged here.

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    Mute Sean
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    Sep 25th 2018, 10:58 AM

    @Ireland Unlocked: 1 glass of wine per day sounds like a lot what with glasses being the size of goldfish bowls these days. I think if you were drinking that much you’d have a fair idea it wasn’t good for you.

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    Mute Ireland Unlocked
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    Sep 25th 2018, 12:31 PM

    @Sean: Liver specialist Frank Murray specifically talks about the number of people he deals with that had no clue the amount they were drinking was a problem and are taken by complete surprise by their illness.

    https://www.independent.ie/life/health-wellbeing/surge-in-irish-women-with-liver-disease-caused-by-alcohol-34932021.html

    One of the big problems here is that we have a totally distorted view about what ‘a lot’ of alcohol is, a distortion the drink industry never addresses in it’s supposed harm reduction efforts and yup, the glasses are part of the problem.

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    Mute Bart
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    Sep 24th 2018, 10:01 PM

    You don’t live any longer if you give up, smoking, drinking and sex. It just feels longer

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    Mute ed w
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    Sep 24th 2018, 10:19 PM

    Surely barbecues. Barbecue sauce. Crisps. Bread when toasted where would you like it to end ?

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    Mute Ireland Unlocked
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    Sep 25th 2018, 10:19 AM

    @ed w: Tell me, which one of those results in 900 cancer diagnoses and 500 deaths per year? Alcohol is order of magnitudes more risky.

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    Mute Siobhán Ni Mhurchú
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    Sep 24th 2018, 9:08 PM

    While I don’t think it would be made a difference , th3y were able to put a warning and a pic on a pack of cigarettes without a problem. I also don’t see how it’s insulting to those who suffer from cancer.

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    Mute Ireland Unlocked
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    Sep 25th 2018, 9:47 AM

    @Siobhán Ni Mhurchú: I think she might mean that it diminishes the seriousness of cancer and by extension, those who develop it if it isn’t given more priority than the private vested interests of drink manufacturers by the State.

    I think also that for most people with cancer, it must be frustrating to see the State actively concealing this information particularly when there is such a low awareness level (just 27% of women over 25 are aware of the link between breast cancer and alcohol, 16% of those under 25), and all this in the context of recent controversies where health information on cancer was withheld from women.

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    Mute oppenheimersghost
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    Sep 24th 2018, 9:18 PM

    Bernays hired women to march while smoking their “torches of freedom” in the Easter Sunday Parade of 1929 which was a significant moment for fighting social barriers for women smokers. Now its seen as ”cool”

    Women comatose drunk is a common sight now, as well as those puking their guts up on a Saturday night. teens etc drunk out of their minds? I don’t have to start on men and booze. have people lost all self respect?

    Irish people who make excuses for their abuse of alcohol are in denial and easily brainwashed by the likes of Diageo and slick marketing

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    Mute Bernie Roche
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    Sep 24th 2018, 10:38 PM

    @oppenheimersghost: People were getting out of their minds drunk on a very regular basis around here well before the advent of marketing

    33
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    Mute Ireland Unlocked
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    Sep 25th 2018, 9:39 AM

    @Bernie Roche: Consumption of alcohol in Ireland has almost trebled since the 60′s.

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    Mute Psyarron
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    Sep 24th 2018, 9:24 PM

    Politicians have to pretend to care about everyone, choosing the right things to say at the right time. To answer the question, yes of course the profits of the drinks industry are more important than woman’s health, everyone’s health! You have to be a certain type of person to be a politician, a self centred narcissist show boater!

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    Mute Shane
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    Sep 24th 2018, 11:35 PM

    It would seem Harris is back tracking on previous commitments- caving into the powerful drinks lobby. Such impressive leadership!

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    Mute John Ryan
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    Sep 24th 2018, 10:46 PM

    Lots of people on this site seem to get very touchy anytime drinking or alcohol is mentioned in a negative light… I wonder why ? ;-)

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    Mute David
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    Sep 24th 2018, 10:51 PM

    @John Ryan: Because we love the sauce!!

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    Mute Anto Harris
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    Sep 25th 2018, 7:29 AM

    I wish Black and her ilk would touch on and mind their own business. Yes there is an issue with excessive alcohol consumption in Ireland but this Bill is not the way to tackle it. The revenue from the increased prices will go straight to the retailer in profits and the Govt in increased revenue. Why not use the extra revenue to fund alcohol treatment centres, tackling the problem proactively instead of profiteering.

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    Mute Costello Trevor
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    Sep 24th 2018, 11:49 PM

    The warning should be on meat too..

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    Mute Anthony Clark
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    Sep 25th 2018, 3:11 AM

    @Costello Trevor: plus cannot forget games consoles – seriously – the new Neo Geo mini has a California “May cause cancer” on the back – I’m not joking!

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    Mute Frank Lee
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    Sep 24th 2018, 11:42 PM

    Oh shut up…bloody nanny state I don’t know where to start. Coffee causes cancer…bacon causes cancer, burned toast causes cancer. Why in this republic is the government wasting so much time on trying to kill life’s little pleasures and not on the great big honking housing crisis outside their door

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    Mute Josh Hanners
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    Sep 24th 2018, 11:23 PM

    Powerful Drink Lobby pressuring the government.

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    Mute Big bad bull
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    Sep 25th 2018, 12:48 AM

    Some size of a brown envelope id guess…..

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    Mute Costello Trevor
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    Sep 24th 2018, 11:53 PM

    It would be great if it was on certain foods too…

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    Mute lapsy pa
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    Sep 25th 2018, 3:25 AM

    Can’t stick a label on poverty !

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    Mute Reuben Gray
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    Sep 25th 2018, 9:44 AM

    I demand a giant permanent warning be erected in the sky over Ireland with the words “Causes Cancer” and a giant movable arrow which always points to the sun. Only then will we be safe.

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    Mute Slim Shady
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    Sep 25th 2018, 6:58 AM

    They should have warnings on alcohol that drinking it will make you do stupid things.

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    Mute Rb1kan
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    Sep 25th 2018, 9:31 AM

    I’m affected by cancer and this td is talking out of her behind

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    Mute Ireland Unlocked
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    Sep 25th 2018, 10:28 AM

    @Rb1kan:She’s a Senator.

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    Mute anthony o cathain
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    Sep 25th 2018, 12:07 PM

    USA age 21. Medical age 24. Over 55s have to cease. Health warnings (like cigs) 35 yrs too late. I only drink if I know AND like everyone in the room. My friends never shut up about drink. New evidence says no to drink at any time. Good riddance

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    Mute Chemical Brothers
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    Sep 25th 2018, 8:36 AM

    #IrishAirCorps CAUSES CANCER

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