FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : UNIVERSITY COLLEGE CORK (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - MARY KEOHANE (REPRESENTED BY W. ST. CLAIR RICE & COMPANY) DIVISION : Chairman: Mr Duffy Employer Member: Mr Keogh Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner's Decision WT3049/00/JH.
BACKGROUND:
2. The claimant was employed by the respondent in a part-time capacity from 1990 until she resigned in 1998. From 1995, she worked as a part-time MA lecturer in the Education Department of the respondent. The claimant complained that she suffered various forms of penalisation, culminating in her forced resignation, by reason of having claimed holiday pay pursuant to the terms of the Organisation of Working Time Act 1997 (the Act). At first instance, the Rights Commissioner decided that the complaint was not well founded. It is against that decision that the claimant appealed to the Court.
The material facts, as admitted or as found by the Court are as follows:-
Holiday Pay Claim
1.The part-time teaching staff at the University were originally paid an all inclusive rate and did not receive payments in respect of annual leave or public holidays.
2.In 1996 the claimant who was at that time the elected spokesperson for the part-time teaching staff, raised the issues of holiday pay with the college authorities. It was the claimant's contention at that, that part-time staff were entitled to holiday under the Worker Protection (Regular Part-Time Employees) Act 1991.
3.The dispute was not resolved at that stage and the claimant's Trade Union (IFUT) were consulted and became involved in July 1997. Correspondence between the Union and the respondent ensued on the matter.
4.In September 1997 the Act (in so far as is relevant to the present case) became operative. Having made further attempts to resolve the dispute, directly, IFUT wrote to the respondent on the 10th June 1998 specifically requesting it to apply the provisions of Section 19 (1) of the Act to its part-time staff. Having failed to obtain confirmation that the respondent would apply the terms of the Act as requested, IFUT referred a complaint to a Rights Commissioner on behalf of its members, including the claimant.
5.The hearing of the Union's complaint by a Rights Commissioner was fixed for 17th September 1998. On 24th August the respondent wrote to the Union conceding its claim and asking that the hearing be cancelled. The hearing did not proceed and it appears that as far as the Union was concerned the dispute was resolve.
Alleged Demotion
6.In the summer of 1998 a part-time lecturer in Maths Methodology retired. There appeared to have been an expectation that the claimant would succeed him. By letter dated 31st August 1998 the claimant wrote to the Professor of Education expressing reluctance to take over the role of the previous incumbent in the Maths Methodology post single handed. By letter of 14th September 1998 the Professor of Education wrote to the claimant advising her that a new part-time teacher had been recruited to take on the role of the retired teacher.
7.It appears that the claimant had been taking Maths Methodology classes from 1st September 1998. On being advised that another teacher had been employed to teach this subject the claimant expressed her surprise at not having been offered the post. The claimant subsequently resigned from her employment and claimed that the failure of the respondent to offer her the post in Maths Methodology was a demotion amounting to constructive dismissal.
8.The claimant then instituted the present proceedings pursuant to Section 26(1) of the Act alleging that the decision of the Respondents not to offer her the post in Maths Methodology was a penalisation within the meaning of the Section.
Conclusions of the Court
Section 26 (1) of the Act provides as follows:
"An employer shall not penalise an employee for having in good faith opposed by lawful means an act which is unlawful under this Act."
In order to make out her complaint of penalisation it is necessary for the complainant to establish a causal link between her activities in seeking to have section 19 of the Act applied by the respondent and some detriment which she suffered in her employment . Such a link can be established by reference to particular facts or by inference from all of the surrounding circumstances. The activities alleged to have given rise to the detriment suffered must, however, relate to the claimant having opposed an act which is unlawful under the Act of 1997.
In her submission to the Court the claimant referred to a number of incidents, which impacted adversely on her conditions of employment, which allegedly occurred at various times between 1996 and 1997. She claims that these incidents constituted penalisation and were in response to her activity in seeking to address the issue of holiday pay. Most of those occurrences relate to periods of time prior to the enactment of the Act. The Act does not have retrospective effect and these incidents could not, on that account alone, ground a complaint under Section 26.
With regard to the decision of the respondent not to appoint the claimant to the vacant post in maths methodology, the Court cannot see any connection between this decision and the activities of the claimant in pursing a claim under the Act. Even if this was a demotion, and the Court does not accept that it was, the Professor of Education was responding to the expressed reluctance of the claimant to accept the post if offered to her.
DETERMINATION:
For the reasons set out above, the Court determines that the complaint herein is not well founded. The decision of the Rights Commissioner is affirmed and the appeal is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
28th November, 2001______________________
LW/BRDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Larry Wisely, Court Secretary.