FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : NATIONAL CONCERT HALL (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Grier Worker Member: Mr Nash |
1. Appeal against Rights Commissioner's Recommendation IR18095/04/DI.
BACKGROUND:
2. The issue involves a claim by the worker who was employed by the NCH in September, 2002. She was not issued with a contract of employment until April 2004. She refused to sign the contract as she claims that she was recruited as a full time employee by the NCH. The NCH maintains that she was recruited as a part-time casual employee. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 1st October, 2004, the Rights Commissioner issued his recommendation as follows:
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“This dispute directly results from the fact that the claimant was never issued with a contract of employment when she commenced work with NCH in September, 2002. However, it is clear that from the date she commenced employment she was rostered and worked hours applicable to those of a part-time casual worker. In addition, her entitlements e.g. the right to refuse work, no sick pay entitlements, were also those of a part-time casual employee.
Having fully considered the submissions of the parties I find against the claimant's claimthat she be confirmed as a full-time employee with a right to work 39 hours per week"
On the 1st November, 2004 the Union appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 11th February, 2005, 2005.
(The claimant was named in the Rights Commissioners Recommendation).
UNION'S ARGUMENTS:
3.1 Following an interview at the NCH the worker was of the clear understanding that this employment was full-time i.e 39 hours plus per week.
2. Following commencement of employment she requested her contract and conditions of employment on a number of occasions, she also requested 39 hours as discussed at her interview. These were not provided.
3. Following a reduction of hours in March, 2003 due to seasonal factors the claimant requested a letter from management requesting details of her employment situation for the Department of Social Services. A letter was issued dated 24th March, 2003 stating "the claimant has been employed in the N.C.H. as a Box office Clerk for 39 hours per week".
4. In September the full-time staff were informed an additional full-time employee had been recruited. Following commencement of her employment as a full-time Box Office Clerk, as she understood it, was reasonable for everyone to assume that she was that newly recruited full-time employee.
MANAGEMENT'S ARGUMENTS:
4.1 The NCH's recruitment practice is broadly in line with that of the public sector, (i.e. all full time positions must be advertised externally), the positions of part-time box office clerk positions filled in September 2002 were not advertised externally in line with local practices.
2. At no time during the interview was the claimant offered or given the impression that she was being hired for a full time position. Other applicants hired at the same time were issued with part-time contract identical to those issued to the claimant.
3. Management accepts that they should have issued a contract of employment at the time the claimant commenced employment, The Company argues that there could be no confusion as to the reality of the nature of the employment contract for the following reasons:
- The worker's hours and rostering for the yearly period from week ending 1st October, 2002 to September 2003 average 22 hours per week rostering, and reflect those of a part-time employee.
- The claimant worked on Sundays, she would not have been scheduled to do this if she had been hired as a full-time employee.
4. The claimant worked for seven months under the terms and conditions of a part-time employee before mentioning to Management that she understood she had been offered a full time position.
DECISION:
Having carefully considered the oral and written submissions made by the parties, the Court is satisfied that the nature of the appellant's employment was part-time and not full time. The Court concurs with the findings and conclusion of the Rights Commissioner and upholds his recommendation. Consequently, the appeal fails.
The Court recommends that management's administrative procedures should be re-examined to provide employees with adequate notice and clear details of their roster.
Signed on behalf of the Labour Court
Caroline Jenkinson
21st_February, 2005______________________
JBDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Jackie Byrne, Court Secretary.