FULL RECOMMENDATION
SECTION 17(1), PROTECTION OF EMPLOYEES (PART-TIME WORK) ACT, 2001 PARTIES : ESB - AND - JOE ENGLISH (REPRESENTED BY JOHN A. TOBIN SOLICITORS) DIVISION : Chairman: Mr McGee Employer Member: Mr Grier Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioners Decision PT34487/05/MR.
BACKGROUND:
2. The appeal concerns a worker who was employed as a fitter on a seasonal basis with the Company from 1981 to 2004. In 1988 temporary fitters were offered redundancy or as an alternative to work on future seasonal fixed term contracts as and when they arose. The worker decided to avail of seasonal work.
The worker lodged a claim for redundancy in a letter dated October 2001. Following negotiation the claim was settled in 2004 and a payment was made by the Company in full and final settlement.
The worker brought a complaint to a Rights Commissioner under the Protection of Employees (Part-Time Work) Act, 2001, claiming that he was treated in a less favourable manner than comparable full-time fitters. The Rights Commissioner issued his decision on the 30th January, 2006, as follows:-
"In accordance with Section 16(2) of the Act, I hereby declare that this complaint was not well founded."
On the 10th March, 2006, the worker appealed the Decision to the Labour Court, in accordance with Section 17(1) of the Protection of Employees (Part-time Work) Act, 2001. The Labour Court heard the appeal on the 14th June, 2006.
WORKER'S ARGUMENTS:
3. 1.The worker claims that the issue of retrospectivity of the Act is a moot point as at all material times he was an employee of the Company's albeit as an employee on temporary lay-off.
2. The worker contends that he was at all times a part-time worker within the meaning of the Act.
3. The worker contends that he was treated in a less favourable manner than a comparable full-time employee.
COMPANY'S ARGUMENTS:
4. 1.The Company reached agreement with the worker through his Union in relation to his redundancy claim. He signed a discharge form stating that the amount received was in full and final settlement of all claims.
2. The worker is not a Part-time worker under the definitions of the Protection of Employees (Part-time Work) Act, 2001.
3. The Protection of Employees (Part-time Work) Act, 2001 does not apply retrospectively to the worker as his periods of service with the Company predated the Act.
DETERMINATION:
Having considered the submissions of the parties, the Court finds that the Receipt of Discharge form signed by the complainant was done in the full knowledge that he was relinquishing all rights in relation to his employment with the active participation of his Trade Union and at his own request. It also contained a statement to the effect that he had been advised that it was open to him to seek legal advice in relation to the matter, but he had declined to do so. The Court can find no evidence that the complainant acted under a misapprehension in relation to this matter. He was specifically aware of his rights, if any as a part time worker and acted upon that knowledge. Accordingly the Court is satisfied that the Claimant gave a free and informed consent to settle all and any claims which he may have had against the respondent under the Act of 2003.
In view of the foregoing, the Court does not have to express an opinion as to whether the worker was in fact a part-time worker within the meaning of the Act or whether the claim was brought in time.
Given the above, the Court is satisfied that the decision of the Rights Commissioner, under Section 16(2)(a) of the Act, that the case is not well founded, is correct.
The Court therefore affirms the decision of the Rights Commissioner and dismisses the appeal.
Signed on behalf of the Labour Court
Raymond McGee
28th August, 2006______________________
MG.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.