FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : KERRY COUNTY COUNCIL (REPRESENTED BY LOCAL GOVERNMENT MANAGEMENT SERVICES BOARD - AND - A WORKER (REPRESENTED BY O' KEEFE O' SHEA O' CONNOR SOLICITORS) DIVISION : Chairman: Mr McGee Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioner's Recommendation IR-36214/05/MR.
BACKGROUND:
2. The worker concerned is a part-time farmer and has worked occasionally for Kerry County Council between 1973 and 1984. He has not worked for the Council since 1984. In 1995 and 1997 the Council placed advertisements for the position of General Operative. The worker did not apply as he did not see the advertisements. In 1995 the person who got the job was not a former employee nor was he on a panel. The worker concerned felt that as a former employee he should have been given the opportunity of employment. In July 2000 the worker attended for interview and was placed 4th on a panel. The Council were not in a position to call the worker during the lifetime of the panel.
The dispute was referred to a Rights Commissioner for investigation and recommendation. His recommendation issued on the 9th November, 2005, as follows:-
“In the circumstances, I recommend that the worker should accept that he is not an employee of Kerry County Council’s for the purposes of the Industrial Relations Acts, 1969 and 1990, and that accordingly there is no legal basis for a Rights Commissioner to issue a Recommendation regarding the issues raised by him and on his behalf, as above.”
(The Worker was named in the Rights Commissioner’s Recommendation).
The worker appealed the Recommendation to the Labour Court on the 8th December, 2005, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 22nd September, 2006, the earliest date suitable to the parties.
WORKER'S ARGUMENTS:
3. 1. Following an earlier Rights Commissioner hearing in 1983 Management gave assurances and a commitment regarding the worker's future employment with the Council. The Worker is of the view that the assurances given at that time were simply to assuage him but with no intention of employing him again.
2. The Worker received copies of correspondence, following a Freedom of Information Act request, which would appear to indicate that the Council had decided not to employ him again.
3. The Worker has acted openly and honestly in this matter. Had he doubted the Council's integrity in 1983 he could have adopted a different course but he didn't.
MANAGEMENT'S ARGUMENTS:
4. 1. The Council fully complied with the findings of the Rights Commissioner in 1983. It offered the Worker employment during 1984 when it was available within the year covered by the findings. The findings do not give rise to an entitlement to employment in perpetuity.
2. The memo referred to was written by an Area Engineer who had no responsibility for employing personnel.
3. The Worker is not a worker for the purposes of the Industrial Relations Acts; he does not have an employment relationship with the Council.
DECISION:
The Court has considered fully the issues arising in this case.
In the first instance, the Court is of the view that, taking the history of the case into account, as well as Section 23 of the Industrial Relations Act, 1990 the Claimant is a worker within the meaning of the Industrial Relations Acts, 1946-2004, in that he entered into a contract or contracts with the employer which he has for many years endeavoured to renew.
The Court further considers, given the 23-year history of the case and the correspondence, particularly that from the Council's Engineering Section, opened to the Court at the hearing, that the Claimant was unfairly treated and denied employment.
The Court accordingly recommends that the Claimant be offered first refusal on any seasonal work in the general Cahirciveen/Portmagee areas until the date of his reaching normal retirement age. If there is no work in those areas in any year, the Claimant should be offered any such work available in adjoining areas. He should, of course, be subject to all the normal procedures which apply in any employment.
The Council should also pay the Claimant €10,000 in respect of its failure to offer him work in the past.
The Court decides accordingly and overturns the Recommendation of the Rights Commissioner.
Signed on behalf of the Labour Court
Raymond McGee
13th October, 2006______________________
MG.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Madelon Geoghegan, Court Secretary.