FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : UNIVERSITY COLLEGE DUBLIN - AND - A WORKER (REPRESENTED BY IFUT) DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Failure to promote to Assoc Professor because of application of unfair procedures, bias & in breach of UCD's own statutes
BACKGROUND:
2. The Worker applied for promotion within the College in 2002/2003. The Faculty Review Panel (FRP) reviewed his application. The Worker was not successful in having his application approved to the University Promotion Board (UPB). It is the Union's argument that the FRP approved the Worker's application for promotion to the UPB on previous occasions. On this occasion only one name was put forward to the UPB, where previously more than one had been. The Worker appealed against the decision but was informed there was no appeals process. The Company's position is that following the implementation of Labour Court Recommendation No. 18192 the worker's application was reviewed under an appeal's process and was unsuccessful. The Union argue that the appeals process was flawed.
On the 19th May, 2008 the Union referred the issue to the Labour Court in accordance with Section 20(1) of the industrial Relations Act 1969. A Labour Court hearing took place on the 24th July, 2008.
UNION'S ARGUMENTS:
3. 1 The report from the Ad Hoc Committee of the University Committee on Academic Appointments Tenure and Promotions was completely unacceptable. They wrongly treated the application more like a new application rather than an appeal against an earlier outcome.
2 The report gave no proper weight to the Worker's achievements and publications while at the College. It also did not give proper weight to the international recognition of his work. The report should have compared the Worker to the other candidate who was promoted.
COMPANY'S ARGUMENTS:
4. 1 The College believe that the Worker was treated fairly and consistently in the context of procedural compliance both for his original application for promotion to the post of associate Professor and the subsequent appeal.
2 The College believe that the appeal allowed to the Worker having been fairly determined, concludes the matter and there are no grounds available to the applicant to dispute the same.
RECOMMENDATION:
At the commencement of this hearing the representative of the College submitted that the Court lacked jurisdiction to investigate this dispute because the Claimant, on whose behalf the claim was brought, was not a worker within the meaning of the Industrial Relations Acts 1946-2004.
That submission was based on the fact that the Claimant retired from his post with the College on 6th October, 2007. The dispute to which he is a party was referred to the Court on 5th May 2008. The dispute had previously been referred to the Rights Commissioner service of the LRC on 23rd October 2007.
The Court can only investigate a dispute which is a trade dispute within the statutory meaning of that term. The relevant definition of that terms is to be found at s 3 of the Industrial Relations Act 1946 as follows:-
"the expression 'trade dispute' means any dispute or difference between employers and workers or between workers and workers connected with the employment or non-employment, or the terms of the employment, or with the conditions of employment, of any person;"
It should be noted that in order for a dispute to be a trade dispute it must involve a "worker". The term "worker" is defined for present purposes by s.23 of the Industrial Relations Act 1990, as follows:-
"In the Industrial Relations Acts, 1946 to 1976, and this Part, "worker" means any person aged 15 years or more who has entered into or works under a contract with an employer, whether the contract be for manual labour, clerical work or otherwise, whether it be expressed or implied, oral or in writing, and whether it be a contract of service or of apprenticeship or a contract personally to execute any work or labour including, in particular, a psychiatric nurse employed by a health board and any person designated for the time being under subsection (3) but does not include-
(a) a person who is employed by or under the State
(b) a teacher in a secondary school
(c) a teacher in a national school
(d) an officer of a local authority
(e) an officer of a vocational education committee, or
(f) an officer of a school attendance committee."
This Court previously considered the question of whether a dispute involving a person who is retired from the workforce is capable of constituting a trade dispute within the meaning of the Industrial Relations Acts 1946-2004. In 1974 and again in 2001 the Court sought and obtained advice from the Attorney General on this question. On both occasions the import of the advice was that a person who is retired (as opposed to temporarily unemployed) cannot be regarded as a worker and cannot be party to a trade dispute capable of investigation by the Court. The position of the Court on that point was set out in Recommendation LCR16970, Forfas and A Worker as follow:-
The Court was informed by the respondents that they had discussed the case with the Department of Enterprise, Trade and Employment, the Department of Finance, and the Attorney General.
They informed the Court that the Attorney General had advised that the Labour Court had no jurisdiction to deal with this case. There was also a dispute on whether the Labour Relations Commission had the employer's agreement to refer the case to the Labour Court.
The Court adjourned the hearing to seek the Attorney General's advice as to whether it had jurisdiction to hear the claimant's case.
The Court has now been advised that it is "entitled to investigate a matter which arose prior to an individual's retirement and which was referred to the Labour Relations Commission or Labour Courtpriorto the individual's retirement."
In accepting this decision, the Court has a major concern that a large number of people will have no redress in situations of dispute between themselves and their previous employer, even in circumstances where commitments made are not subsequently honoured.
The Court, therefore, strongly recommends that a mechanism be put in place to address situations as outlined above.
Having considered the matter carefully the Court has reluctantly come to the conclusion that it must adopt the same approach as was adopted in the Forfas case. The dispute undoubtedly arose prior to the Claimant's retirement. However it was not referred to the Court until May 2008, some seven months after his retirement. Even if the Court were to take the date on which the dispute was referred to the LRC, that too was after the Claimant's retirement.
It is abundantly clear that the Claimant has a continuing grievance arising from his employment with the college. The requirements of good employment practice dictate that he should have a facility by which that grievance can be examined on its merits. However the Court cannot act ultra vires its statutory powers. Accordingly, acting on the advices received from the Attorney General on this point, the Court must decline to issue a recommendation in this case.
The Court would suggest, without so recommending, that the parties should agree an appropriate mechanism by which the Claimant's grievance can be addressed, on an ad hoc basis if necessary.
Signed on behalf of the Labour Court
Kevin Duffy
12th August, 2008______________________
DNChairman
NOTE
Enquiries concerning this Recommendation should be addressed to David P Noonan, Court Secretary.