FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : UNIVERSITY COLLEGE DUBLIN - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Nash |
1. Denied promotion, on appeal, to Associate Professor involving 1. Double jeopardy 2. Failure of duty of care by UCD in respect of appeal 3. Perception if not actually of bias by UCD
BACKGROUND:
2. The Union's claim before the Court is that its member was denied promotion on appeal to the position of Associate Professor. The worker concerned applied for promotion in 2003 and was unsuccessful. He appealed the decision on a number of grounds. As part of the appeal an external referee's assessment was sought. The worker's appeal failed. The Union contend that the appeal was flawed in a number of ways. It's member faced double jeopardy as a member of the original interview panel, whom the worker was critical of in the appeal, sat in judgement on the re-assessment. There was a failure in the duty of care owed to the worker as there were serious errors in the external referee's assessment. Taking these factors into account, it is the Union's belief that there was a perceived if not actual bias against its member.
The University reject the Union's claim. It is the University's position that any claim or dispute that existed between the parties was resolved by way of appeal, which was provided to assist the worker. The worker was treated throughout the process of promotion and appeal fairly and appropriately under the fair procedures applied without bias and in accordance with criteria published to all candidates.
The University raised a preliminary point concerning the Court's jurisdiction in this case.
On the 29th July, 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 24th October, 2008.
RECOMMENDATION:
At the commencement of this hearing the representative of the University 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 had retired from his post with the College on 5th October, 2006, having reached his normal retirement age under the College’s pension scheme. The Claimant was employed by the College for a further period, up to 31st August 2007. Since 5th November 2007 he has been contracted to work as an Evaluator with the European Commission, this contract is due to expire in November 2009.
The Court can only investigate a dispute which is a trade dispute within the statutory meaning of that term. The relevant definition of that term 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 section 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, Forfás and A Worker, as follows:-
“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.”
The advice of the Attorney was adopted and applied by this Court in a number of cases in which the claimant was retired. The most recent example of such a case is contained in Recommendation LCR19310,University College Dublin v A Worker. In that case, which was similar to the present case, the Claimant was a retired legal academic.
The Court must consider in the context of a case in which the Claimant is retired from the employment to which the dispute relates but has taken up other work post his retirement whether he can bring a dispute with his former employer before the Court pursuant to section 20(1) of the Industrial Relations Act 1969.
The dispute to which he is a party was referred to the Court on 24th July 2008. The dispute had been referred to the Rights Commissioner service of the LRC on 22nd April 2008, however, the College declined to attend.
The Supreme Court inGoulding Chemicals v Bolger [1977] IR 211expressly adopted the view that the expression “worker” referred to a person’s occupation or way of life rather than to their actual employment status at the time the dispute arose.O’Higgins CJin rejecting a submission to the effect that persons who had been lawfully made redundant were not workmen within the statutory meaning, stated:
- “It is true that the definition of “workmen” who may engage in a trade dispute is “all persons employed in trade or industry". In my view “employed” here does not mean in actual present employment but rather refers to the occupation or way of life of those who are to be regarded as “workmen”. Any other meaning could have the effect of withdrawing the protection of the Act from workmen by the simple device of dismissing them and this would have its maximum effect at a time of general unemployment.
O’Higgins CJ went on citeFerguson v O’Gorman[1937] IR 620where Meredith J. contended that a person who was unemployed could come within the definition “all persons employed in trade or industry”.Meredith J. interpreted the expression as referring to a person’s occupation or way of life rather than to their actual employment status at the time the dispute arose.
The Court therefore, is of the view that the occupation or way of life of a person who is retired is that of pensioner or retiree and not that of a worker. It would appear to follow that since a worker who is temporarily out of work does not cease to be a worker, a pensioner who takes on temporary or occasional work does not cease to be a pensioner. There is added force in this conclusion where the party for which such a worker is undertaking such temporary post-retirement work is unconnected to the dispute which the pensioner wishes to pursue with respect to their former employer.
The Claimant’s principal way of life is that of a pensioner. To enhance his pension earnings on retirement from UCD, he has secured some work elsewhere. However, the Court is of the view that work does not alter his primary status as a retiree.
Having considered the matter carefully the Court has decided that it must adopt the same approach as was adopted in the Forfas and the previous UCD cases. The dispute undoubtedly arose prior to the Claimant's retirement. However it was not referred to the Court until 24th July 2008, some twenty one months after his retirement. Even if the Court were to take the date on which the dispute was referred to the LRC on 22nd April 2008, that too was after the Claimant's retirement and indeed after his extended employment with that employer.
The Court cannot actultra viresits statutory powers. Accordingly, acting on the advices receivedfrom the Attorney General on this point, the Court must decline to issue a Recommendation in this case.
Signed on behalf of the Labour Court
Caroline Jenkinson
11th December,2008______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to David P Noonan, Court Secretary.