FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : AN GAISCE - THE PRESIDENT'S AWARD/DEPARTMENT OF EDUCATION AND SCIENCE (REPRESENTED BY PETER SHANLEY B.L.) - AND - A NAMED CLAIMANT (REPRESENTED BY FRANCES MEENAN, B.L., AS INSTRUCTED BY BEAUCHAMPS SOLICITORS) DIVISION : Chairman: Mr McGee Employer Member: Mr Grier Worker Member: Ms Ni Mhurchu |
1. Compensation
BACKGROUND:
2. The claimant was employed as CEO of An Gaisce from 1985 until his retirement in December, 2006. In 1993 the claimant took a claim to the Labour Court in relation to his salary. In recommendation LCR14017 dated 26th March, 1993, the Court recommended that the claimant be put on the salary level (on a personal-to-holder basis) of an Assistant Secretary at the maximum of that scale. The recommendation was implemented by the An Gaisce/Department of Education and Science (An Gaisce/The Department). However, the claimant maintains that since 1995, An Gaisce /The Department has failed to pay him at the appropriate rate of pay. The claimant wrote to The Department in February, 2002, in relation to "split salary scales" and was told that there was no "split salary rate, it operates on the basis of PRSI contributions". Further correspondence took place between the parties over the next few years. The claimant referred his case to a Rights Commissioner in December, 2007, but as his employer objected to a Rights Commissioner's investigation he referred the issue to the Labour Court on the 10th April, 2008, in accordance with Section 20(1) of the Industrial Relations Act, 1969. His claim is as follows:
- a. the higher salary scale that is payable to all Assistant Secretaries who pay full rate class A PRSI with such pay increase (in excess of 5%) being backdated to the date of commencement.
b. such difference in pay in pensionable salary and accordingly additional employer contributions to the claimant's pension scheme with all necessary actuarial adjustments to include such contributions.
c. in addition to or alternatively adjustment of the claimant's pension scheme to reflect the pension entitlements of Assistant Secretaries or CEOs of non-commercial semi-state bodies (i.e. pro rata arrangement).
d. bonus comprising 20% of salary (at the higher level as claimed above) since commencement of the scheme for Assistant Secretaries in 2002.
e. loss of purchasing power of AVCs (which the claimant could have bought with the higher rate of pay, if it had been paid) (loss of 40% of tax efficient contributions).
f. Interest.
- A Labour Court hearing took place on the 25th June, 2008, and a resumed hearing on 13th November, 2008. At the hearing the issue of whether the Court had jurisdiction to hear the case was raised. The claimant agreed to be bound by the Court's recommendation.
EMPLOYER'S ARGUMENTS:
4. 1. The claimant is not a person who "works" under a contract of employment. He is a person who has ceased employment. The Labour Court has ruled in the past that it is only entitled to investigate a matter which arose prior to an individual's retirement and was referred to the Labour Relations Commission or the Court prior to that retirement. In the claimant's case his claim was referred to a Rights Commissioner and then the Court subsequent to retirement.
RECOMMENDATION:
In October 2007, the Claimant made various claims under the Industrial Relations Acts to the Rights Commissioner Service regarding his pay and consequently his pension following on-going discussions for some years. The Employer objected to a Rights Commissioner’s investigation and on 29th November, 2007, the matter was referred under Section 20(1) of the Industrial Relations Act, 1969 to the Labour Court.
At a Labour Court hearing on 25th June, 2008, it emerged that the Claimant had, in fact, retired in December 2006. The Court, mindful of previous cases, notably that involving Forfás and a Worker (LCR 16970, dated 8th November, 2001), sought submissions on the admissibility of the claim given the retired status of the Claimant.
At a resumed hearing on 13th November, 2008, the Claimant argued that:
(a) the claim was admissible because the matters at issue had arisen as a result of a previous recommendation of the Court (LCR 14019) and had been ongoing since that time and in particular since February, 2001.(b) While in the Forfás case the Court had accepted advice from the Attorney General that it was “entitled to investigate a matter which arose prior to an individual’s retirement and which was referred to the LRC or Labour Court prior to the individual’s retirement, otherwise the Court had no jurisdiction to deal with the case, it may be distinguished from the instant case because:--in this case, the matters at issue were before the Court prior to the individual’s retirement and the present dispute led directly from LCR 14019-the Court is not bound by an advice or opinion from the Attorney General, nor by its own recommendations
-the Respondent was guilty of procrastination, which took the case past the individual’s retirement date.
(c ) In the case of “Telecom Eireann and a Worker” (LCR 13547, dated 13th February 1992) the Court took the view that, although the Claimant was a pensioner, the matters at issue arose while the Claimant in the case was an employee.(d) In the case of Kerry Co. Council and a Worker (AD 0675, dated 13th October 2006), the Court made a decision on a case where the Claimant had not worked for the Council since 1984 and found the Claimant to be a worker for the purposes of the Act.
- This would be a breach of natural justice.
The Respondent Company argued that-
(1) Given the definitions of “worker” in the Industrial Relations Acts, and noting the inclusion of the term “or where the employment has ceased” in the Redundancy Payments, Unfair Dismissals, Organisation of Working Time and a plethora of the Acts in the Employment Rights area, it is significant that this term does not appear in the definitions contained in the Industrial Relations Acts. If the Oireachtas intended a right of access to the Labour Court or LRC for former employees, including pensioners, it would surely have expressly so provided. (This was also stated by this Court in LCR 13547, Telecom Eireann and a Worker).
(2) In the Kerry Co. Council Case (AD0675) the matter clearly concerns a trade dispute concerning “the employment or non-employment” of a worker.
(3) In the Forfás Case (LCR 16970) the matter following the Attorney General’s advice had both to have arisen prior to an individual’s retirementandto have been referred to a Rights Commissioner or the Court prior to the individual’s retirement. This did not happen in the instant case, and the Court does not have jurisdiction.
The Law
The Court can only investigate a dispute which statutorily is a “trade dispute” as defined in Section (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;”
- 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-
(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”
- (e) an officer of a vocational education committee, or
On several previous occasions, the Court has considered whether a dispute involving a retired person can be a trade dispute within the meaning of the Industrial Relations Acts 1946-2004.
The Court sought advice on this point both in 1974 and in 2001 on the matter. The advice on both occasions was that a person who is retired cannot be regarded as a worker and cannot be party to a trade dispute capable of being investigated by the Court.
In LCR 16970, “Forfás and a Worker”, the Court said:
- “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 Court prior to 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 Claimant seeks to distinguish this case on various bases;
(a) LCR 14019.
This case, heard in 1993, recommended salary bands for the Claimant and two other persons at the time. The Claimant was awarded the salary level of the maximum of the Assistant Secretary scale. The dispute referred to the Court in 2007 concerned pay and pension entitlements proper to holders of the substantive Grade of Assistant Secretary.
The Claimant was, in LCR 14019, placed on the maximum of the Assistant Secretary Scale, on a personal-to-holder basis. He was not made an Assistant Secretary on a substantive basis. Therefore, the claim does not properly arise from LCR 14019 and is not distinguishable from the Forfás case on that basis.
- This case was considered in the light of earlier advice of the Attorney General, which allowed the Court to hear matters, which arose during the currency of a retried person’s employment. The Forfás opinion added the rider that the case had to be referred to the Court or the LRC during the currency of that employment. This case was not so referred to the LRC or the Court.
(c) Kerry County Council & A Worker (AD-0675)While the claimant had not worked for his employer for many years, he was a worker and his case concerned continuing access to employment, which is covered under the Industrial Relations Acts.
Signed on behalf of the Labour Court
Raymond McGee
12th January, 2009______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Ciaran O'Neill, Court Secretary.