LCR19447

The Claimant agreed to be bound by the Court’s Recommendation.

CLAIMANT'S ARGUMENTS:

3. 1. There are extenuating circumstances beyond the Claimant's control which caused the claim to be delayed until after he retired, however the fact remains that the Claimant has suffered a loss in salary, retirement lump sum and pension payments.

2. Under natural justice the Irish Constitution guarantees the right to fair and just procedures. The Claimant deserves to have his case heard and investigated by the Labour Court otherwise the Claimant could be denied justice.

COMPANY'S ARGUMENTS:

4. 1. The meaning 'Trade Dispute' is contained in Section 3 of the Industrial Relations Act 1946 and the definition of 'Worker' is to be found in Section 23 of the Industrial Relations Act 1990. Neither definition is applicable in this dispute.

2.In the circumstances where the Claimant has retired and where his complaint to the Labour Court was lodged after he left his employment the Court has no jurisdiction to hear or investigate this case. The complaint should be dismissed on the grounds of absence of jurisdiction.


RECOMMENDATION:

This case, which concerns the Claimant’s pension entitlements, arising out of the non-payment of certain claimed salary increases while in the employment of the Electricity Supply Board (the ESB).

The Worker in question was attempting to process his case over a number of years. He retired in December 2007. On 23rd February 2008, he referred the matter to a Rights Commissioner for hearing under the Industrial Relations Acts but the ESB objected on 6th March 2008 to a hearing taking place.

On 11th May 2008, the Claimant referred the case to the Court under Section 20(1) of the Industrial Relations Act, 1969.

In the case of“Forfás and A Worker”(LCR16970), dated 8th November 2001, this Court found that a person who is retired from the workforce cannot be regarded as a worker and the Court has no jurisdiction to investigate a case brought by such a person unless the matter (a) is one which is ongoing during the currency of the individual’s employment; and (b) was referred to the Labour Relations Commission or the Labour Court prior to the individual’s retirement. The advice from which the Recommendation was derived came from an Opinion provided to the Court by the Attorney General.

The Court reached its decision in the Forfás case in the following terms:-

• “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.”