LCR19513

3. 1. An expectation existed that payment of the third phase of benchmarking would be applied to all workers. Delays already occurred in relation to the payment of the previous two phases, yet payments were made.

2. It is unacceptable that workers are penalised for management's delay in the processing and application of the due increases

COMPANY'S ARGUMENTS:

4. 1. The workers are no longer employed by the organisation, either through redundancy, retirement or resignation. On the basis that they are no longer employed by the organisation, and were not signed up to the performance verification process prior to the cessation of their employment, they are not entitled to the payment of the third phase of benchmarking.

2. There are many ex employess who left their employment prior to the performance verification process agreement and were not paid the increases.Concession of this claim would lead to repercussive claims in the future which the organisation could not sustain.

RECOMMENDATION:

The matter before the Court concerns the application of the third and final phase (25%) of Benchmarking Award for 7 named claimants, all of whom had left the Organisation prior to the date of payment. The award was paid, following negotiations and agreement with the Union, on 6th December 2007.



Two Retired Claimants

At the commencement of this hearing the representative of the Organisation submitted that the Court lacked jurisdiction to investigate this dispute because two of the claimants, on whose behalf the claim was brought, were not workers within the meaning of the Industrial Relations Acts 1946-2004.

The employer submitted that as Mr. B retired on 3rd January 2006 and Mr. M retired on 29th July 2007, they are no longer workers within the meaning of the Acts. The dispute to which they are a party to was referred to the Court on 15th and 16th July 2008, respectively. The dispute had previously been referred to the Rights Commissioner Service of the LRC in April 2008, however, the Organisation objected to a hearing taking place and the claimants then referred their case to the Court under Section 20(1) of the Industrial Relations Act, 1969.

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 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;"

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 Workeras 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.”

This Court endorsed the findings and views expressed inForfásagain in the case of “University College Dublin and A Worker”(LCR 19310), dated 12th August, 2008, and again in a number of other cases since. As the Court cannot actultra viresits statutory powers, it must adopt the same approach as was adopted in theForfáscase in this case and consequently, the Court declines jurisdiction in the case of the two claimants, Mr. M and Mr. B.

The Court must, therefore, decline to issue a Recommendation in respect of the two retired claimants in this case.

Remaining Five Named Claimants

The remaining five claimants left the Organisation prior to the payout date either through resignation or redundancy.


The employer stated that payment was made only to those workers in employment on 6th December 2007 and in their case a retrospective payment was paid back to 1st June 2005. Towards that end the Organisation negotiated with the Union in respect of those affiliated to it and to those not affiliated it engaged on an individual basis to ensure individual agreement on the key objectives and achievement of the Performance Verification process.

The Union on behalf of the five claimants stated that they had an expectation that they would receive the final payment under Benchmarking, which was due from 1st June 2005 but not paid until 6th December 2007. Their expectation arose principally as the first two phases had each been paid later than the due dates and were paid retrospectively not only to those in employment at the payout date but also to former employees who had left before that date.

Management explained that the terms of the final phase were quite different to the previous two phases and that very strict criteria applied whereby each individual worker was required to personally agree and sign up to co-operate with the Performance Verification process.

The Court understands that following the Union’s ballot and acceptance of the terms on 25th October 2007, the process of paying retrospective monies commenced, however, as it had over 1,000 employees this was a complex substantial task for the Organisation, consequently the process took almost three months before the monies were paid out.

The Court accepts that the criteria were very specific in the case of the final phase and that payment of retrospective payments was conditional on individual co-operation with the process. Therefore, the Court does not find in favour of the Union’s claim for the application of such a payment to four of the remaining claimants as they did not meet the criteria.

In respect of the fifth remaining claimant, the Court recommends as follows:

The Court is of the view that exceptional circumstances exist in the case of one of the claimants (Mr. F who commenced employment on 13th March 2006 and who’s employment terminated on 8th November 2007) as he was employed when the results of the Union’s ballot and acceptance of the Performance Verification Agreement were notified to the Organisation. Moreover, the Agreement for signature by each individual worker was completed on 25th October 2007, and signatures sought up until 16th November 2007. In all these circumstances, the Court recommends that the retrospective payments should be paid to this particular claimant.

The Court so recommends.







Signed on behalf of the Labour Court



Caroline Jenkinson
5th May, 2009______________________
AHDeputy Chairman



NOTE

Enquiries concerning this Recommendation should be addressed to John Foley, Court Secretary.