FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HEALTH SERVICE EXECUTIVE - AND - A WORKER DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Mr Nash |
1. Substantial monetary redress for years of anxiety
BACKGROUND:
2. This case concerns a dispute between the claimant and his former employer; the Health Service Executive in relation to the his claim for redress following years of alleged inappropriate behaviour towards him by management. On a preliminary issue, Management contend that the claimant is no longer classified as a worker as he is in receipt of a pension from the HSE and therefore it is inappropriate to deal with the substantive details of the complaint. Management further contends that the claimant retired from the organisation following a mediated agreement and therefore is no longer a worker vis a vis his employment with the HSE.
On the 13th February 2009, the claimant submitted his complaint in accordance with Section 20(1) of the Industrial Relations Act, 1969 and agreed to be bound by the Recommendation of the Court. A Labour Court hearing took place on 30th March 2010, the earliest date suitable to the parties.
WORKER'S ARGUMENTS:
3 1 The claimant is no longer employed by the HSE and is in receipt of an occupational pension. He is still a worker under the Industrial Relations Acts and should be permitted to raise his grievance, under that legislation, in the appropriate forum.
2 If a worker is retired from a particular employment, yet has not reached the age for the payment of an old age pension, it is inappropriate to class the worker as a retiree or a pensioner when he/she can seek to obtain work elsewhere. This in itself is discrimminatory against those who seek to gain employment after taking early retirement.
MANAGEMENT'S ARGUMENTS:
4 1 The claimant has not worked for the HSE for many years. His employment ceased after a mediated settlement and he is currently in receipt of an occupational pension from the employer. In such circumstances where there is no employment relationship between the parties, it is inappropriate to consider the claimant to be a worker vis a vis his employment with the HSE. On that basis there is no valid trade dispute and management therefore have no function in dealing with the substantive issues raised by the worker.
RECOMMENDATION:
The HSE made a preliminary objection to the jurisdiction of the Court to investigate the Claimant’s case on the basis that he is not a worker within the statutory meaning of that term. It was submitted that in consequence the Claimant cannot be a proper party to a trade dispute capable of investigation by the Court under the Industrial Relations Acts 1946 -2004.
The Claimant retired from his employment with the HSE in 2003. He was granted a pension based on permanent impairment. The Claimant is separately in receipt of a social welfare invalidity pension. The Claimant told the Court that he is currently unable to work due to an occupational injury but he is entitled to work for up to 20 hours per week while in receipt of his social welfare invalidity pension.
The only issue for determination by the Court at this stage is whether the Claimant is entitled to have his complaint against the HSE investigated under 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 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. While it is noted that the Claimant regards himself as a worker and as an active member of the labour force the fact of the matter is that he is a retired member of the HSE staff since 2003 and is in receipt of a pension form the State. In these circumstances the Court has come to the view that the Claimant cannot be classified as a worker within the statutory meaning of that term. Accordingly he cannot be a proper party to a trade dispute which is capable in law of being investigated by the Court.
In these circumstances the cannot embark on an investigation of the Claimant complaint.
Signed on behalf of the Labour Court
Kevin Duffy
19th April 2010______________________
ahChairman
NOTE
Enquiries concerning this Recommendation should be addressed to Andrew Heavey, Court Secretary.