FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : STATE EXAMINATIONS COMMISSION (REPRESENTED BY WHITAKER & CO. SOLICITORS) - AND - A WORKER (REPRESENTED BY JOHN CURRAN, B.L.) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. Appeal of Recommendation of a Rights Commissioner o. R-088104-IR-09/JW.
BACKGROUND:
2. On or about the 4th to the 8th May, 2009 the Worker was contacted by the State Examinations Commission (SEC) and offered a position on the reserve panel of examiners. On the 14th May 2009 a letter of appointment was forwarded to the Worker.
The Marking Conference for the designated subject took place on the 25th and 26th of May 2009.
On the 26th May 2009 the Worker was furnished with 212 Scripts and was required as per the terms of his contract to provide a sample of 20 fully marked scripts by the 1st June 2009. Following communications between the Worker and the Advising Examiner the overdue scripts were submitted on the 4th June 2009.
The Advising Examiner began monitoring the sample scripts and detected a number of errors in the process. The second deadline of the 6th June 2009 was also breached. A further ten completed scripts were submitted on the 8th June which also contained a number of serious failures to comply with the express marking instructions.
On Monday 8th June 2009 a meeting was convened between the Advising Examiner, the Chief Advising Examiner and the Examinations and Assessment Manager for the Leaving Certificate Vocational Programme (LCVP) examination to consider the situation involving the Worker and to examine the updated scripts. At that stage the SEC stated that it was clear that the Worker had failed to improve the standard to the level required as he had been advised to do on numerous occasions.
It was decided to terminate the Worker's contract. He was paid on a pro rata basis for the scripts received by the SEC.
The Worker referred the matter of his dismissal to a Rights Commissioner for investigation and recommendation. His findings issued on the 5th August, 2010 as follows:-
"Based on the evidence presented by both parties at the two hearings, and taking into account supplementary submissions I find that the Rights Commissioner does not have jurisdiction to hear this complaint,because of the implications of Section 23(1)(a) of the Industrial Relations Acts."
The Worker appealed the Rights Commissioner's recommendation to the Labour Court on the 13th September, 2010, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 19th November,2010.
WORKER'S ARGUMENTS:
3. 1. The Worker maintains that on the day of his dismissal, the 8th June, 2010, he received a phone call at 12.30pm enquiring as to his progress and requesting that he submit a further ten scripts for further monitoring. No mention of poor work was made at that time and no mention that he was in danger of having his work-load reduced let alone that he was being considered for termination of his contract.
2. At 16.00 hrs. on the same day he received another phone call informing him of the immediate termination of his contract and recalling his answerbooks.
3. The Worker maintains that this was the first time termination of his contract was mentioned to him and that he was given no opportunity to make representations or to be represented. The Worker further maintains that this was a fundamental breach of the Code of Practice on Disciplinary and Grievance procedures and a breach of his right to natural justice and fair procedures.
4. The Worker contends that he was engaged on "a contract personally to execute work or labour" and that therefore he is embraced by the definition of 'worker' as defined in the Industrial Relations Acts.
MANAGEMENT'S ARGUMENTS:
4. 1. Management contends that as the Worker was'a person who is employed by or under the State....'that he was not a Worker as defined under Section 23 (1) of the Industrial Relations Act 1990 and is therefore expressly precluded from the provisions of the Industrial Relations Acts.
2. Management contends that as the Worker was not at any material time an employee of the SEC his entitlements to natural justice and fair procedures do not arise. The relationship between the parties was that of service provided and end user.
3. It is Mangement's contention that it was the failure by the Worker to complete his contractual obligations that gave rise to his dismissal.
DECISION:
This is an appeal taken by the Appellant against a Recommendation of the Rights Commissioner who found that he was not a “worker” as defined by Section 23 of the Industrial Relations Act 1990 and consequently held that he had no jurisdiction to hear his claim. The Appellant appealed the Decision of the Rights Commissioner to this Court.
The claim before the Rights Commissioner relates to the Appellant’s dispute with the State Examinations Commission (“the SEC”) over thes unilateral termination of his contract without notice or any procedures which occurred on 8th June 2009.
The Appellant was engaged as an Assistant Examiner to correct examination scripts under the Links Module Leaving Certificate Vocational Programme.
Preliminary Issue
Mr. Stephen Boggs, B.L. instructed by Brian Whitaker & Co., Solicitors, on behalf of the SEC, submitted, firstly, that the Appellant was not a worker within the definition of Section 23 of the Industrial Relations Act, 1990 and held that he was a service-provider retained under a contract for services and, secondly in the alternative that he was a person employed “by or under the State” and in consequence the Court has no jurisdiction to investigation the appeal under the Section 13 (9) of the Industrial Relations Act 1969.
The SEC is a statutory body, established by the Minster for Education and Skills, and is responsible for organising the holding of State examinations (principally the Junior and Leaving Certificates), to ensure the smooth running of public examinations including the marking of work presented for examination. The SEC has permanent staff, appointed pursuant to the Civil Service Commission Act, 1956, and the Civil Service Regulations Acts, 1956 to 2005, which apply to those employees transferred into the employment of the Commission from the Civil Service on its establishment day. The State Examinations Commission (Establishment) Order S.I. 373 of 2003 upon which the SEC was established by the Minister for Education and Skills sets out the objectives of the SEC and provides for various powers to aid it in the completion of its delegated functions.
Mr. John Curran, B.L., on behalf of the Appellant, held that the Appellant was a worker within the definition of the 1990 Act as he was on a contract with the SEC to personally execute work. Furthermore, he held that the Appellant was not employed “by or under the State”. He said that according to its own website the SEC “is a non-departmental public body under the aegis of the Department of Education and Skills” and as such can be compared to a body such as the HSE.
The Law
For the purposes of hearing an appeal under Section 13 (9) of the Industrial Relations Act 1969, a “worker” must be as defined by Section 23 of the Industrial Relations Act 1990 thus:
- 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
The ambit of this definition was considered by the High Court inBuilding and Allied Trades Union and Another v The Labour Court and Others,High Court, Unreported, Murphy J., 15th April 2005. This was an application by way of Judicial Review to quash an order of this Court varying a Registered Agreement so as to incorporate,inter alia,a clause dealing with sub-contractors. It was contended that the effect of the proposed variation was to extend the scope of the Agreement by including sub-contractors, who were not workers, within its terms. In rejecting this contention, Murphy J. considered the meaning of the term "worker" by reference to the definition of that term contained at Section 23 of the Industrial Relations Act 1990.
Murphy J. pointed out that this was a wider definition than that contained at Section 8 of the same Act, and is not confined in its scope to those employed under a contract of service: -
- "The former definition, which was the relevant definition for the purpose of this application refers, in addition to a contract of service or of apprenticeship, to a "contract personally to execute any work or labour". This would seem to imply a contract for services and, accordingly, to include an individual worker acting as contractor or sub-contractor."
In this case the Appellant was engaged under contract to provide a service to the SEC and he was contractually obligated to provide that service personally. In these circumstances, the Court is satisfied that the Appellant is a “worker” within the meaning of the Industrial Relations Act 1990.
Having considered the positions of both sides on the issue of whether or not he was a worker employed by or under the State, the Court notes that, while all permanent members of staff are covered by the Civil Service Regulations Acts, 1956 to 2005, and have access to the Civil Service Conciliation and Arbitration Scheme, the Appellant does not. The SEC stated that effectively he had no access to any third party conciliation and/or arbitration bodies, i.e. Labour Relations Commission or Rights Commissioner on any matter involving discipline or grievance.
Mr. Curran referred the Court to the case ofCentral Bank of Ireland v. Martin Leo Gildea[1997] 2.I.L.R.M. 391 in which the Supreme Court held that a Security Guard employed by the Bank was not a person employed “by or under the State” within the meaning of section 2(1)(h) of the Unfair Dismissals Act, 1977. The Court held that employee was in no different a position to those employed in what are described as “semi-state bodies”. In the absence of specific legislative provision (such as the Civil Service Regulations Act, 1956), such employees were not to be regarded as civil servants. As Mr. Gildea’s employment was solely governed by the terms of any contract entered into between him and the Bank, it held that he was not employed by or under the State.
Conclusion of the Court on the Preliminary Issue
In this case the Appellant was engaged under contract to provide a service to the SEC and he was contractually obligated to provide that service personally. In these circumstances, the Court is satisfied that the Appellant is a “worker” within the meaning of the Industrial Relations Act 1990.
The Appellant was engaged by the SEC on terms determined by the SEC, not by the Civil Service Regulation Acts, 1956-2005, which were different to those of permanent staff of the SEC. It was accepted by the SEC that while engaged on the contract to mark the examination scripts he was not considered a Civil Servant and had no access to the Civil Service Conciliation and Arbitration Scheme. Like the circumstances inCentral Bank v Gildea, the Appellant was not regarded as a Civil Servant and his contract was solely governed by the contract he entered into with the SEC. This factor, coupled with his non-accessibility to the Civil Service Conciliation and Arbitration Scheme, leads the Court to conclude that he is not employed by or under the State and accordingly the Court has jurisdiction under the Industrial Relations Acts 1946-2004 to hear his appeal.
The Substantive Claim before the Court
The Appellant submitted that he had been unfairly treated when his contract was summarily terminated under which contract he was required to complete the marking of 221 scripts. He told the Court that he had endeavoured to the best of his ability to complete the work but that due to other commitments to which he was contractually bound he fell behind in the number of scripts he was scheduled to complete by specific dates. He said that he worked diligently and successfully accomplished his allotted tasks and that he was in constant communication with the Advising Examiner at all times.
The SEC told the Court that it operates to immutable deadlines in marking the Leaving Certificate examination scripts and is obliged to issue the Leaving Certificate results seven-and-a-half weeks after the conclusion of the written examinations. Therefore, a period of 26 days is devoted to the completion by the Assistant Examiners of examination script marking. It also stated that it is required to implement the highest standards of stringent quality to ensure that candidates are treated in an equitable and consistent fashion. The SEC deals annually with 110,000 candidates and retains the services of 6,000 examiners including 3,500 involved in the grading of written examination scripts.
Selected Examiners are required to complete an application form which is accompanied with an information note setting out the obligations on them for the period of the marking. It requires them to devote their full time and attention to the marking work during the 26-day period. On his application form the Appellant wrote :
- “I will be able to give full-time commitment to this application @ the specified times”.
The SEC told the Court that there were particular difficulties with the Appellant’s work in that he missed each set deadline, he did not submit the appropriate number of scripts required at each deadline and the quality of the marking was poor, it appeared that he made no attempt to familiarise himself with the contents of the subject, the marks were not in accordance with the marking scheme, he had unilaterally added additional points and he had written on a number of the manuscripts in clear breach of the Regulations. The SEC stated that when these failures were brought to his attention he did not take on board the directions given to him.
By day thirteen, as the Appellant had only completed 30 scripts, and with no attempt made to rectify the errors made, the SEC decided that it had no choice in the very tight timeframe but to remove the scripts from him and terminate his contract.
Having considered the submissions of both parties, the Court notes that very specific guidelines were issued to the Appellant prior to the commencement of his task which clearly outlined the SEC’s requirements in terms of the marking of examination scripts and in terms of the obligations on the Assistant Examiner which included a statement that in the event of evidence of negligence or other unsatisfactory work the SEC may recall his scripts. It states that an Assistant Examiner whose contract is terminated may not be reappointed to any other position in the future.
In all the circumstances outlined, the Court is of the view that the Appellant may not have fully appreciated the level of work involved in the process which required full and dedicated effort during the 26-day period designated for the marking of scripts. It appears to the Court that the Appellant seemed to be of the view that if he was having difficulties then some of the pressure would be taken off him and he would be relieved of the bulk of the scripts allocated to him.
The Court fully understands that the process is somewhat unique, requiring full dedication for the period in question, with minimal flexibility. It is clear that the Appellant had many difficulties in fulfilling that role and in meeting the required deadlines due to other commitments which he had at the time. The Court is of the view that the behaviour of the SEC was reasonable and fair in all the circumstances of this case and accordingly does not find in favour of the Appellant’s claim.
Therefore, the Court overturns the Rights Commissioner’s Recommendation.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
8th December, 2010______________________
MG.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Madelon Geoghegan, Court Secretary.