FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : ST CATHERINES COLLEGE OF EDUCATION FOR HOME ECONOMICS (REPRESENTED BY DEPARTMENT OF EDUCATION AND SCIENCE) - AND - A WORKER (REPRESENTED BY IFUT) DIVISION : Chairman: Mr Duffy Employer Member: Ms Cryan Worker Member: Mr O'Neill |
1. Claim for compensation in line with LCR 19318
BACKGROUND:
2. This case concerns a dispute between St Catherines College of Education and the Irish Federation of University Teachers (IFUT) in relation to a claim for compendation following the closure of the college. The matter was previously dealt with by the Court in respect of four other claimants and compensation of €15,000 was awarded on the basis that the workers were not adequately assisted with the possibilities of re-deployment and the threat to remove them from the payroll was deemed unfair in the circumstances. (LCR 19318 refers).
The Union's position in this case is that the worker was also treated in an unreasonable manner by management and was not faciltated around the time of the closure as would be expected from a resasonable employer. The Union is seeking that the terms of LCR19318 be applied to the worker in this case also.
The Union (on behalf of the worker) referred the matter to the Labour Court in accordance with Section 20(1) of the Industrial Relations Act, 1969 and agreed to be bound by the Court's Recommendation. A Labour Court hearing took place on 7th December, 2010
UNION'S ARGUMENTS:
3 1 The original referral, which resulted in the Courts previous recommendation, depicts the unfair treatment of the workforce by management. The fact that there were only four claimants at that time does not negate the way that all workers were treated by management in the closure of the college.
2 Given the treatment of the workers by management and the subsequent compensation aid to the other claimants, it is only fair that the claimant in this case be compensated in the same terms.
COMPANY'S ARGUMENTS:
4 1 On a preliminary point, the claimant is retired and no longer a worker as envisaged by the Industrial Relations Act, 1990. As a result there is no entitlement to refer a matter to the Labour Court and the Court has no jurisdiction to hear the complaint.
2 On the substantive issue, the worker accepted retirement, was not part to the original claim and actally turned down offers of re-deployment. In such circumstances, it is not appropriate to apply the terms of LCR19318 to the claimant in this case.
RECOMMENDATION:
The representative of the employer objected to the jurisdiction of the Court to investigate this dispute on the basis that the Claimant’s had availed of early retirement and was not a worker within the meaning of s.23 of the Industrial Relations Act 1990.
In a number of previous recommendations the Court has held that a person who is retired is not a worker for the purposes of the Industrial Relations Acts 1946-2004. Consequently such a person cannot be a proper party to a trade dispute capable of investigation by the Court. However, in all of these cases the putative claimant had retired in the normal course on age grounds and was no longer a members of the labour force. The underlying rationale of this approach is that the term worker, as used in the Acts, refers to a person’s normal occupation or way of life rather than to their immediate employment status. By parity of reasoning if a person’s normal occupation or way of life no longer involves working for a living, they are not properly classifiable as a worker.
In that regard the Court has, in effect, adopted the reasoning applied by the High Court inFerguson v O’Gorman[1937] IR 620. Here it was contended that a person who was unemployed could not come within the definition of ‘workman’ in the Trade Disputes Act 1906. Meredith J. interpreted the expression as referring to a person’s occupation or way of life rather than to their actual employment status at the time the dispute arose. InGoulding Chemicals v Bolger[1977] IR 211, O’Higgins CJ expressly adopted that reasoning in rejecting a submission to the effect that persons who had been lawfully made redundant were not workmen within the meaning of the Act of 1906. Thus the position of a person who is temporally out of work and seeking employment is to be distinguished from that of a person who has retired from work and whose way of life is that of a retiree or pensioner who is no longer a member of the labour force.
In the present case it was submitted on behalf of the employer that a worker, for the purpose of s.23 of the 1990 Act, should be construed as referring to a person employed under an extant contract. Such an interpretation, if accepted, would lead to an obvious absurdity. It would mean that an employee whose employment came to an end could not bring a complaint before the Court concerning the circumstances surrounding the termination of his or her employment. Further, as industrial action in furtherance of a dispute concerning dismissal is protected by the immunities granted by Part II of the 1990 Act, this construction could give rise to a further absurdity. A situation could arise where a worker in dispute concerning the termination of his or her employment could lawfully picket his or her former place of employment but could not invoke the assistance of the Court to seek a peaceful resolution of the same dispute. The purpose of the Industrial Relations Act, as is clear from the Long Title of the Principal Act, is the promotion of harmonious relations between employers and workers and the prevention and settlement of trade disputes. It would be plainly contrary to that general intention to preclude the Court from seeking to resolve a dispute involving a person who is not in actual employment while allowing such a person to lawfully engage in a strike or other industrial action in furtherance of the dispute. Such a result could not have been intended.
The authorities previously referred to make it clear that a person who is out of actual employment is protected by the immunities provided in trade disputes law. These authorities were concerned with the correct parties to a trade dispute for the purpose of the Trade Disputes Act 1906. That Act has been repealed in its entirety and replaced by Part II of the Industrial Relations Act 1990. However, there is nothing in the Act of 1990 to suggest that the definition of a ‘worker’ contained in s.8 of that Act is intended to have a more restricted meaning that that ascribed to the corresponding definition of ‘workman’ in the previous law. Consequently, those authorities remain apposite for present purposes.
In the present case the Claimant’s position became redundant when the College in which he was employed closed down. As part of the package of measures available to those being displaced by the closure the Claimant availed of an early pension and a lump sum. However, it is not disputed that he continued to seek employment in his profession and has continued to work in teaching. Hence, his occupation and way of life continues to be that of a teacher. Furthermore, the dispute now before the Court relates to the terms on which his employment came to an end.
In these circumstances the Court is satisfied that the Claimant is a worker within the meaning of the Industrial Relations Acts 1946 – 2004.
The substantive Dispute.
The gist of the Claimant’s case is that the factors taken into consideration by the Court in issuing Recommendation 19318 in respect to four other former teachers employed by the College apply equally to him. On that basis he claims that he is entitled to the same compensatory sum recommended by the Court, and paid by the College, to those teachers.
As is clear from the text of Recommendation 19318 the Court was influenced in that case by its conclusion that the Claimants were not adequately assisted in seeking redeployment as an alternative to redundancy / early retirement. In particular the Court clearly took the view that those claimants were left with no option but to accept early retirement and they expressly reserved their position in accepting that option.
The Court is not satisfied that the present Claimant’s circumstances were on all fours with those of the Claimants in the earlier case. Firstly the Claimant was offered a number of redeployment options which he declined or did not pursue. Secondly, it seems clear that the Claimant willingly opted to avail of an early retirement option by way of a redundancy settlement. In that regard the Claimant made no complaint concerning his severance terms. Moreover, unlike his former colleagues, he did not reserve his position in relation to those terms.
There are further considerations of relevance in this case. As a matter of good industrial relations practice a worker should act promptly in raising a claim once he or she becomes aware of the underlying facts giving rise to their grievance. Where a worker delays in advancing a claim until others have successfully pursued similar claims it undermines the merits of their position and can give rise to industrial relations difficulties which are aptly illustrated in this case. It is clear that the College accepted Recommendation 19318 on the express understanding that it was a full and final settlement which would not be relied upon as having precedential value in advancing any other claims. The Union accepted the College’s position in that regard and did so in the bona fide belief that no other claims were then in contemplation. It is reasonable to conclude that if the present claim had been raised at that stage the Union would not have accepted that condition and the College might well have adopted a different stance on the Recommendation. In an industrial relations context these are matters which must weigh heavily with the Court.
In all the circumstances the Court does not believe that a sound basis exists upon which it could recommend concession of the Union’s claim.
Signed on behalf of the Labour Court
Kevin Duffy
23rd December 2010______________________
AHChairman
NOTE
Enquiries concerning this Recommendation should be addressed to Andrew Heavey, Court Secretary.