FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TEAGASC - AND - A WORKER (REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Mr O'Neill |
1. Appeal Of A Rights Commissioner's Recommendation R-083320-Ir-09/EH
BACKGROUND:
2. The issue before the Court concerns a claim by the Union on behalf of its member that her Employer has failed to regularise her employment. The Worker has been employed with the Company through a number of contracts dating back to September, 2002. In her last contract recieved in 2006 no end date was specified. In August, 2006 the Employer informed the Worker it would be terminating her contract. The Union wrote to the Employer seeking clarification as to why her employment was terminated. The Worker then recieved continued employment with the Employer at a different location and after a break of six months. This position arose as a result of the decision by two staff members to avail of a reduced working week. It is the Company's position that the Worker was offered and accepted a specific purpose contract in March 2007 and was aware that her employment was for the purpose of covering vacant hours. The Union argues that the Worker accepted the position on the understanding that her employment would be regularised at the earliest opportunity.The matter was referred to a Rights Commissioner for investigation and recommendation. On the 18th January, 2010, the Rights Commissioner issued the following Recommendation:-
"I recommend that Teagasc confirm (Worker named) permanency on a full time basis with immediate effect.
I recommend that compensation is not appropriate in this case."
On the 17th February, 2010, the Employer appealed and on the 23rd February the Union appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969.A Labour Court hearing took place on the 24th June, 2010, the earliest date suitable to the parties.
UNION'S ARGUMENTS:
3. 1 The Workers employment history with Teagasc is considerable. She had secured a position with another employer but returned to Teagasc on the basis that she was promised long term employment.
2 A commitment was given by Management to regularise the Worker's employment at the beginning of July 2008. This agreement has not been honoured.
3 The Worker's employment was reduced from full-time to one day per week from September 2009. The Union is seeking that her permanency in a full-time position is back dated with effect from September, 2009.
EMPLOYER'S ARGUMENTS:
4. 1 In March 2007 the Worker was offered and accepted a specific purpose contract and her employment was clearly for the purposes of covering vacant hours as a result of other staff working reduced hours.
2 The fact that her hours were reduced was a direct result of the specific purpose contract. The Employer should not be required to appoint her to a full-time permanent position with effect from September 2009.
3 Through the emergence of a suitable vacancy and the securing of a special sanction, the Worker was appointed to a permanent full time post in June 2010 as an exceptional measure and given her service history.
DECISION:
This is an appeal by both parties of a Rights Commissioner’s Recommendation which found that the claimant should be confirmed in a permanent position on a full-time basis with immediate effect (18th January 2010).
The Union on behalf of the claimant appealed the Recommendation on the basis that permanency should be backdated for her to 7th September 2009 when her weekly working hours were reduced from five days week to one day per week.
The employer appealed the Recommendation as it held that there were no grounds to justify the appointment of the claimant to a full-time permanent post with effect from 18th January 2010. It held that as a fixed term worker the reason for the reduction in working days was due to the nature of the specified contract issued to her at the time. It also confirmed that as an exceptional measure given her service history and as a result of the emergence of a suitable vacancy combined with the securing of a special sanction from the Department of Agriculture, Fisheries and Food it was in a position to appoint her to a permanent full-time position from June 2010.
The Court notes that in July 2008 Teagasc committed to regularise the claimant’s position due to her long-term service as a temporary employee. However, in the meantime the public service moratorium on recruitment prevented it from enacting on that commitment. However, by June 2010 Teagasc was in a position to offer her a permanent full-time post and to recognise her continuity of service going back to 1st March 2007.
In all the circumstance of this case the Court is of the view that the employers’ actions were fair and reasonable and therefore upholds its appeal. The Union’s appeal is rejected.
The Rights Commissioner’s Recommendation is varied accordingly.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
14th July 2010______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to David P Noonan, Court Secretary.