FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : BALLYFERMOT RESOURCE CENTRE PROJECT - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. Appeal of Rights Commissioner's Recommendation r-080180-ir-09/RG
BACKGROUND:
2. This case concerns an appeal by the employer of Rights Commissioner's Recommendation r-080180-ir-09/RG. The issue concerns a worker who was employed on a Community Employment Scheme (CES) for three years at the Ballyfermot Resource Centre Project. The Union's position is that the worker was eligible for an extra year on the CE Scheme but was refused.
Management's position is that although the worker was eligible for an extension, it was not an automatic entitlement. Management further contend that the purpose of the CE Scheme is to assist the long term unemployed in gaining the appropriate training to return to the workforce and that participation on the Scheme finishes after three years to allow new participants enter into the system.
The dispute was referred to a Rights Commissioner for investigation. Her Recommendation issued on the 21st January 2010, and awarded the worker €1000 in compensation on the basis of the lack of clarity pertaining to the three-year cut off point on the Schemes. The award was to be paid within six weeks of the date of the Recommendation and was in full and final settlement of the issues in dispute.
On the 18th February, 2010, the employer appealed the Rights Commissioner's Recommendation in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on 1st July, 2010
UNION'S ARGUMENTS:
3 1 The worker was eligible for an extra years' participation on the CE Scheme. There were several instances within the organisation where participants were allowed remain on the Scheme yet the worker in this case was refused. This is unfair and unacceptable.
2 The appropriate training and development was not provided to the worker while he was employed on the Community Employment Scheme. He would have greatly benifited from the additional year on the scheme to assist with his transition into the workplace yet he was refused, despite assurances given that there would not be a problem.
MANAGEMENT'S ARGUMENTS:
4 1 Management at all times adhered to the rules of the Scheme. The worker may have been eligible for an extension but was not automatically entitled to the additional year.
2 There were previous participants under different management who remained on the scheme for the additional year but current circumstances require as many people as possible to partake in the scheme. This requires a turnaround on the Scheme after the three year period has elapsed.
3 The worker was informed that an additional year may be possible on the Scheme at a different location but refused to accept this opportunity.
DECISION:
This is an appeal by Ballyfermot Resource Centre Project of a Rights Commissioner’s Recommendation which found in favour of the Claimant and recommended an award of €1,000.
Having considered all aspects of the appeal the Court accepts that the Board of Management have a right to restrict availability on their project to three years for participants on Community Employment Schemes, on the basis that where an extension is authorised by FÁS, such participants transfer to another project, with assistance from the Centre.
Conflicting evidence was given to the Court on whether the Claimant in this case was offered such a transfer to complete his fourth year on the Scheme.
As the Claimant had completed three years on the Scheme at the Centre, the Court accepts that there was no further obligation on it to extend his contract. Furthermore, the Court was informed that due to his state of health, the Claimant is not in a position to avail of further employment at another Community Employment Schemes or otherwise at the moment.
Due to the uncertainty surrounding the issue of an offer of transfer to another project, the Court decides that if and when the Claimant is in a position to resume employment, in co-operation with FÁS, the Centre should endeavour to assist him in whatever way possible.
Therefore, the Court upholds the Centre’s appeal and overturns the Rights Commissioner's Recommendation.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
21st July 2010______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.