FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE WEST - AND - A WORKER (REPRESENTED BY KANE TUOHY SOLICITORS) DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Appeal of a Rights Commissioner's Recommendation R-059833-IR-07
BACKGROUND:
2. The worker has two claims before the Court, the second one being under the Protection of Employees (Fixed Term Work) Act, 2003, (the Fixed-Term Act). The worker has been employed as a Senior House Officer for the HSE West since July, 2001. He was first employed under contract dated 1st July, 2001, for a fixed term of 6 months and thereafter retained on successive 6-monthly-contracts until 30th June, 2006. He was dismissed on 1st July, 2006. The worker instituted legal proceedings claiming that he was entitled to a Contract of Indefinite Duration (CID) and the HSE agreed to re-instate him on a CID in December, 2006. The worker's claim is that he has suffered considerable financial and personal loss as a result of his dismissal.
The case was the subject of four hearings before a Rights Commissioner who issued his recommendation as follows:
"Being mindful of the efforts made to date to resolve this long standing dispute between the parties and in an effort to bring satisfactory closure I recommend as follows:-
- The payment of €7,000 (say seven thousand euro) to the claimant by the respondent without admission of any liability whatsoever.
- An acknowledgement by the claimant that the payment of such amount settles all matters of dispute between himself and his employer to date other than his complaint under the Protection of Employees (Fixed Term Work) Act, 2003.
The worker appealed the recommendation to the Labour Court on the 13th March, 2009, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 10th February, 2010, in Galway.
WORKER'S ARGUMENTS:
3. 1. The Rights Commissioner's recommendation does not deal adequately with a number of issues which have been ongoing for a considerable time. The worker is subject to an onerous rotational clause wherein he has to move location every 6 months. This was not part of the terms and conditions of his CID. He is also not entitled to access benefits, in particular training entitlements, to which he was previously entitled.
2. The worker does not believe that compensation award properly compensates for the actual financial loss suffered or the personal trauma suffered.
HSE'S ARGUMENTS
4. 1. The worker has been paid all monies owed to him in relation to basic pay, overtime, on-call, arrears of pay etc.
2. The worker's rotational roster is no different to that of his colleagues and is in accordance with the terms and conditions of his CID. The same applies to all aspects of his job (details supplied to the Court). The CID is identical in terms as the Fixed Term Contract from which it derived.
DECISION:
The Court has carefully considered the submissions of the parties to this appeal.
The Court is satisfied that the conclusions reached by the Rights Commissioner are reasonable and in accordance with the facts of the case. Accordingly the Court can find no basis upon which it could interfere with the recommendation of the Rights Commissioner.
The Court would, however, recommend that the parties should have further discussions with a view to resolving outstanding issues concerning the Claimant’s current contractual arrangements.
With this qualification the recommendation of the Rights Commissioner is affirmed.
Signed on behalf of the Labour Court
Kevin Duffy
4th March, 2010______________________
CONChairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.