FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : OFFICE OF TOBACCO CONTROL - AND - A WORKER (REPRESENTED BY ASSOCIATION OF HIGHER CIVIL & PUBLIC SERVANTS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. Appeal of a Recommendation of a Rights Commissioner No. R-081699-IR-09/JT.
BACKGROUND:
2. The Worker concerned joined the Office of Tobacco Control (OTC) from the private sector initially on a fixed-term contract for one year in August 2001. In December 2002 the Worker was offered and accepted a permanent contract of employment as a grade VII (HSE grade). She subsequently served as an acting AP from May 2005 and served a period of nine months as acting CEO (PO) in 2006. She was promoted to substantive AP in September 2006 following a competitive interview. She is currently again acting CEO (PO) since January 2010.
On the 23rd November 2009 the AHCPS, on behalf of the Worker brought a case on incremental credit to a Rights Commissioner for investigation and recommendation.
At the commencement of that hearing the OTC raised in their submission that the Worker concerned was not entitled to bring their case before a Rights Commissioner as they are not a "worker" under Section 23 of the Industrial Relations Act 1990 and thus not eligible to refer a dispute to a Rights Commissioner under the Industrial Relations Acts 1946 to 2004.
The Rights Commissioner issued his findings on the 21st April 2010 as follows:-
"In considering this preliminary point I considered Section 23 ofthe Act which defines a worker as eligible to take a complaint under this Act but does not include Section 23 (1) (a person who is employed by or under the state).
Under the above section of the Act I have no jurisdiction to hear the complaint therefore the complaint cannot proceedunder this Act."
On the 24th May 2010 the Union, on behalf of the Worker, 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 17th September, 2010.
UNION'S ARGUMENTS:
3. 1. The Union maintains that the Worker concerned is an employee of the Office of Tobacco Control. She is not a civil servant.
2. The OTC does not have a separate C & A (Conciliation and Arbitration) Scheme and is not part of the Civil Service C & A Scheme.
3. The Union contends that by failing to address the issue at a Rights Commissioner hearing the OTC is denying the Worker access to a third party resolution.
4. The OTC in its Grievance Policy recognises the right, under stage 3, for the employee to take their grievance to the "Equality Officer, Labour Relations Commission, Rights Commissioner."
MANAGEMENT'S ARGUMENTS:
4. 1. The Employer maintains that the worker is a person employed by or under the State. The Worker is not therefore a "worker" under Section 23 of the Industrial Relations Act, 1990 and thus is not eligible to refer a dispute to a Rights Commissioner under the Industrial Relations Acts, 1946 to 2004.
2. The Employer contends that the Worker is employed by or under the State as her day-to-day work is controlled by the State.
3. The Employer contends that the Worker failed to follow the procedures laid down in the Grievance Policy and therefore has no right to third party resolution until the procedures are exhausted, (applies to employment rights issues only).
DECISION:
This is an appeal taken by the Union on behalf of the Employee against a Recommendation of the Rights Commissioner who found that the Claimant 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 her claim.
The claim before the Rights Commissioner relates to a dispute between the parties concerning the placement of the Claimant on the appropriate incremental point of the Assistant Principal scale on her promotion to that scale on 9th October 2006.
The employer submitted that the Claimant is a person employed by or under the State and in consequence she cannot be a proper party to a trade dispute capable of investigation by the Court under the Industrial Relations Acts 1946-2004. The Office of Tobacco Control (“the Office”) is not an independent employer as it is fully funded by the Department of Health and Children and does not have autonomy of decision-making with regard to pay, allowances, pensions, or other related matters, rather, it must defer to the Department of Finance Circulars which Department has exclusive ownership of the pay and salary scale of civil and public servants. The Claimant’s day-to-day work is controlled by the State.
The Law
The Court can only investigate a dispute which statutorily is a “trade dispute” as defined in Section (3) of the Industrial Relations Act 1946 as follows:
- “the expression ‘trade dispute’ means any dispute or difference between employers and workers or between workers and workers connected with the employment or non-employment, or the terms of the employment, or with the conditions of employment, of any person;”
- 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-
(b) a teacher in a secondary school
( c) a teacher in a national school
(d) an officer of a local authority
(e) an officer of a vocational education committee, or
(f) an officer of a school attendance committee”
Having considered the positions of both sides the Court notes the following:
•The Office’s Disputes and Grievance Procedure provides at the final stage of the procedure for referral of a grievance to “the appropriate body, e.g. Equality Officer, Labour Relations Commission, Rights Commissioner”.
•The Employer confirmed that the Claimant has no access to the Civil Service Conciliation and Arbitration Scheme. It confirmed that other than the right to refer an employment rights issue under employment statutes to the various “appropriate bodies” the Claimant has no avenue of redress outside of the internal appeal process.
•The Office is governed by The Public Health (Tobacco) Act, 2002. Section 29(2) states:
- The terms and conditions of service of a member of the staff of the Office shall, with the consent of the Minister and the Minister for Finance, be such as may be determined from time to time by the Office.
•The Claimant’s employment may be terminated by the employer by the giving of notice.
In the case ofCentral Bank of Ireland v. Martin Leo Gildea[1997] 2.I.L.R.M. 391 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 the 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 Regulation 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 under the State.
Conclusion of the Court
The Court finds that the Claimant is not employed by the State or by a Minister of the State, she is employed by the Office and her terms and conditions of employment are determined by the Office, not by the Civil Service Regulation Acts, 1956-2005.
The Court is satisfied that the Claimant is employed by an independent State agency and is a “worker” for the purposes of the Industrial Relations Act 1990 having regard to the facts of the matter and taking account of the Office’s position on the non-admissibility of her claim under the Industrial Relations Acts1946 to 2004 coupled with its position on her non-access to the Civil Service Conciliation and Arbitration Scheme. The Court has no hesitation in finding that the Claimant has the right to have her claim heard and therefore the Court has jurisdiction under the Industrial Relations Acts 1946-2004.
The Court finds in favour of the Union’s appeal and overturns the Rights Commissioner’s Recommendation. The Court will now proceed to hear the Claimant’s substantive claim.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
27th September, 2010______________________
MG.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Madelon Geoghegan, Court Secretary.