FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : UNIVERSITY COLLEGE DUBLIN - AND - A WORKER (REPRESENTED BY GREEN & COMPANY SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Various Issues
BACKGROUND:
2. The Claimant referred his case to the Labour Court on the 16th November, 2010. A Labour Court hearing took place on the 20th January, 2011. A preliminary point was raised by the Employer at the outset of the hearing regarding the Claimants status as a worker.
WORKER'S ARGUMENTS:
3. 1 TheEmployer created a situation where the Claimant could not pursue his claim due to ongoing negotiations regarding his pension.
2 The Claimant is an honorary Professor Emeritus.
EMPLOYER'S ARGUMENTS
4. 1 The Claimant is not a worker as defined in the Industrial Relations Acts 1946-2004 as he is retired.
2 The Employer rejects any allegation that it frustrated this claim.
RECOMMENDATION:
At the commencement of the hearing the representative of the College submitted that the Court lacked jurisdiction to investigate this dispute because the Claimant, on whose behalf the claim was brought, was not a worker within the meaning of the Industrial Relations Acts 1946-2004.
That submission was based on the fact that the Claimant retired from his post with the College on 31st January 2008 in accordance with the College’s pension scheme.
The Court can only investigate a dispute which is a trade dispute within the statutory meaning of that term. The relevant definition of those terms is to be found at 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;"
It should be noted that in order for a dispute to be a trade dispute it must involve a "worker". The term "worker" is defined for present purposes by Section 23 of the Industrial Relations Act 1990, as follows:-
"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-
[not relevant]
This Court previously considered the question of whether a dispute involving a person who is retired from the workforce is capable of constituting a trade dispute within the meaning of the Industrial Relations Acts 1946-2004. In 1974 and again in 2001 the Court sought and obtained advice from the Attorney General on this question. On both occasions the import of the advice was that a person who is retired (as opposed to temporarily unemployed) cannot be regarded as a worker and cannot be party to a trade dispute capable of investigation by the Court. The position of the Court on that point was set out in Recommendation LCR16970,Forfás and A Workeras follow:-
“The Court was informed by the respondents that they had discussed the case with the Department of Enterprise, Trade and Employment, the Department of Finance, and the Attorney General.
They informed the Court that the Attorney General had advised that the Labour Court had no jurisdiction to deal with this case. There was also a dispute on whether the Labour Relations Commission had the employer's agreement to refer the case to the Labour Court.
The Court adjourned the hearing to seek the Attorney General's advice as to whether it had jurisdiction to hear the claimant's case.
The Court has now been advised that it is "entitled to investigate a matter which arose prior to an individual's retirement and which was referred to the Labour Relations Commission or Labour Courtpriorto the individual's retirement."
In accepting this decision, the Court has a major concern that a large number of people will have no redress in situations of dispute between themselves and their previous employer, even in circumstances where commitments made are not subsequently honoured.
The Court, therefore, strongly recommends that a mechanism be put in place to address situations as outlined above.”
The advice of the Attorney was adopted and applied by this Court in a number of cases in which the claimant was retired.
The dispute was referred by the Claimant to the Court on 10th November 2010.
Ms. Niamh McGowan, B.L., instructed by Greene & Co., Solicitors for the Claimant, submitted that the circumstances of this case were different to the Forfás case as she claimed firstly that the Claimant was obstructed by the College in submitting his claim for salary arrears due to separate negotiations which were ongoing concerning his retirement pension. Secondly, Ms. Mc Gowan stated that there were significant personal reasons for the delay in referring his case to the Labour Court.
The College denied that the Claimant was prevented from pursuing his claim for salary arrears due to his negotiations on his pension entitlements. It held that his claim was not formally submitted to the College until 13th July 2010, over 18 months after he retired and over two years after his pension negotiations had been finalised to his satisfaction.
The Court notes that while the pension negotiations were ongoing for some time, they were finally resolved in May 2008 and he did not retire until 31st December 2008, some seven to eight months later.
Since his retirement the Claimant was made an honorary Professor Emeritus. The Court is of the view that this does not change his principal way of life or alter his primary status as a retiree.
Having considered the matter carefully the Court has decided that it must adopt the same approach as was adopted in theForfáscase. The dispute undoubtedly arose prior to the Claimant's retirement. However, it was not referred to the Court until 10th November 2010, almost two years after his retirement.
The Court cannot actultra viresits statutory powers. Accordingly, acting on the advices received from the Attorney General on this point, the Court must decline jurisdiction in this case.
Signed on behalf of the Labour Court
Caroline Jenkinson
11th February, 2011______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to David P Noonan, Court Secretary.