FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(8), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : LETTERKENNY INSTITUTE OF TECHNOLOGY - AND - CHRISTOPHER HUDY (REPRESENTED BY UNITE) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Alleged non-implementation of Rights Commissioner's Decision r-084441-ft-09.
BACKGROUND:
2. The Worker referred his case to the Labour Court on the 25th May, 2011. A Labour Court hearing took place on the 29th September, 2011. The following is the Court's Determination:
DETERMINATION:
This matter came before the Court by way of an application by Mr Christopher Hudy pursuant to s.15(8) of the Protection of Employees (Fixed-Term Work) Act 2003. The application related to a Decision of a Rights Commissioner made in Mr Hudy's favour and against Letterkenny Institute of Technology dated 27th January 2011. In relevant part the decision provides as follows: -
- "I find that the claimant was entitled to have his contract deemed a contract of indefinite duration after 4 years and require the employer to issue the claimant with a contract of indefinite duration with effect from 1st August 2009."
The Court was told that the claimant's employment with the respondent was terminated on 30th August 2009 and he then became engaged by the respondent under a contract for services. He was reemployed by the respondent with effect from 16th March 2011.
The claimant contends that the Decision was not implemented because he was not paid arrears of wages for the period from 30th August 2009 until 16th March 2011.
The respondent contends that the Decision was implemented. They claim that the monies paid to the claimant pursuant to the contract of services should be offset against any money due to him in respect to arrears of wages.
Conclusion
Section 15(8) of the Act, under which this matter is before the court, provides as follows: -
- "Where a decision of a rights commissioner in relation to a complaint under this Act has not been carried out by the employer concerned in accordance with its terms, the time for bringing an appeal has expired and no such appeal has been brought, the employee concerned may bring a complaint before the Labour Court and the Labour Court shall, without hearing the employer concerned or any evidence (other than in relation to the matters aforesaid), make a determination to the like effect as the decision."
It is clear from this statutory provision that the court cannot vary in any way the Decision of a Rights Commissioner to which the application relates. in this case both parties are, in effect inviting the court to modify the Decision. The respondent wishes to vary the terms so as to provide for an offset. The claimant, in effect, is inviting the court to modify the Decision so as to provide that he be reinstated without loss of pay under a contract of indefinite duration from 30th August 2009. Neither position is supported by the literal construction of the Decision of the Rights Commissioner. As is clear from the statute the Court has no jurisdiction in this case to vary the decision in any way so as to take account of the submissions of either party.
The Decision of the Rights Commissioner provides that the claimants contract be deemed one of indefinite duration with effect from 1st August 2009. At that date he was employed under a fixed-term contract. The import of the decision is thatthatcontract be deemed to be one of indefinite duration. Furthermore, the Decision requires that his permanent employment be treated as continuous from 1st August 2009. The court was told that both requirements have been fulfilled. On that basis the court is satisfied that the Decision has been carried out in accordance with its terms.
Accordingly, the Court finds that the Decision of the Rights Commissioner has been carried out in accordance with it's terms.
Signed on behalf of the Labour Court
Kevin Duffy
11th October, 2011______________________
JMcCChairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.