FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE WEST - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner's Recommendation r-088253-ir-09/EOS.
BACKGROUND:
2. This dispute concerns the Worker's claim that he was treated unfairly in the allocation of temporary work. This matter was referred to a Rights Commissioner for investigation and recommendation. On the 10th December, 2010 the Rights Commissioner issued the following Recommendation:-
- “[I recommend] that in addition to retaining the Claimant on the panel for temporary work, the Employer pay the Claimant a once-off payment of €3,000 compensation in response to the grievance regarding the absence of transparency with respect to the allocation of temporary work”.
On the 6th January, 2011 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 22nd March, 2012.
3. 1. The Employer did not raise any jurisdictional issue prior to or during the Rights Commissioner's Hearing.
2. The Worker does, however, have thelocus standito take this case.
3.The Worker was treated unfairly in the allocation of temporary work.
EMPLOYER'S ARGUMENTS:
4. 1. The Claimant's employment had ceased some 9 months prior to lodging his claim with the Rights Commissioner.
2. As the Claimant, therefore, did not have the status of a 'worker', the Rights Commissioner actedultra viresin hearing this case.
3. It should also be noted that consideration of this cost-increasing claim is precluded by the terms of the Public Service Agreement and the moratorium on recruitment and promotion in the Public Service.
DECISION:
At the commencement of the hearing the representative of the HSE raised issues in relation to the jurisdiction of the Rights Commissioner and by extension the jurisdiction of the Court. The HSE went willingly before the Rights Commissioner without objection. In these circumstances it is entirely incongruous for the HSE to now object to the Rights Commissioner having heard the case. The point of objection related to the HSE's contention that s.23 of the Act, properly construed, excludes a person not in current employment from the definition of a worker contained in that section. This submission was entirely misconceived and without merit. It was properly withdrawn at the hearing.
With regard to the substance of the case the court does not see any reasonable basis upon which it should interfere with the recommendation of the Rights Commissioner. Accordingly, the appeal is disallowed and the Recommendation of the Rights Commissioner is affirmed.
Signed on behalf of the Labour Court
Kevin Duffy
23rd April, 2012______________________
JMcCChairman
NOTE
Enquiries concerning this Decision should be addressed to Jonathan McCabe, Court Secretary.