FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE WEST - AND - A WORKER DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner's Recommendation R-106214-IR-11.
BACKGROUND:
2. The case before the Court concerns the Worker's appeal ofRights Commissioner's Recommendation R-106214-IR-11.The dispute relates specifically to the Worker's claim that during a period of time when he undertook private studies he was incorrectly classified as having ceased employment with the Employer. The Worker contends that as a result he does not have the requisite qualifying criteria that would allow him the opportunity to apply for a permanent rostered position. The Employer rejects the Worker' claim, arguing that the Worker's employment had in effect ceased when the Worker undertook private studies. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 20th June 2012, the Rights Commissioner issued her Recommendation as follows:
"I cannot accept the Claimant's contention that he was in the HSE's employment throughout this period. Accordingly, notwithstanding the administrative deficits on the part of the respondent, I accept the respondent's assertion that the Claimant was not in their employment during the period Sept. 2004- Sept. 2005 and I recommend against the Claimant".
On the 11th July, 2012 the Worker appealed the Rights Commissioners 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 25th October, 2012.
WORKER'S ARGUMENTS:
3. 1. The Worker is of the view that his employment remained continuous while he undertook his studies.
2. The Worker has been denied promotional opportunities as a result of the break in his employment.
EMPLOYER'S ARGUMENTS:
4. 1. The Worker broke his employment for a period of eleven months when he undertook private studies. The Worker resumed employment once he had successfully completed his studies.
2. The Worker has been treated in a fair and equitable manner and at all times in accordance with the terms of a Collective Agreement reached between the Employer and SIPTU.
DECISION:
The net issue for consideration in this case relates to the application of the terms of a collective agreement between the HSE and SIPTU. When an issue arose as to whether the Claimant's service was continuous the HSE and the Union entered into discussions for the purpose of agreeing on the correct interpretation of the agreement. The agreement reached provided that the cessation of the Claimant's employment in 2004 had the effect of breaking the continuity of his employment.
In these circumstances the Court could not take an interpretation of the relevant agreement that is at variance with that of both parties to the agreement.
In these circumstances the Court affirms the recommendation of the Rights Commissioner and disallows the appeal.
Signed on behalf of the Labour Court
Kevin Duffy
16th November 2012______________________
SCChairman
NOTE
Enquiries concerning this Decision should be addressed to Sharon Cahill, Court Secretary.