FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TEAGASC - AND - A WORKER (REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Tanham |
1. Appeal Of Recommendation Of A Rights Commissioner R-127266-ir-12/JOC
BACKGROUND:
2. This dispute concerns the Workers' claim for reinstatement. This dispute was referred to a Rights Commissioner for investigation and recommendation. On the 29th August, 2013 the Rights Commissioner issued the following Recommendation:-
- "I recommend that the [Worker] should be reinstated in her post with effect from the 26th October, 2012 with no financial loss or loss of service."
On the 8th October, 2013 the Employer 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 5th December, 2013.
UNION'S ARGUMENTS:
3. 1. The Employer acted in breach of several local agreements.
2. The Employer treated the Worker less favourably than other colleagues.
3. The Worker should be reinstated.
EMPLOYER'S ARGUMENTS:
4. 1. The Worker was employed on a specific purpose contract of employment.
2. The Worker's employment was terminated according to the terms and conditions of her contract of employment.
3. The Worker's employment was not protected by the Public Service Agreement 2010-2014.
DECISION:
The matter before the Court concerns the Employer’s appeal of a Rights Commissioner’s Recommendation which found the Claimant’s employment was protected by the “Process for Filling Administrative Vacancies” Agreement made between the parties in February 2009 and by the Public Service Agreement 2010 – 2014. He recommended that she should be reinstated in her post with effect from 26thOctober 2012 with no financial loss or loss of service.
The 2009 Agreement included a clause in relation to “Job-Sharing” which stated as follows:-
- “Staff are required to apply to job share on a 12 month basis, An application to extend the job sharing should be submitted to their manager in advance of the arrangement expiring.
- •If an Admin G2 staff member wished to apply for job sharing beyond 4 years (i.e. 4x12 month periods), they will be regarded as permanent job share/part time, and the other half of their post will be available to the unit to fill on a permanent basis.”
The Claimant was employed to work on a job-sharing arrangement on a specified purpose contract which stated that she was employed for“the purposes of covering the period of time [a named permanent employee] is on job sharing”. This contract commenced on 15thOctober 2007 and terminated on 26thOctober 2012 when the named permanent employee exercised her option to return to full-time work. The Union, on behalf of the Claimant, sought to uphold the Rights Commissioner’s Recommendation.
The Employer submitted that the 2009 Agreement became redundant when the Moratorium on Recruitment and Promotions in the Public Service was introduced one month after the 2009 Agreement was completed and consequently held that it had no ability to fill the Claimant’s post as it could not increase its employee headcount. Furthermore, it held that as the Claimant’s contract came to a natural end in accordance with the terms of her contract, and the contract had never been renewed, then it was not in breach of either her statutory rights or the Public Service Agreement 2010 – 2014.
The Court is of the view that the issue in dispute was encompassed by the terms of the Agreement finalised by the parties in February 2009. The implementation of this Agreement has been halted by the subsequent imposition of a moratorium on recruitment and promotion which has had the effect of preventing implementation of the February 2009 Agreement. The Court notes that there was no communication with the Union concerning this development whereby the Employer has effectively abandoned the February 2009 Agreement. This has had adverse effects for the Claimant.
It is clear that the Moratorium on Recruitment and Promotions is a real and serious impediment to the implementation of the agreement in issue. While recognising the merit of the claim the Court is constrained by the terms of the Moratorium from recommending concession of the claim.
However, in the circumstances of this case the Court recommends that a redundancy payment, inclusive of the public sector ex-gratia terms, should be paid to the Claimant without delay.
Accordingly, the Court overturns the Rights Commissioner’s Recommendation and upholds the Employer’s appeal. The Court so Decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
17th December, 2013______________________
CCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ceola Cronin, Court Secretary.