FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : NORTH TIPPERARY COUNTY COUNCIL (REPRESENTED BY LGMSB) - AND - MR LIAM RYAN DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Mr Shanahan |
1. An appeal against a Rights Commissioner's Decision ft121763/12/MR
BACKGROUND:
2. The Claimant appealed the Rights Commissioner's Decision to the Labour Court on the 18thSeptember 2012. A Labour Court hearing took place on the 5thSeptember 2013. The following is the Labour Court's Decision:-
DETERMINATION:
This is an appeal by Mr Liam Ryan (the Claimant) against the Decision of a Rights Commissioner in his claim against North Tipperary County Council (the Respondent) under the Protection of Employees (Fixed-Term Work) Act 2013.
The complaints before the Rights Commissioner related to alleged contraventions of sections 6, 9 and 11 of the Act.
In a fully reasoned and comprehensive Decision the Rights Commissioner founds that the claims were misconceived.
The facts of the case relate to the order of precedence awarded to the Claimant in his placement on a panel maintained by the Respondent from which temporary workers are employed for road works. The panel was reconstructed in 2011 and the Claimant was placed as number 33. He had previously been placed as number 6 on a preceding panel. In consequence of his ranking on the 2011 panel he had not been offered employment with the Respondent from that panel.
The Court engaged with the representative of the Claimant in seeking to understand the legal basis upon which the claims are being pursued under the Act. It was confirmed to the Court that the nub of the case is that the Claimant was penalised contrary to s.13 of the Act in not being offered employment so as to avoid him from accruing a contract of indefinite duration under section 9(3) of the Act.
It is clear that no claim of penalisation was presented to the Rights Commissioner. The only jurisdiction which the Court has under the Act is in the determination of appeals. If the Court were to hear and determine a point not canvased before a Rights Commissioner it would be purporting to exercise a first instance jurisdiction that the Court does not have.
The Court cannot see how the facts as disclosed in the Claimant's careful submission to the Court could amount to a contravention of any of the sections actually relied upon before the Rights Commissioner.
In all of these circumstances the Court has concluded that there is no basis upon which it could interfere with the Decision of the Rights Commissioner. Accordingly the appeal is disallowed and the Decision of the Rights Commissioner is affirmed.
Signed on behalf of the Labour Court
Kevin Duffy
CR______________________
17th September, 2013.Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.