FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HEALTH SERVICE EXECUTIVE - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Gratuity payment on retirement.
BACKGROUND:
2. This case concerns a claim by the Union on behalf of the Claimant for a gratuity payment on her retirement from the HSE. The HSE's position is that the Claimant is not an employee of the HSE and that she chose to move to a new employer in 2004. On the 16th January 2014 the Union on behalf of the Claimant referred the dispute to the Labour Court in accordance with Section 20(1) of the Industrial Relations Act 1969 and agreed to be bound by the Court's Recommendation.
A Labour Court hearing took place on the 7th May 2014.
RECOMMENDATION:
The matter before the Court concerns a claim made by the Union on behalf of a Claimant for a gratuity on retirement. The Claimant retired on 4thNovember 2011. On 26thJanuary 2012 the matter was referred to a Rights Commissioner for hearing under the Industrial Relations Acts 1969 - 2001, however, on 7thFebruary 2012 the HSE objected to a hearing taking place. On 18thJanuary 2014 the Claimant referred the case to the Court under Section 20(1) of the Industrial Relations Act, 1969.
At the outset of the hearing the Court considered the issue of its jurisdiction to hear the case as the Claimant is retired from the workforce and the issue was not referred to the Labour Relations Commission nor the Labour Court prior to her retirement.
In the case of“Forfás and A Worker”(LCR16970) dated 8th November 2001 this Court found that a person who is retired from the workforce cannot be regarded as a worker and the Court has no jurisdiction to investigate a case brought by such a person unless the matter (a) is one which was ongoing during the currency of the individual’s employment; and (b) was referred to the Labour Relations Commission or the Labour Court prior to the individual’s retirement. The advices from which the Recommendation was derived came from Opinions provided to the Court by the Attorney General in 1974 and again in 2001.
The Court reached its decision in the Forfás case in the following terms:-
- “The Court adjourned the hearing to seek the Attorney General's advice as to whether it had jurisdiction to hear the claimant's case.
The Court has now been advised that it is "entitled to investigate a matter which arose prior to an individual's retirement and which was referred to the Labour Relations Commission or Labour Courtpriorto the individual's retirement."
In accepting this decision, the Court has a major concern that a large number of people will have no redress in situations of dispute between themselves and their previous employer, even in circumstances where commitments made are not subsequently honoured.
The Court, therefore, strongly recommends that a mechanism be put in place to address situations as outlined above.”
This Court confirmed this finding again in the case of “University College Dublin and A Worker”LCR 19310, dated 12th August, 2008, and further again in the cases of“University College Dublin and A Worker” LCR 19422, dated 11th December 2008 and“University College Dublin and A Worker” LCR 19997, dated 11thFebruary 2011.
The Court cannot actultra viresits statutory powers. Accordingly, acting on the advices received from the Attorney General on this point, the Court must decline to issue a Recommendation in this case.
Signed on behalf of the Labour Court
Caroline Jenkinson
CR______________________
27th May, 2014.Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Jonathan McCabe, Court Secretary.