ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000472

Dispute for Resolution:

Date of Adjudication Hearing: 9th March 2016

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On the 28^th October 2015, the complainant referred a dispute to the Workplace Relations Commission pursuant to section 13 of the Industrial Relations Act, 1969. The complainant is an established civil servant and the complaint relates to bullying and harassment in her workplace, a Government Department.

The disputed was scheduled for adjudication on the 9^th March 2016. The complainant attended in person and was accompanied by a union official, acting in a personal capacity. The Personnel Officer attended for the respondent.

In advance of the adjudication, the respondent signaled that the complainant was not entitled to avail of the Industrial Relations Act as she was an established civil servant. The complainant submitted in reply that this exclusion has been amended by the Workplace Relations Act.

In accordance with section 13 of the Industrial Relations Act, 1969 following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.

Complainant’s Submission and Presentation:

The complainant outlined that she remained a civil servant within the Department but that her career had stalled following issues she had raised regarding bullying and harassment. She outlined that her complaints and grievances had not been adequately dealt with and that she had suffered detriment for making them. She asked for various forms of redress, including that certain PMDS scores be increased.

In reply to the submissions of the respondent relating to jurisdiction, the complainant outlined that it was the intention of the Oireachtas in passing the Workplace Relations Act that civil servants be able to access the State's industrial relations bodies. She referred to Dáil debates, where Ministers had made speeches in this regard. She also referred to section 86(2) of the Workplace Relations Act, 2015, which has deleted certain words from section 23 of the Industrial Relations Act. She did not agree with the respondent that the amendment introduced by the 2015 Act required a Ministerial Order to bring in civil servants within the scope of the Industrial Relations Acts.

Respondent’s Submission and Presentation:

The respondent is a Government Department and the employer of the employee. It submitted that the amendment contained in the Workplace Relations Act deleting certain words in section 23 of the Industrial Relations Act and ended the automatic exclusion of established civil servants from accessing the Industrial Relations Acts. It was submitted that there was a further step required, that of designation by the Minister for Public Expenditure and Reform of any excluded group within the definition of “worker” provided in section 23 of the Industrial Relations Act, 1990. Civil servants were employed by the State and therefore excluded by operation of section 23 (1)(a). They could now be designated as falling within the definition if an Order was made pursuant to section 23(3). The Personnel Officer said that no such Order had been made and he was also unaware of any other Order made pursuant to section 23(3). The Personnel Officer acknowledged that the complainant retained access to the internal civil services complaints procedure, even if this jurisdiction issue was resolved in the respondent's favour.

Findings and reasoning:

The complainant wishes to avail of the Industrial Relations Acts to remedy serious issues of bullying and harassment she asserts that she has encountered in her workplace. The respondent, a Government Department, replies that the complainant, as an established civil servant, cannot, now, avail of this process.

As amended, section 23 of the Industrial Relations Act, 1990 provides for the following definition of “worker”:

“23.—(1) In the Industrial Relations Acts, 1946 to 1976, and this Part, “worker” means any person aged 15 years or more who has entered into or works under (or, where the employment has ceased, worked under) a contract with an employer, whether the contract be for manual labour, clerical work or otherwise, whether it be expressed or implied, oral or in writing, and whether it be a contract of service or of apprenticeship or a contract personally to execute any work or labour including, in particular, a psychiatric nurse employed by a health board and any person designated for the time being under subsection (3) but does not include—

(a) a person who is employed by or under the State,

(b) a teacher in a secondary school,

(c) a teacher in a national school,

(ca) a teacher employed by an education and training board

…

(3) The Minister for Finance may from time to time—

(a) designate for the purpose of subsection (1) any persons (other than established civil servants within the meaning of the Civil Service Regulation Act, 1956 ) employed by virtue of section 30 (1) (g) of the Defence Act, 1954 , or employed by or under the State, and

(b) cancel the designation of any persons under this subsection.

…

The words crossed out are the words deleted by section 86(2) of the Workplace Relations Act, 2015. This provision was commenced by S.I. 410/2015. I think that the wording is clear. It is perfectly capable for civil servants to avail of the Industrial Relations Acts once they are so designated by the Minister for Public Expenditure and Reform. The complainant referred to a Ministerial statement made at Second Stage of the Workplace Relations Bill and here the Minister states that this is subject to the designation by the Minister for Public Expenditure and Reform.

The scope of section 23 has been expanded by the inclusion of categories of public servant, for example S.I. 264/1998 allowed for disputes from officers of local authorities and health boards. Pursuant to the amendment contained in the Workplace Relations Act, the relevant Minister must first make a designation before a worker falls within the purview of the Industrial Relations Act.

The respondent asserts that no such designation has taken place. While the process of designation does not appear to require a Statutory Instrument, it does require an act of designation by the relevant Minister. Given that there is no evidence that such designation has been made, at the date of drafting this report, it follows that the dispute cannot proceed to adjudication.

Decision:

In accordance with section 13 of the Industrial Relations Act, 1969, I make the following recommendation in relation to the dispute referred by the complainant.

For the reasons outlined in the report, the dispute cannot proceed to adjudication for want of jurisdiction.

Dated:   24^th August 2016