FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : EIRCOM LTD - AND - ANNE MELLY (REPRESENTED BY PERSONAL & VOLUNTARY SERVICE) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms O'Donnell |
1. Appeal of an Adjudication Officer's Decision No(s). r-152073-ir-14
BACKGROUND:
2. The claim before the Court relates to the Claimant's grievance against her former employer. This matter was referred to an Adjudication Officer for investigation and decision. The Adjudication Officer found that she lacked jurisdiction to investigate the claim and on 23 March 2016 the Adjudication Officer issued the following decision:
- "As the claimant had retired from Eircom (27th Dec 2014) at the time her complaint was received by the WRC (30th Dec 2014), I have no option but to decline jurisdiction".
The Worker appealed the Adjudication Officer's Decision to the Labour Court on 11 April 2016 in accordance with Section 13(9) of the Industrial Relations Act, 1969.
A Labour Court hearing took place on 5th July 2016.
DECISION:
This is an appeal by the Claimant against an Adjudication Officer’s Recommendation which found that she lacked jurisdiction to investigate the dispute because the Claimant was not a worker within the meaning of the Industrial Relations Acts 1946-2004 (the Acts).
At the outset of the hearing, the Company made a preliminary objection to the jurisdiction of the Court to investigate the Claimant’s case on the basis that she is not a worker within the statutory meaning of that term. In consequence, it submitted that the Claimant cannot be a proper party to a trade dispute capable of investigation by the Court under the Acts.
The Court informed the parties at the outset of the hearing that it would decide on the preliminary issue raised at this stage, i.e. whether or not the Claimant is entitled to have her complaint against the Company investigated under the Acts.
Background
The Claimant retired from her employment on 27thDecember 2014. She posted her complaint under the Acts by registered post to the Workplace Relations Commission (the WRC) on 24thDecember 2014 and it was received by the WRC on 30thDecember 2014.
Position of the Parties
The Complainant disputed the Adjudication Officer’s understanding of the word “referred” as contained in the Attorney General’s advice where he contended that the Labour Relations Commission (as it was then known) or the Labour Court was “entitled to investigate a matter which arose prior to an individual's retirement and which was referred to the Labour Relations Commission or Labour Court prior to the individual's retirement."The Complainant submitted that as her complaint was posted on 24thDecember 2014, three days before she retired, it was “referred” on that date within the meaning of the Attorney General’s advice on the matter.
The Company disputed this interpretation and said it was misconceived. It submitted that as the complaint was referred to the WRC after the Claimant had retired from its employment, the Claimant was no longer a worker within the meaning of the Acts.
Conclusions of the Court on the Preliminary Issue
The Court can only investigate a dispute which is a trade dispute within the statutory meaning of that term. The relevant definition of that term is to be found at Section 3 of the Industrial Relations Act 1946 as follows:-
- "the expression 'trade dispute' means any dispute or difference between employers and workers or between workers and workers connected with the employment or non-employment, or the terms of the employment, or with the conditions of employment, of any person;"
It should be noted that in order for a dispute to be a trade dispute it must involve a "worker". The term "worker" is defined for present purposes by Section 23 of the Industrial Relations Act 1990, as follows:-
- "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 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
(d) an officer of a local authority
(e) an officer of a vocational education committee, or
(f) an officer of a school attendance committee."
This Court previously considered the question of whether a dispute involving a person who is retired from the workforce is capable of constituting a trade dispute within the meaning of the Industrial Relations Acts 1946-2004. In 1974 and again in 2001 the Court sought and obtained advice from the Attorney General on this question. On both occasions the import of the advice was that a person who is retired (as opposed to temporarily unemployed) cannot be regarded as a worker and cannot be party to a trade dispute capable of investigation by the Court. The position of the Court on that point was set out in Recommendation LCR16970,Forfas and A Workeras follow:-
- “The Court was informed by the respondents that they had discussed the case with the Department of Enterprise, Trade and Employment, the Department of Finance, and the Attorney General.
They informed the Court that the Attorney General had advised that the Labour Court had no jurisdiction to deal with this case. There was also a dispute on whether the Labour Relations Commission had the employer's agreement to refer the case to the Labour Court.
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 Court prior to 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.”
The advice of the Attorney General has been adopted and applied by this Court in a number of cases in which a claimant had retired.
The Court is satisfied that the meaning to be ascribed to the word “referred” must mean received by the WRC. It was date stamped by the WRC as having being received on 30thDecember 2014, three days after the Claimant had retired. In the circumstances the Court has come to the view that the Claimant cannot be classified as a worker within the statutory meaning of that term. Accordingly she cannot be a proper party to a trade dispute which is capable in law of being investigated by the Court.
The Court cannot actultra viresits statutory powers. Accordingly, acting on the advices received from the Attorney General on this point, the Court must decline jurisdiction in this case. Therefore the Court cannot proceed to hear the Claimant’s substantive claim.
The Court notes that the meaning of the word “worker” has been amended by the Industrial Relations (Amendment) Act 2015, effective from 1stAugust 2015, to provided access for retired persons (with certain limitations) to come within the statutory meaning of the term “worker” and therefore can be a proper party to a trade dispute.
The Court concurs with the finding and decision of the Adjudication Officer and rejects the appeal.
The Court so Decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
11th July, 2016______________________
CCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ceola Cronin, Court Secretary.