FULL RECOMMENDATION
SECTION 10 (1), INDUSTRIAL RELATIONS (MISCELLANEOUS PROVISIONS) ACT, 2004 PARTIES : TESCO IRELAND LIMITED (REPRESENTED BY IBEC) - AND - A WORKER (REPRESENTED BY INDEPENDENT WORKERS UNION) DIVISION : Chairman: Mr Foley Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appeal of Adjudication Officer's Decision No: ADJ-00001541.
BACKGROUND:
2. The Worker appealed the decision of the Adjudication Officer to the Labour Court in accordance with Section 10(1) of the Industrial Relations (Miscellaneous Provisions) Act, 2004. A Labour Court hearing took place on 13 December 2017. The following is the Determination of the Court:
DETERMINATION:
This matter comes before the Court as an appeal of a decision of an Adjudication Officer in a complaint by Barbara Maciejewska (the Appellant) made on 21stJanuary 2016 under the Industrial Relations (Miscellaneous Provisions) Act, 2004 (the Act) that she was victimised by her former employer TESCO Ireland (the Respondent) within the meaning of the Act at Section 8.
The Adjudication Officer, in a decision dated 7thJuly 2016, found that the complaint was not well founded and dismissed the complaint.
The appeal to the Court was received on 17thAugust 2016.
Preliminary matter
The Act, at Section 8 in relevant part provides as follows:
- 8.—(1) This section applies where it is not the practice of the employer to engage in collective bargaining negotiations and the internal dispute resolution procedures (if any) normally used by the parties concerned have failed to resolve the dispute and—
- (a) a trade union or an excepted body takes steps to invoke the procedures under the Code of Practice on Voluntary Dispute Resolution under section 42 of the Industrial Relations Act 1990 (or any code of practice amending or replacing that code) in relation to a trade dispute, or
(b) such procedures have been invoked by a trade union or excepted body in relation to a trade dispute, or
(c) an employee intends to request the trade union or excepted body of which the employee is a member to make a request under section 2 of the Act of 2001 in relation to a trade dispute, or a trade union or an excepted body intends to make such a request, or
(d) such a request by a trade union or an excepted body has been made but the Court determines that the requirements specified in that section for the carrying out of an investigation of the trade dispute have not been met, or
- (a) a trade union or an excepted body takes steps to invoke the procedures under the Code of Practice on Voluntary Dispute Resolution under section 42 of the Industrial Relations Act 1990 (or any code of practice amending or replacing that code) in relation to a trade dispute, or
(i) that investigation is being or has been carried out, or
- (ii) any other procedure under the Act of 2001 consequent on or subsequent to that investigation is being or has been carried out.
Decision of the Court
It is a condition precedent for the Court’s consideration of a complaint made under the Act at section 8 that ‘…it is not the practice of the employer to engage in collective bargaining negotiations…’
It is clear that this condition is not met in the within matter and the appeal cannot therefore succeed.
The decision of the Adjudication Officer is affirmed and the appeal fails.
Signed on behalf of the Labour Court
Kevin Foley
19 December 2017______________________
MNChairman
NOTE
Enquiries concerning this Determination should be addressed to John Deegan, Court Secretary.