ADJ-00009707

ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference: ADJ-00009707

Parties:

	Complainant	Respondent
Anonymised Parties	A Civil Servant	A Government Department

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00012727-001	23/07/2017

Date of Adjudication Hearing: 18/10/2017

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 13 of the Industrial Relations Acts 1969 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

It was accepted by the Parties that the Respondent’s Preliminary issue regarding Jurisdiction was crucial to the progression of the case. If accepted the substantive case could not be considered.

1: Summary of Complainant’s Case:

The Complainant alleged unfair treatment and mal administration by the Civil Service and specifically the Public Appointments Service in regard to a promotion competition in which he was a candidate in late 2016 and early 2017.

2: Summary of Respondent’s Case:

2:1 Preliminary issue

As the Complainant is a Civil Servant and as such following Section 23 (1) of the Industrial Relations Act 1990 is precluded from bringing proceedings to an Adjudication Officer under the Industrial Relations Acts.

Relevant quote is below

Industrial Relations Act,1990

PART III

Industrial Relations Generally

“ worker”.

— (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 F2 [ (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.

The accepted interpretation of this Section by Kerr, among others, (Kerr – The Trade Union and Industrial Relations Acts -5^th edition 2015) P220 -221 is that Civil Servants are not “workers” within the meaning of Section 23 (1) above: they are excluded from that definition because of the status attributed to them under the 1956 Civil Service Regulation Act i.e. they are holders of an office to which they are appointed by the Minister for Public Expenditure and Reform.

3: Findings and Conclusions:

Consideration of Preliminary Issue

The Complainant is clearly a Civil servant “employed by or under the State”.

Accepting the provisions of Section 23 (1) of the Industrial Relations Act, 1990 I do not have jurisdiction to hear this complaint.

Accordingly, I did not consider the remainder of the complaint.

4: Recommendation:

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

I do not have jurisdiction to hear this complaint.

Dated: 20 November 2017

Workplace Relations Commission Adjudication Officer: Michael McEntee

Key Words: