ADJ-00016171

Complainant

Respondent

Anonymised Parties

A State Employee

A State Organisation

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00021022-001

07/08/2018

The Complainant, a state employee, commenced her employment with the Respondent, a state organisation, on 6 April 2014.

The Complainant submitted a claim to the WRC, on 7 August 2018, under Section 45A of the Industrial Relations Act, 1946.

By way of letter dated 25 February 2019, the Respondent sought to have the claim dismissed on the basis that the Workplace Relations Commission had no jurisdiction to investigate the Complainant’s complaint under the Industrial Relations Act, 1946.  Notwithstanding this request, the Complainant’s complaint was referred to me for investigation at oral hearing.

At the commencement of the hearing, the Complainant made a request for adjournment on the basis that she had not been in a position to secure representation from her Trade Union.

Having carefully considered the Complainant’s request I decided to proceed with the hearing.

In lodging her complaint with the WRC on 7 August 2018, the Complainant alleged that she had not received her paid holiday/annual leave entitlements as set out in the Employment Regulation Order (ERO).

In subsequent correspondence to the WRC, dated 16 November 2018, the Complainant provided a more detailed submission covering the following areas:

·         Unfair access to annual leave.

·         Continued refusals to access annual leave.

·         Additional unfair obstacles to access annual leave.

·         Isolation of female employees in relation to additional annual leave.

·         Difficulties with the annual leave application process.

·         Negative health implications.

·         Grievance, as submitted in 2018 not properly dealt with.

·         Application for Work-sharing refused.

·         Non-inclusion in internal competitions.

In conclusion, the Complainant stated that she was registering her current dissatisfaction in the hope of reaching a fair and healthy working environment, to which she believes she is entitled. She further submitted that the Respondent’s non-adherence to her work conditions and working rights is leading to low morale, stress and anxiety.  The Complainant stated that she wished to have her issues dealt with in independent adjudication at the Workplace Relations Commission.

At the commencement of the oral Hearing, the Respondent raised a number of preliminary points.

Firstly, the Respondent submitted that employees of their organisation are not covered by any of the employment regulation orders referred to in Section 45A of the Industrial Relations Act, 1946. 

In addition, the Respondent submitted that employment regulation orders cannot be made in respect employees of their organisation as they are not “workers” for the purposes of the Industrial Relations Acts (1946 - 2015). It was further submitted that, as a collective citation of the Industrial Relations Acts now covers those Acts from 1946 to 2015, employment regulation orders can only be made under the Industrial Relations Act 1946 in respect of persons who are “workers” as defined in Section 23 (1) of the 1990 Act.

In summarising their position, the Respondent stated that the Complainant would not come within the definition of “worker” for the purposes of a complaint under Section 45 of the Industrial Relations Act, 1969. In support of their position in this regard, the Respondent cited the following recent decisions of the Workplace Relations Commission Adjudication service - An Assistant Auditor v a Government Body [ADJ5851] and  A Civil Servant v A Government Department [ADJ9707].

With regard to the first case cited, the Respondent submitted that the complaint made under Section 13 of the 1969 Act was dismissed as the employee in question was employed by or under the State and was therefore not a “worker” within the meaning of the 1990 Act. In the second case cited, it was submitted that the Adjudicator determined that he did not have jurisdiction to hear the matter as the Complainant, being a civil servant, was not a “worker” within the meaning of the Industrial Relations Acts.

In conclusion, the Respondent submitted that the Complainant’s complaint, in the within case, cannot proceed on the grounds that there is no jurisdiction to investigate the complaint on her behalf under the Industrial Relations Act, 1946.

Preliminary Point:

The Respondent raised a preliminary point that, as the complainant is not a “worker” as defined under Section 23 (1) of the Industrial Relations Act, 1990, I have no jurisdiction to investigate her complaint.

The above cited Section of the Act, states, inter alia, 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,

In circumstances where there is no dispute that the Complainant is a person employed by the State and in the context of the above provision of the Act, I find that I do not have the jurisdiction to investigate this claim as submitted.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I do not have the jurisdiction to hear this complaint or issue a recommendation relating to it.

Industrial Relations Act