ADJ-00020119

ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference: ADJ-00020119

Parties:

	Complainant	Respondent
Anonymised Parties	A Clerical Officer	A Government Department

Representatives

Conor Quinn B.L instructed by theChief State Solicitors Office

Complaint:

Act	Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00026594-001	26/02/2019

Date of Adjudication Hearing: 23/04/2019

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 13 of the Industrial Relations Acts 1969following 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.

Background:

The complainant had been employed on probation in a department in the civil service on August 1^st 2018. His employment was terminated on November 24^th, following an internal process of review.

The respondent raised a preliminary point related to jurisdiction.

Preliminary point; Respondent’s submission

The complainant has referred the complaint under section 13 of the Industrial; Relations Act, 1969 but the respondent drew attention to the following.

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 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.

As the complainant was employed ‘by or under the state’ as a Clerical Officer he is therefore not a ’worker’ within the meaning of the Act and is excluded from making a complaint.

A number of authorities were cited including An Assistant Auditor v A Government Body (ADJ 5851) and A Civil Servant v A Government Department (ADJ 9707).

Preliminary point; Complainant’s submission

The complainant, who was not legally represented responded that as he was only on probation he was not a full employee and therefore did fall within the jurisdiction of the Act.

Subsequent to the hearing the complainant drew attention to what appeared to be a contradiction arising from remarks made by the respondent where it was stated that, on the one hand there was no mechanism to challenge the internal ‘Advisory Opinion’ other than the WRC, and yet the respondent simultaneously argued that the WC had no jurisdiction.

Findings and Conclusions:

In line with normal practice, the parties were heard on the preliminary point and I then proceeded to a full hearing of the substantive matter.

This is done to spare the parties the inconvenience of a second hearing in the event that (to take this case) the preliminary point on jurisdiction went in favour of the complainant.

However, on the simplest of readings of the legislation, consistently applied in the decisions referred to in the respondent’s submission, it allows of only one conclusion.

The complainant’s submission on the point has no merit as the statute clearly refers to a person who is simply ‘employed’; there is no requirement for any more precise status than this.

In relation to the point made subsequently by the complainant about jurisdiction the confusion is understandable, but it would be a mistake to attach too much significance to what was a throwaway remark by a member of the respondent team at the hearing.

Her comment simply meant that there were no further internal steps open to the complainant and while he did exercise his right to seek a hearing at the WRC the point about jurisdiction still remains an obstacle.

I find therefore that I do not have jurisdiction to hear the complaint and it is dismissed.

Decision:

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

For the reason set out above I do not uphold complaint CA-00026594 and it is dismissed.

Dated: June 13^th 2019

Workplace Relations Commission Adjudication Officer: Pat Brady

Key Words:

Jurisdiction; civil servant, Industrial Relations Act, 1969