Complainant

Respondent

Anonymised Parties

An Executive Officer

A Government Department

Representatives

Terence O'Sullivan, TJOS Solicitors

Cathy Maguire, BL instructed by Chief State Solicitors Office

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-00035361-001

20/03/2020

On March 20, 2020, the Claimant, an Executive Officer submitted a Dispute for investigation under the Industrial Relations Act, 1969.

The Dispute, outlined by the claimants Solicitor, centred on a grievance raised by email on 13 November 2018, which remained unresolved.

On the 16 June 2020 the Employer, a Government Department responded to the WRC letter of invitation to participate in Mediation/Adjudication in the following manner:

“I do not object to an investigation of the above Dispute by an Adjudication Officer “

In anticipation of hearing on December 4, 2020, both parties were invited to make written submissions. I requested sight of the claimants submitted appendices already shared with the employer and received these post hearing .

The claimant was represented by her Solicitor and the Employer by Counsel.

The Employer raised a preliminary argument of jurisdiction under the Industrial Relations Acts.

The Claimants Solicitor outlined the background to the claim. The claimant had worked in various government departments since March 1992. She had requested a mobility transfer early in November 2018.

On 13 November 2018, the claimant raised a grievance in line with Circular 11/2001 to the National Human Resource Office. The nature of the grievance surrounded a verbal allegation from a colleague in which she was dissatisfied.

The claimant was directed to advance her issue through the Dignity at Work Policy and not the grievance procedure.

All efforts at resolution, both local and national were unsuccessful and the claimant contended that she had been obstructed in her clear desire for a resolution.

The Claimant attached a chronological log of documents of inter party correspondence and she surmised that she had not been given a platform to have her grievance properly aired. This prompted the referral to the WRC.

Preliminary Issue of Jurisdiction:

The Claimants representative was keen that the claimant be heard at Adjudication as all prior attempts to resolve her grievance had been fruitless and this had impacted negatively on the claimant, who was a long serving employee of 26 years.

The claimant was aware that the employer had agreed to adjudication and had focussed on reaching a resolution through Adjudication and was disappointed to be faced with a late formulation of a jurisdictional argument.

The claimant’s representative did not formulate a response to Counsel to the Employers opening arguments on jurisdiction.

In response to questions posed by the Adjudicator, the claimant confirmed that she was paid by the State, was a member of the State Pension Scheme and did not pay PRSI. She affirmed that she had raised her grievance through Circular 11/2001.

The Employer is a named Government Department.

Preliminary Issue:

Counsel for the Employer outlined that the claimant did not have jurisdiction to process the claim as she could not be recognised as a “worker” within the meaning of the Industrial Relations Acts 1946-1990.

The claimant is employed by the State and there can be no doubt of her exclusion in terms of taking a case under the Industrial Relations Acts as she is precluded by section 23 of the Industrial Relations Act, 1990.

“worker”.

23.— (1) In the Industrial Relations Acts, 1946 to 1976, and this Part, “ worker” means a member of the Garda Siochana referred to in subsection (1A) and any person aged 15 years or more who has entered into or works under (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,

(1A) For the purposes of subsection (1) and subject to subsections (1B), (1C) and (1D), the Industrial Relations Acts 1946 to 2019 and this Part shall apply to a member of the Garda S íochána.

Counsel submitted that the WRC could not assume that consent to participate in the case should be presumed from earlier response from the Employer in June 2020. She wished to make it plain that the Employer was now objecting in writing to any investigation of the claim on the jurisdictional argument outlined in accordance with Section 13(3((b)(ii) of the 1969 Act and Section 23 of the 1990 Act.

Counsel put forward the circumstances previously considered in Central Bank of Ireland v Gildea [1997] IIR 160 at the Supreme Court, which determined that a Security Guard, employed by the Central Bank was not employed “by or under the State “to ground an application for Unfair Dismissal.

Counsel then submitted that the claimant was employed under the State and distinguished her standing from Gildea.

The Employer concluded by offering a rebuttal of the claimants claim that her grievance had not been addressed. She contended that the claimant had not taken the required steps outlined to her in a genuine attempt at conflict resolution.

I have taken some time to consider both parties submissions in this case. It is important for me to reflect on the longevity of the grievance, which remains unresolved, now some two years old.

Industrial Relations in Ireland are based on a voluntarist system. In this case, both parties were invited to an Adjudication hearing in accordance with Section 13 of the Industrial Relations Act, 1969. Such a hearing allows both sides to be heard by an independent Adjudicator, who investigates the claim. If merit is found in the claim a recommendation follows which is open to appeal by either party to the Labour Court.

In my preparation for this case, I noted that the employer did not object to the above process. I can see that this permitted the claimant to have a raised expectation that her claim would be dealt with by an independent person.

The Employer has now made a Preliminary Argument on jurisdiction and has submitted that nothing can be presumed from this earlier statement.

I must now address the arguments made by the employer on jurisdiction.

My jurisdiction in this case is set down in section 13 of the Industrial Relations Act 1969. For me to take the case to investigation, I must be satisfied that the claimant has a dispute and can satisfy the category of worker for the purposes of the 1990 Act.

Section 13 of Industrial Relations Act, 1969

(2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.

(3) (a) Subject to the provisions of this section, a rights commissioner shall investigate any trade dispute referred to him under subsection (2) of this section and shall, unless before doing so the dispute is settled—

(I) make a recommendation to the parties to the dispute setting forth his opinion on the merits of the dispute, and

(ii) notify the Court of the recommendation.

(b) A rights commissioner shall not investigate a trade dispute—

(i) if the Court has made a recommendation in relation to the dispute, or

(ii) if a party to the dispute notifies the commissioner in writing that he objects to the dispute being investigated by a rights commissioner.

(4) [ … ]

(5) [ … ]

(6) A rights commissioner may provide for the regulation of proceedings before him in relation to an investigation under this section and may provide for the cases in which persons may appear before him by counsel or solicitor and, except as so provided, no person shall be entitled to appear by counsel or solicitor before him.

I accept that the claimant has raised a dispute in Industrial relations terms in accordance with Section 8 of the Industrial Relations Act, 1990.

 “trade dispute” means any dispute between employers and workers which is connected to the employment or non-employment, or the terms or conditions of or affecting the employment, of any person;

However, the 1990 Act has some ambiguity on the definition of a worker. There is a broad generic reference to a worker in Section 8 of the Act.

However, this is particularised with added exclusions in Section 23. I note that an Garda Siochana are most recent inclusions as workers in 2019.They had previously been a named exclusion.

The Employer has relied on the exclusion clause of Section 23(3)(a)a person who is employed by or under the State and has submitted Gildea in support .

The definition of worker is having had an interesting pathway from the 1946 Act. An employee in the Civil Service currently has positive access to the WRC through several legal avenues, such as Protected Disclosure. This may be broadened at some point in the future via the impact of EU Directives on protection of persons who report breaches of Union Law 2019/1937 EU and Directive on transparent a predictable working conditions 2019/1152/ EU.

However, I must consider whether the claimant fits the description of a worker contained in the 1990 Act or whether she is prevented from advancing her case through the exclusion clause.

I have considered Justice Keanes’ comments in Gildea.

I note that the claimants Solicitor did not make a counter submission to the employer’s argument on jurisdiction and after some time indicated that the complainant was employed under the State. The Claimants answers to my questions affirmed my view that she was unfortunately excluded from advancing her claim under the Industrial Relations Act.

I find that the claimant is employed under the State and I do not hold the jurisdiction to advance my investigation beyond this juncture.

Unfortunately, I find that the “no objection “submitted by the employer in June 2020, has in real common-sense terms delayed the prospect of a fair and reasonable resolution in a long running dispute.

It is something I would strongly advise the employer to reflect on and address at their earliest convenience. I was not taken by the employer’s desire to levy an objection on day of hearing when they had relied on a contrary position for an extended period.

An employee deserves a face to face engagement on a matter such as this, particularly in this current year where staff welfare is a priority across public and private employments.

Unfortunately, I must conclude that I lack the jurisdiction to investigate this dispute. I hope the parties can return to and re-energise their collective efforts to resolve the matter to mutual satisfaction through the disputes’ resolution framework open to them.

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

The claim falls as I do not hold the jurisdiction to proceed to investigate this claim. Section 23 of the Industrial Relations Act, 1990 excludes the claimant from advancing her claim as she is employed under the State.

Jurisdiction to hear a Dispute raised by a Civil Servant