FULL RECOMMENDATION
PARTIES : MUNSTER TECHNOLOGICAL UNIVERSITY DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No:ADJ-00031330 CA-00041648-001. (2) I recommend that the Employer would pay the Employee €3000 as compensation for unfair treatment. I recommend that the Employer and Employee accept the foregoing as a final settlement of their dispute.’’ A Labour Court hearing took place in a virtual Courtroom on 18 October 2021. No matter of law arises in the appeal, but the parties chose to be represented by Counsel before the Court. The Industrial Relations Act, 1946 at Sections 20(5) and 20(6) in relevant part makes provision as follows: 20(5) Subject to this section, the Court may make rules for the regulation of its proceedings. 20(6) Rules under this section may provide for the cases in which persons may appear before the Court by counsel or solicitor and, except as so provided, no person shall be entitled to appear by counsel or solicitor before the Court. TheLabour Court Rules 2020set out the procedure to be followed in hearings of the Court in relation to appeals of decisions of an Adjudication Officer of the WRC in disputes arising under the body of employment law and, separately, the procedure for hearings of the Court in trade disputes; where the matter under appeal or otherwise referred to the Court is an industrial relations trade dispute and, by definition, not a dispute which relates to a matter of law. Those Rules, made in accordance with the Act of 1946 at Section 20(5) and available atwww.labourcourt.ie, when referring to industrial relations hearings, provide in Rule 64, as follows: 64. While it is not necessary to have representation at industrial relations cases, a party to a hearing may be represented by: - (a) A Trade Union Representative; (b) An official of a body that, in the opinion of the Court, represents the interests of employers; (c) With the consent of the Court, a practicing Solicitor or Barrister The High Court, in the Judgement of the President delivered on 17thJune 1949 in the case ofMcElroy and others v. Mortished and others, addressed the matter of appearance before the Court by Counsel in industrial relations cases comprehensively. The statutory framework which creates the supports for parties to achieve voluntary resolution of their trade disputes, can be understood as placing an emphasis on the difference between industrial relations trade disputes between workers and employers where no matter of law is at issue and disputes between workers and employers where a matter arising under the extensive platform of rights and obligations set out in employment law is at issue. In the case of this trade dispute, the parties attended the Court’s hearing intending to be represented by solicitors and barristers. The Court’s jurisdiction in the dispute is an industrial relations one arising from Section 13 of the Industrial Relations Act, 1969. Neither party had, prior to the hearing, made an application for the consent of the Court to be represented by a solicitor or Barrister or both. Such consent is, having regard to Labour Court Rules 2020 and Section 20(6) of the Act of 1946, a statutory condition precedent for representation of a party by counsel or solicitor at an industrial relations hearing of the Court. The Court, at its hearing, expressed some surprise that the matter had not been addressed by the parties in advance of the hearing but decided, out of respect for the parties and their chosen representatives, not to make an issue of the matter at the hearing and decided to give the consent required by the statute and the Rules of the Court on the clear understanding that such consent could not be interpreted as meaning that the Court intended to enter upon matters of legal argument or interpretation of law. The matter before the Court relates to a worker who was a product / process Development Engineer with the employer before applying for and being granted a career break by the employer in 2015. His role prior to commencement of his career break did involve some lecturing duties. The career break was extended each year up to 1stSeptember 2020. He notified the employer in April 2020 of his intention to return to the employment that year. At that point the worker’s previous role and indeed the area in which he had previously worked no longer existed. He was offered an alternative lecturing role with no loss of pay, benefits or any other alteration to his terms of employment. The employer submitted that, in the period since 2015, other staff who had been employed in the unit in which the worker had previously worked were, in light of the dwindling activity level in the area, re-assigned by the employer to roles similar to the role now offered to the worker before the Court. The employer asserted to the Court that no alternative role, and in particular no research role, is available in the employment such that an alternative offer of role could be made to the worker. The worker is clearly not satisfied to take up the role offered to him by the employer. Indeed, he submitted to the Court that if he could not be offered a research and development role a redundancy situation arose. He submitted that he should be offered a research and development role or redundancy. No suggestion has been made to the Court by either party that a research and development role exists in the employment that could be offered to the worker. Neither has any suggestion been made that the lecturing role offered to the worker is not reflective of his skillset or that it carries any reduction in the pay or conditions of employment he enjoyed before seeking and securing a career break in 2015. The role offered to the worker is located on the same campus where he had previously worked. In all of the circumstances, the Court, noting that no concern as regards suitability and competency of the worker for the role has been raised by either side, decides that the worker should accept the offer of resumption of his employment made to him by the employer and that the trade dispute should be resolved on that basis. The Court so decides.
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