Worker

Employer

Anonymised Parties

An Individual

A Healthcare Provider

Representatives

Aisling McDevitt  of IBEC

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-00047539-001

07/12/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00047671-001

15/12/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00047671-002

15/12/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00047671-003

15/12/2021

The Worker worked for the Employer from March of 2003 until 20th May 2019 when she was placed on ill health retirement.

A hearing was held into this dispute, which was considered alongside a number of statutory complaints brought by the Worker.

 The Employer has raised a preliminary objection to the dispute being considered further. The Worker previously brought a case to the Labour Court under Section 20 of the Industrial Relations Act 1969. A decision issued in June 2022.

The Court determined that as a result of Section 26A it could not consider that matter further as it had been referred to the Court more than a year after the Worker’s retirement.

The Worker considers herself to still be an employee of the Employer on paid suspension.

The basis for this argument is that the Employer unlawfully discriminated against her, in contravention of the Employment Equality Act 2019 when they forced her to retire. The Worker brought separate WRC and Labour Court proceedings concerning that complaint and it was upheld in 2022.

The Worker further argues that the Pensions Act 2012 is not being complied with regarding her pension and as such she cannot be lawfully retired and must be suspended.

The Employer argues that the Worker was retired due to ill health in 2019. The Employer has engaged extensively with the Worker regarding their various grievances. The Worker has already comprehensively exhausted the industrial relations remedies available to her. The Employer is entitled to some closure in the matter.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

The Worker has suggested that as a result of either the Labour Court finding in their favour in a decision of 4th July 2022 concerning the Employment Equality Acts or because of the terms of the 2012 pensions act not being complied with by the Employer, she remains employed by the Employer and suspended.

 On review of the Labour Court decision on the 4th of July 2022 and the sperate Labour Court recommendation on 10th June 2022 it is clear that two separate divisions of the Court have clearly determined that the Worker’s employment ended on the 20th of May 2019 when the Employer forced her retirement on ill health grounds.

While the Labour Court decided that the Employer’s did not comply with their obligations to consider reasonable accommodation to retain the Worker in her role they chose to award her €10,000 rather than order reinstatement.

 I note the issues the Worker raises regarding her retirement and the Pensions Act. These issues may or may not be well founded however they do not change the fact that her employment was terminated on the 20th of May 2019.

 In general the Worker appears to hold the view that the if an employee is unlawfully terminated that the termination did not happen in some legal sense. This is not accurate. The Worker’s date of dismissal was 20th of May 2019.

The Worker submitted CA-00047539 on 7th December 2021. The Worker further submitted CA-00047671-001 and CA-00047671-002 and CA-00047671-003 on 15th of December 2021

As outlined already by the Labour Court, which considered this very issue concerning the same parties, the Industrial Relations Acts have been amended to include retired workers into their scope.

However, there were strict time-limits put on the Workplace Relations Commission considering such  disputes.

The Industrial Relations Amendment Act 2015, amending the 1990 Act, specifically states that: an adjudication officer or the Court shall not investigate a trade dispute to which a worker who has ceased to be employed by reason of his or her retirement is a party unless—(a) the dispute was referred to the Commission for conciliation within a period of 6 months from the date on which the worker’s employment ceased, or the date on which the event to which the dispute relates occurred, whichever is the earlier, or (b) the dispute was referred to an adjudication officer or, as the case may be, the Court within the period referred to in paragraph (a).

Taking into account the date of the Worker’s retirement and the referral of the trade disputes to the WRC I am of the view that section 26A of the Industrial Relations Act 1990 restricts me from investigating this trade dispute further.