Complainant

Respondent

Parties

Derek Coyle

St. Vincent's Private Hospital

Representatives

John Connellan of  Carley and Connellan

Rosemary Mallon BL instructed by Arthur Cox

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 9 of the Industrial Relations (Miscellaneous Provisions) Act 2004

CA-00046388-001

24/09/2021

A hearing was held in this matter on the 25th of October 2022. The Complainant, Mr Derek Coyle, was in attendance, his solicitor John Connellan was representing him.

Mr. Neil. Twomey attended the hearing on behalf of the Respondent, represented by Ms Melissa O’Sullivan and Ms Grace Gannon of Arthur Cox, instructing Ms Rosemary Mallon BL.

A preliminary issue was raised in the Respondent submissions as to whether the Complainant was afforded the protections of Section 8 of the Industrial Relations Act 2004 and as such whether the WRC had jurisdiction to consider the matter further.

This preliminary issue was dealt with by way of oral and written submissions from the parties’ representatives.

The Complainant’s representative requested a postponement of the hearing owing to recent developments in the ongoing investigation being carried out by the Respondent.

The Complainant is a porter working for the Respondent. The Complainant contends that there has been an ongoing effort from the Respondent to dismiss long-standing porters who are active members of SIPTU.

The Complaint argues that this effort was directed at him when on 10th of August 2021 he was asked to take on a job outside his normal scope of duties in the expectation that he would refuse, which he duly did. Following his refusal the Complainant was then placed on an extraordinarily long period of paid suspension while this matter was investigated. At the time of the hearing the Complainant had been suspended for just over 14 months.

The draft investigation report into the above-mentioned incident issued to the Complainant’s solicitor late in the day before the hearing on the 25th of October 2022. On this basis the Complainant sought an adjournment so that this report might be considered and finalised before a full hearing on the matter.

The Complainant’s solicitor accepted that the Respondent engages in collective bargaining and recognised a number of trade unions.

The Respondent raised the preliminary issues as to whether or not I had jurisdiction to hear a Complaint under Section 8 of the Industrial Relations Act 2004.

The Respondent submission is that Section 8 only applies in circumstances where the Respondent Employer does not engage in collective bargaining. The Respondent referred directly to the wording of Section 8 and Tesco Ireland Limited v A Worker VCD172, a Labour Court decision where the Court found that the absence of collective bargaining is a condition precedent for the consideration of a complaint under the Section 8.

The Respondent submitted that it had a long history of excellent relationships with a number of Unions representing various grades and professions within its staff. Specifically the Respondent submitted that it had a collective agreement in place since 2010 covering its relationship with SIPTU, FORSA and the INMO. As a result of this it was submitted that I did not have jurisdiction to further consider the matter under Section 8 of the Industrial Relations Act.

The Respondent argued against the requested adjournment and reiterated that it was ready for the hearing to go ahead.  

CA-00046388-001 concerns a Complaint under Section 9 of the Industrial Relations Act 2005. Section 9 provides that a party may refer an alleged contravention of Section 8 of the Act to the WRC.

Section 8 of the Industrial Relations Act 2004 states: 8. (1) This section applies where it is not the practice of the employer to engage in collective bargaining and the internal dispute resolution procedures (if any) normally used by the parties concerned have failed to resolve the dispute and—

(a) a trade union takes steps to invoke the procedures under the Code of Practice on Voluntary Dispute Resolution under section 42 of the Industrial Relations Act 1990 (or any code of practice amending or replacing that code) in relation to a trade dispute, or

(b) such procedures have been invoked by a trade union in relation to a trade dispute, or

(c) an employee intends to request the trade union of which the employee is a member to make a request under section 2 of the Act of 2001 in relation to a trade dispute, or a trade union intends to make such a request, or

(d) such a request by a trade union has been made but the Court determines that the requirements specified in that section for the carrying out of an investigation of the trade dispute have not been met, or

(e) the Court determines that those requirements have been met and either—

(i) that investigation is being or has been carried out, or

(ii) any other procedure under the Act of 2001 consequent on or subsequent to that investigation is being or has been carried out.

It is clear that in order for a party to invoke the protections contained in this section, it must not be the practice of the employer to engage in collective bargaining. Considering first the application for an adjournment of CA-00046388-001 I am of the view that the reason given for the requested adjournment, the impending report, would have no material impact whether the Complainant could invoke the protections contained in Section 8. As such I rejected the application for adjournment.

Having regard to the submissions of both parties it is clearly common case that the Respondent employer does engage in collective bargaining.

I am of the view that this Complaint must fail as the Complainant does not enjoy the protections outlined under Section 8.

I determine that Complaint CA-00046388-001 is not well founded.