Worker

Employer

Anonymised Parties

An Employee

An Employer

Representatives

Seán Carabini Fórsa

Mr Joseph Dolan Office of the Chief State Solicitor instructing Mr Desmond Ryan BL

Act

Dispute Reference No.

Date of Receipt

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

IR - SC - 00000353

09/06/2022

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

IR - SC - 00000354

09/06/2022

These matters came before the Workplace Relations Commission dated 09/06/2022. 

The aforesaid matters bearing the reference numbers IR-SC-00000353/4 respectively were referred to me for investigation.  A hearing for that purpose took place on 24/03/2003. 

The Employee commenced employment with the Employer on 01/10/2007.  The Employer is a government department.  The Employee is employed in an agency of that government department.  The Employee is at all material times a civil servant. 

IR-SC-00000353/4

The Employee’s Industrial Relations Acts complaints are manifestly unstateable and bound to fail. This is because the Employee, as an employee by Industrial Relations Act 1946, at section 4, defines the word “worker” as a person employed by or under the State, is expressly excluded from bringing an Industrial Relations Act complaint pursuant to section 13 of the 1969 Act. 

Section 13(2) of the 1969 Act provides in material part that:

“Subject to the provisions of this section, where a trade dispute … 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 [an adjudication officer]”

The ‘Principal Act’ referred to in the above section is the Industrial Relations Act 1946, section 2 of which sets out the relevant definition of ‘worker’ as including the following:

 “any person of the age of fourteen years or upwards who has entered into or works under a contract with an employer whether the contract be for manual labour, clerical work, or otherwise, 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, other than (a) a person who is employed by or under the State…” (emphasis added)

There is no dispute between the parties but that the Employee is an employee who is employed by or under the State.  In the submissions filed on the Employee’s behalf in this matter, the Employee representative seeks to argue that the above statutory exclusion is somehow circumvented, altered or affected by the Industrial Relations Act 1990 (Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work) Order 2020 (S.I. No. 674 of 2020).

The Employee’s argument in this regard is fundamentally misconceived, since primary legislation passed by the Oireachtas must always prevail over secondary legislation introduced by statutory instrument.  There is simply no basis in law for the proposition made by the Employee in her submissions in this respect and the Adjudication Officer is respectfully requested to dismiss the Employee’s Industrial Relations complaints as not being properly before the Workplace Relations Commission.

Having regard to the foregoing, the Respondent’s Solicitors have written to the Complainant’s Trade Union noting that it is clear that the Complainant has no standing to bring a complaint under section 13 of the Industrial Relations Act, 1969.

The Respondent respectfully submits that the adjudication officer can have no jurisdiction to entertain the Industrial Relations complaints pursued by the Complainant and requests that they be dismissed as not properly before the Workplace Relations Commission. 

IR-SC-00000353/4

This case has been lodged under section 13 of the Industrial Relations Act, 1969.  The Employer has not entered an objection to a hearing under this legislation.  The definition of “worker” under the Act is given at section 17, with reference to part 4 of the 1946 Industrial Relations Act.  Part 4(a) omits the following category of worker from the Act:

“a person who is employed by or under the State.”

While that is generally understood to form a prohibition on civil service workers from being able to refer grievances to the WRC under section 13 of the 1969 Act, the Employee representative contends that such grievance referrals for civil service workers are referrable if they are taken under the “Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work (2020)”.

This code was prepared and issued under powers delegated at section 60 of the Safety, Health and Welfare at Work Act 2005 and are subject to ministerial approval.  Page 3 of the code, under a section entitled “status and scope of the Code under health and safety legislation” states:

“This Code applies to all employments in Ireland irrespective of whether employees work at fixed location, at home or are mobile.”

Sections 5.1 and 6.2 state that WRC referrals under this code shall be made under section 13 of the 1969 Act.  They state:

5.1: “If full utilisation of the range of internal procedures has not resolved a bullying complaint, the matter may be referred to a WRC Adjudicator under Section 13 of the Industrial Relations Act, 1969.”

6.2: “The provision of Adjudication Services under Section 13 of the Industrial Relations Act 1969 following the exhaustion of internal (note: the grounds of a referral to an Adjudication Officer are around the conduct of an investigation in terms of fairness and adherence to fair procedures).”

The Employee representative contends that the Code, issued under the Safety, Health and Welfare at Work Act (2005) creates a route of appeal to the WRC that allows for “a person who is employed by or under the State”, in this case a civil service worker employed as a Probation Officer to have their case heard under Section 13 of the 1969 Act. 

Determination on Preliminary Matter of Jurisdiction:

The Employee’s representative was aware the Employee does not have standing under the IR Acts and sought, in his submission to the WRC received on 07/03/2023, to make the case that the statutory exclusion of civil servants from the definition of worker in the IR acts is in some way bypassed by a statutory instrument namely S.I. No. 674 of 2020 and that is the route through which a civil servant may raise a claim in the WRC in this particular context.  The Employer representative argued it is clear the Complainant has no standing to bring a complaint under section 13 of the Industrial Relations Act, 1969. 

In the normal course of events, I would proceed to hear the substantive matter and reserve my position on the preliminary argument.  My ruling on the preliminary argument would then be contained in the ensuing recommendation.   The guidance notes for a hearing issued by the WRC in July 2021 states that in the vast majority of cases the AO will take evidence in relation to the preliminary points raised and then proceed to hear the substantive claims.  The use of the word “majority” is noteworthy.   

At hearing on Friday 24/03/2023 the two IR claims IR-SC-00000353/4were unequivocally not properly before me.  This was not a situation that provided for the exercise of any discretion on my part.  If it had been the case that the preliminary argument related to, for example, the complaints being statute-barred then I would have reserved my position and continued to hear the substantive case in the event I might find reasonable cause exists to extend the time.  For completeness, the aforesaid scenario is merely presented as an example as clearly the time limit provisions of section 41 of the Workplace Relations Act, 2015 do not have application in disputes referred under the Industrial Relations Act, 1969. 

I am mindful of the case of Guerin v. SR Technics Ireland Limited [UD969/2009] where the Employment Appeals Tribunal was asked to make a decision on a preliminary matter before moving to hearing the substantive case and given the significant preliminary point raised the Tribunal moved to hear the preliminary matter first and reach a decision on same. 

Furthermore, in the case of Bus Eireann v. SIPTU [PTD8/2004] the Labour Court indicated that a preliminary point should be determined separately from other issues arising in a case “where it could lead to considerable savings in both time and expense” and where the point was “a question of pure law where no evidence was needed and where no further information was required.”

In the case of Donal Gillespie v. Donegal Meat Processers [UD/20/135] the Labour Court dealt with the matter by expressing the view that in asking for the substantive issue and the jurisdictional issue to be heard together was “akin to asking the court to exercise its jurisdiction before it determines whether or not it has jurisdiction in the first instance.”

I am satisfied it would have been not alone futile but unfair to both parties to proceed with the hearing and commence my investigation into the disputes IR-SC-00000353/4all the while knowing in advance what the outcome would be and where it is clear and unambiguous that I do not have jurisdiction.  To proceed to such a lengthy hearing in such circumstances would have been unjustified.  Furthermore, I am obliged at all times to consider that which constitutes the most efficient and effective use of the resources of the WRC. 

I considered this to be one of a minority of cases where the preliminary issue was required to be determined when it was clear I did not have jurisdiction to hear the IR claims. 

Civil servant; jurisdiction;