CD/24/102 | DECISION NO. LCR23018 |
INDUSTRIAL RELATIONS ACTS 1946 TO 2015
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES:
AND
A JOB OFFEREE
DIVISION:
Chairman: | Mr Haugh |
Employer Member: | Ms Doyle |
Worker Member: | Ms Tanham |
SUBJECT:
Appeal of Adjudication Officer Decision No's: ADJ-00048083 (CA-00059045-001)
BACKGROUND:
The Worker appealed the Adjudication Officer’s Recommendation to the Labour Court on 28th March 2024 in accordance with Section 13(9) of the Industrial Relations Act, 1969.
On 20th February 2024 the Adjudication Officer issued the following Recommendation:
“On the plain reading of the Industrial Relations Act there are two scenarios where the Commission has jurisdiction to hear a dispute when a contract has commenced and when a contract has been entered into but not Commenced.
However, in this case the contract was conditional on satisfactory references. As a reference was not satisfactory this meant that the contract did not commence and was not entered into. As the contract was not entered into, I have no jurisdiction to hear the dispute.
For this reason, I must decline jurisdiction.”
A Labour Court hearing took place on 19th July 2024.
DECISION:
Background to the Appeal
This is an appeal from a Recommendation of an Adjudication Officer (ADJ-00048063, dated 10 February 2024) under section 13 of the Industrial Relations Act 1969 (‘the Act’). Notice of Appeal was received in the Court on 25 March 2024. The Court heard the appeal in Dublin on 19 July 2024.
Factual Background
This dispute arises from a conditional offer of employment made by Microsoft (‘the Company’) to the person (‘the Appellant’) who referred the matter under section 13 of the Act to the Workplace Relations Commission and has subsequently appealed to this Court.
The offer of employment in question was made in writing to the Appellant on 30 June 2022. That offer was expressly stated to be conditional on four matters:
- Receipt of two satisfactory employment references from two previous employers;
- Verification of the Appellant’s qualifications;
- The Appellant’s ongoing right to work in the State; and
- A pre-employment medical.
The following statement occurs in the Company’s written offer of employment:
“Microsoft may withdraw its offer of employment or take any other action that it deems appropriate if any matter comes to its attention before or after the commencement of employment that may affect your employment or it the interest of Microsoft require it.”
The Company advised the Appellant in writing on 28 July 2022, that the Company was revoking its conditional offer of employment to her as it had determined that the Appellant had misrepresented her educational history and achievements.
Discussion and Decision
Section 13 of the Act gives jurisdiction to an Adjudication Officer of the Workplace Relations Commission, and to this Court on appeal, to investigate trade disputes between a ‘worker’ and an employer. The definition of ‘worker’ for the purposes of the Industrial Relations Acts 1946 to 2015 is found in section 23 of the Industrial Relations Act 1990 and it is as follows:
“’worker’ means a member of the Garda Síochána referred to in subsection (1A) andany 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”.
The Appellant received a conditional offer of employment from the Company. The Company subsequently deemed that one of the conditions that it had attached to its offer of employment was not met to its satisfaction. The Company informed the Appellant of this and withdrew its conditional offer of employment in writing. It follows that no contract of employment ever came into being between the Appellant and the Company. The Appellant did not, therefore, work “under a contract with [the] employer”. It further follows that the Appellant was not a ‘worker’ within the meaning of the Act and her dispute with the Company is not a trade dispute for the purposes of the Act. The Court, accordingly, has no jurisdiction under section 13 of the Act to investigate the matters in dispute between the Appellant and the Company.
The Recommendation of the Adjudication Officer is affirmed.
The Court so decides.
Signed on behalf of the Labour Court | |
Alan Haugh | |
FC | ______________________ |
22 July 2024 | Deputy Chairman |
NOTE
Enquiries concerning this Decision should be addressed to Fiona Corcoran, Court Secretary.