INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969
DEPARTMENT OF FOREIGN AFFAIRS
(REPRESENTED BY CHIEF STATE SOLICITORS)
- AND -
(REPRESENTED BY O'MEARA, GERAGHTY MCCOURT (SOLICITORS))
Chairman: Mr Flood
Employer Member: Mr Keogh
Worker Member: Ms Ni Mhurchu
1. Alleged discrimination.
2. The complainant was employed by the Department of Foreign Affairs as a bilingual secretary/shorthand typist in 1964 and was based in Paris. The complaint concerns the alleged serious disproportionality between the status and salary she was paid for the work she carried out compared to the established officers in the Department. Efforts made by her Solicitor to have the matter dealt with by the Labour Relations Commission were objected to by the Department of Foreign Affairs and she is now trying to process her claim through the Labour Court. The Chief State Solicitors Officer, acting for the Department of Foreign Affairs, submitted that there was a fundamental jurisdictional issue to be argued before the Court as to the entitlement of the Court to deal with the matter. The Court heard the case on the 17th November, 2000.
EMPLOYER'S ARGUMENTS ON JURISDICTION POINT:
3. 1. The claimant has no right of recourse to the Labour Court.
2. The 1956 Civil Service Commissioner's Act specifically excludes from its provisions those people employed in a clerical or ancillary capacity in the Department of External (now Foreign Affairs) abroad excluding Britain. The claimant is employed is such a capacity and, therefore, the provisions of the act do not apply to the claimant.
3. Under Section 23 of the Industrial Relations Act, 1990, persons employed by or under the State are specifically excluded from the definition of worker. The claimant is a person employed by or under the state in the Embassy at Paris and, therefore, cannot avail herself of the services of the Court under the Industrial Relations Acts 1946 to 1990.
CLAIMANT'S ARGUMENTS ON JURISDICTION POINT:
4. 1. The onus of proving that the claimant does not come within the provisions of the Industrial Relations Act, 1990 lies on the employer.
2. The claimant is not a civil servant rather she is locally recruited staff of the Embassy abroad.
3. Because she is locally recruited and works in the Embassy, she has no access to French Law or French Industrial Relations machinery.
4. Because she is governed by the Provisions of the Civil Service Commissioners Act 1956, she cannot avail of the Civil Service Conciliation and Arbitration machinery.
5. There must be a presumption that persons in the claimant's position must be entitled to access the Court as otherwise they would have no recourse to any machinery statutory or otherwise for processing industrial disputes.
It is common grounds between the parties that the plaintiff is not a civil servant and, therefore, cannot avail herself of the Civil Service Conciliation and Arbitration scheme.
There are differing views as to the exact capacity in which the claimant operates. The employer states that she is employed as clerical staff. The claimants submits that the proper term is locally recruited staff.
The question the Court has to decide is whether the plaintiff is a "worker" within the definition contained in Section 23 of the Industrial Relations Act, 1990. This Act specifically excludes from the definition of worker in Section 23(1)(a) - a person who is employed by or under the state.
The claimant is employed in the Irish Embassy in Paris. Her salary is paid by the state and she is subject in her day to day employment to the control of the Embassy.
The claimant has urged the Court to find that there must be a presumption that because the claimant is unable to avail of the Industrial Relations machinery within the Civil Service, she must then be able to avail herself of the Labour Court.
The Court after careful consideration upholds the employer's submission that the claimant is precluded from bringing her case to the Labour Court by virtue of her employment status.
The Court finds that she does not fall within the definition of worker in Section 23 of the Industrial Relations Act 1990 being excluded from that definition under Section 23(1)(a) as a person who is employed by or under the State.
However, the Court in so doing has a major concern that any employee particularly one employed by or under the State, should in this era of extensive employment legislation have no mechanism for pursuing a grievance such as the claimants. The Court understands that there are now approximately 300 employees of the State in such a position.
The Court while finding for the Employer in this case, strongly recommends that a mechanism be put in place to deal with the claimant's grievance as has been done for other workers similarly excluded.
Signed on behalf of the Labour Court
29th January 2001______________________
Enquiries concerning this Recommendation should be addressed to Helena McDermott, Court Secretary.