FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : NORTH WESTERN HEALTH BOARD HEALTH SERVICE EXECUTIVE - AND - A WORKER (REPRESENTED BY MCGOVERN & WALSH SOLICITORS) DIVISION : Chairman: Mr McGee Employer Member: Mr Grier Worker Member: Mr O'Neill |
1. Regularisation of employment status
BACKGROUND:
2. The claimant, herein referred to as the worker, was employed by the Health Board as a Care Assistant attached to the Boards Community Group Homes in Sligo town from June 2000 to the 20th May 2003 on fixed term contracts. In March 2003, the worker commenced a three month contract working on a one to one basis with a Health Service Executive client. An incident of alleged assault on the worker occured on the 20th May 2003 which the worker contends resulted in him being unfit to work for a period of time. When he was deemed fit to return to work, the Health Board failed to offer further employment. The worker contends that in failing to offer further employment the Board is contradicting it's own internal procedures with respect to sick leave, injury and assault at work. He is now seeking to have his employment status regularised.
- The Board rejects the claim on the basis that the worker was employed to cover for annual leave, sick leave etc. and was covered by the standard 3 monthly contract at the that time. The workers contract was due to finish on the 20th May 2003. The Board contends that a case conference had been held on the 19th May and the worker was informed that the one to one support duties he had been performing were no longer deemed necessary and that therefore, there was no other work for him.
On the 1st April, 2004 , the worker's Trade Union referred the issue to the Labour Court, in accordance with Section 20(1) of the Industrial Relations Act, 1969. The worker was represented by McGovern & Walsh Solicitors at a Labour Court Hearing on the 26th May, 2005.- The worker agreed to be bound by the Court’s Recommendation.
- The worker agreed to be bound by the Court’s Recommendation.
3. 1. The protection of Employees ( Fixed-Term Work) Act 2003 has adopted to implement EU Council Directive 199/70 EC. This Act came into effect in July 2003. The worker had acquired rights with respect to permanent status by virtue of the long term and continuous nature of his employment.The treatment of the worker was unfair and in breach of the 2003 Act.
2. It is alleged that a telephone conversation took place where the worker stated that he was living in England. This is denied by the worker. There is a prejudicial interpretation of the events of the 20th May 2003 put forward by the H.B.
3. The worker is seeking a Full Time contract of employment, and also to award compensation for loss of earnings, which will be vouched, anxiety caused to the worker and his family, and medical expenses incurred by the worker.
HEALTH BOARD'S ARGUMENTS:
4. 1. The worker's employment had always been of a temporary nature/ as required in various locations. His last employment was with H.B was temporary and specific.
2. An investigation took place into the incident of assault and the worker was contacted to attend a meeting. The worker phoned a member of the H.B and informed him that he was not available for further work and was going to England. No meeting ever took place.
3. The termination of the workers employment was due to the temporary purpose for which he was recruited ceasing to exist and was fair in all circumstances. The worker did not make himself available for discussions regarding his employment. The Health Service Executive does not have suitable temporary work available at this time and it is not possible to regularise his employment status.
RECOMMENDATION:
The Court has considered the oral and written evidence put before it in this case. The Court was concerned that there were many conflicts of evidence and that much of what was put before it was incomplete and unsatisfactory.
On the basis of the evidence presented, the Court does not find in favour of the claimant and recommends accordingly.
Signed on behalf of the Labour Court
Raymond McGee
2nd June, 2005______________________
JO'CDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Joanne O'Connor, Court Secretary.