FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : A HEALTHCARE PROVIDER (REPRESENTED BY ARTHUR COX) - AND - A CLAIMANT (REPRESENTED BY INDEPENDENT WORKERS UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Mr O'Neill |
1. Preliminary Hearing
BACKGROUND:
2. The issue before the Court concerns a preliminary hearing relating to a dispute between an employer and a claimant. The points at issue concern whether the claimant can be classed as "a worker" within the meaning of the Industrial Relations Act and whether the dispute is correctly classified under the Act.
The Union's position is that, although the claimant has not been an active member of the workforce for many years, he is vis a vis the dispute in question, which the Union contend is valid under the Industrial Relations Act in that it concerns issues relating to his employment at the time.
Management's position is that the claimant is not classified as a worker under the Act and that the dispute does not come within the statutory provisions as defined by s.3 of the Industrial Relations Act, 1946.
On the 23rd December 2008, the worker referred the matter to the Labour Court in accordance with Section 20(1) of the Industrial Relations Act, 1969 and agreed to be bound by the Court's Recommendation. A Labour Court hearing took place on 3rd September, 2009.
RECOMMENDATION:
The matter was referred to the Court by the Claimant pursuant to section 20(1) of the Industrial Relations Act 1969. That section enable the Court to investigate a trade dispute if the conditions specified in the section are satisfied.
The respondent in the case contend that there is no trade dispute between it and the Claimant capable of being investigated under the statutory provision under which the matter was referred.
The Court decided to hold a preliminary investigation into whether or not a trade dispute exists within the statutory meaning of that term.
The terms “trade dispute”, for present purposes, is defined by s. 3 of the Industrial Relations Act 1946 as follows: -
- “the expression "trade dispute" means any dispute or difference between employers and workers or between workers and workers connected with the employment or non-employment, or the terms of the employment, or with the conditions of employment, of any person;
There are two essential components to this definition. (1) There must be the correct parties, that is to say there must be a worker involved in the dispute and (2) there must be the correct subject matter in dispute between the parties.
The term worker is defined by s.23 of the Industrial Relations Act 1990 as follows: -
- “23.—(1) In the Industrial Relations Acts, 1946 to 1976, and this Part, "worker" means any person aged 15 years or more who has entered into or works 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…..”
It has been held that in order to come within the definition a person must be an active member of the labour force in the sense that he or she is presently employed or is temporally unemployed and seeking employment (Goulding Chemicals v Bolger[1977] IR 211). Furthermore, the dispute must be connected with the employment or non-employment of the worker or relate to some term or condition of the workers employment which is capable of being addressed in any recommendation which the Court might make.
The circumstances in which this matter came before the Court are most harrowing and have had a profound affect on the psychological and physical well being of the Claimant. It is abundantly clear, and it is readily accepted by the Respondent, that the Claimant bears no responsibility whatsoever for what occurred. It is also clear, and equally acknowledged by the Respondent, that the Claimant was a committed and dedicated employee who discharged his duties in a caring and conscientious manner.
While the Court was extremely impressed by the careful and eloquent submissions made on behalf of the Claimant and by the sincerity in which the Claimant outlined his grievances, the Court must apply the statutory provisions under which it operates as it finds them.
Accordingly the Court must conclude that those statutory provisions have not been fulfilled in this case and the matter referred to the Court does not come within the statutory definition of a trade dispute and the Claimant is not a worker as defined by the Act.
In these circumstances the Court has no jurisdiction to investigate the Claimant’s grievances and must decline to do so. In so deciding the Court would express the hope that the Respondent may find it possible, on a strictly without prejudice basis, to take some measures which could help to ameliorate the state of distress which the Claimant is clearly experiencing.
Signed on behalf of the Labour Court
Kevin Duffy
24th September 2009______________________
AHChairman
NOTE
Enquiries concerning this Recommendation should be addressed to Andrew Heavey, Court Secretary.