FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TANKFREIGHT/EXEL (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr O'Neill |
1. Appeal of Rights Commissioner Recommendation No: r-071332-ir-08/TB
BACKGROUND:
2. This case concerns an appeal by the Union of Rights Commissioner Recommendation No: r-071332-ir-08/TB. The issue concerns a former employee of the Company who was initially refused access to the Company's Ill Health Retirement Scheme in 2001. He was subsequently awarded payment in 2004. He is now seeking retrospective application of the Scheme to January, 2002.
Management raised a jurisdictional point that is that there is no valid trade dispute within the meaning of Section 3 of the Industrial Relations Act, 1946 as the worker is no longer an employee of the Company. In such circumstances, it contends that the Labour Court cannot hear the case.
Management further contend that,nothwithstanding the above jurisdicitional point, the worker's application for payment of the Scheme was previously rejected as he did not meet the eligibility criteria. He was subsequently approved by the Trustees of the Scheme once he fulfilled the requirement for payment.
The issue was referred to a Rights Commissioner for investigation. On the 13th May 2009, the Rights Commissioner recommended that the Company pay the claimant €5,000 in full and final settlement of the matter.
On the 11th June 2009, the Union appealed the Rights Commissioner's Recommendation in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on 21st May, 2010.
UNION'S ARGUMENTS:
3 1 The worker sustained an occupational injury which rendered him unable to continue in his role with the Company. Approval for payment of the Ill Health Pension Scheme was refused at the time of application and was only put in payment many years later. As the worker was declared eligibe for an Invalidity Pension from the Department of Social,Community and Famiy Affairs in 2002, it is appropriate that retrospective payment of the Company's Scheme be applied from that date also.
2 The worker did try and invoke the internal dispute resolution procedures (IDRP) in relation to this complaint but was advised that the internal procedures would not adequately resolve the issues in dispute. On that basis there was no formal application to initiate the IDRP, the worker instead opting to process his dispute through the third party dispute resolution mechanisms of the State.
3 The Trustees may have been charged with administering the Scheme but payment will not commence until the Company gives its consent. In this case the Company did not give its consent initially and the trustees did not approve the application. It is, therefore, disengenous of the Company to suggest that the dispute is with the trustees of the scheme when it failed to give sanction for payment.
COMPANY'S ARGUMENTS:
4 1 There is not a valid trade dispute between the worker and the organisation. The claimant is not a worker as defined by the Act and is, therefore, no longer entitled to raise a grievance with a former employer.
2The Trustees of the Scheme were responsible for approval and payment of the workers application. As the worker was initially fit to carry out some duties he did not meet the eligibility criteria for payment. When he was subsequently rendered unable to work at all his application was approved in line with the provisions of the Scheme and he was paid from that date
3 The worker could have formally initiated the IDRP but failed to do so. There was also the option to seek the advice of the worker representative on the Board of Trustees of the Scheme who could have assisted him with his difficulties .
DECISION:
This is an appeal by the Union of a Rights Commissioner’s recommendation which awarded a compensation sum of €5,000 to the claimant in full and final settlement of his claim relating to his entitlement to the Company’s Ill Health Retirement Scheme. The Union appealed the quantum of the award.
The Company raised a jurisdictional point and held that the Court was prohibited from hearing the appeal on the basis that the Claimant was not a worker within the statutory meaning of that term. It was submitted that in consequence the Claimant cannot be a proper party to a trade dispute capable of investigation by the Court under the Industrial Relations Acts 1946 -2004.
The Claimant had an accident in June 2000 and went out on sick leave. In 2001 he applied for an ill health pension which was not granted to him at the time. A dispute on the issue was referred to the Rights Commissioner and a hearing held on 20th February 2004. At the time no Recommendation was issued. In May 2004 he was considered eligible for an ill health pension and payment commenced in November 2004. He subsequently sought retrospection back to the point he had been declared eligible for an invalidity pension by the Department of Social Welfare in January 2002.
The Court’s jurisdiction is limited to investigating a dispute which is a trade dispute within the statutory meaning of that term. The relevant definition of those terms is to be found at section 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;"
It should be noted that in order for a dispute to be a trade dispute it must involve a "worker". The term "worker" is defined for present purposes by section 23 of the Industrial Relations Act 1990, as follows: -
"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 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
(d) an officer of a local authority
(e) an officer of a vocational education committee, or
(f) an officer of a school attendance committee."
This Court previously considered the question of whether a dispute involving a person who is retired from the workforce is capable of constituting a trade dispute within the meaning of the Industrial Relations Acts 1946-2004. In 1974 and again in 2001 the Court sought and obtained advice from the Attorney General on this question. On both occasions the import of the advice was that a person who is retired (as opposed to temporarily unemployed) cannot be regarded as a worker and cannot be party to a trade dispute capable of investigation by the Court. The position of the Court on that point was set out in Recommendation LCR16970, F�rfas and A Worker as follow:-
“The Court was informed by the respondents that they had discussed the case with the Department of Enterprise, Trade and Employment, the Department of Finance, and the Attorney General.
They informed the Court that the Attorney General had advised that the Labour Court had no jurisdiction to deal with this case. There was also a dispute on whether the Labour Relations Commission had the employer's agreement to refer the case to the Labour Court.
The Court adjourned the hearing to seek the Attorney General's advice as to whether it had jurisdiction to hear the claimant's case.
The Court has now been advised that it is "entitled to investigate a matter which arose prior to an individual's retirement and which was referred to the Labour Relations Commission or Labour Courtpriorto the individual's retirement."
In accepting this decision, the Court has a major concern that a large number of people will have no redress in situations of dispute between themselves and their previous employer, even in circumstances where commitments made are not subsequently honoured.
The Court, therefore, strongly recommends that a mechanism be put in place to address situations as outlined above.
Having considered the matter the Court is satisfied that the Claimant had raised the matter with his employerandhis case was referred to the Labour Relations Commission, prior to his retirement on ill health grounds,therefore the Court can investigate the matter before it.
Having considered the submissions of both parties the Court is of the view that the decision on eligibility grounds for the payment of an ill health pension rests with the Trustees of the pension scheme, therefore the Court is further of the view that the appropriate forum for consideration of the Claimant’s request is through the Internal Disputes Resolution Procedures (IDR) under the auspices of the Pensions Ombudsman’s Office. The Court notes that the IDR process is open to the Claimant to pursue and recommends that the matter should now be followed through that process.
The Rights Commissioner’s Recommendation is varied accordingly and the Union’s appeal fails.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
10th June 2010______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.