INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 17(1), PROTECTION OF EMPLOYEES (PART-TIME WORK) ACT, 2001
NOONAN SERVICES GROUP LTD
- AND -
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Mr Duffy
Employer Member: Ms Doyle
Worker Member: Ms Tanham
1. Appeal of Rights Commissioner's Decision R-130651-PT-13/EH.
2. The Worker referred his case to the Labour Court in accordance with Section 17(1) of the Protection of Employees (Part-Time Work) Act 2001. A Labour Court hearing took place on 15th October, 2014. The following is the Determination of the Court:
This is an appeal by Tomasz Dojlida (the Claimant) against the decision of a Rights Commissioner in his claim against his Employer, Noonan Services Group Limited (the Respondent), under the Protection of Employees (Part-Time Work) Act 2001.
The Claimant is a security guard. He is employed in a part-time capacity. Due to the loss of a contract by the Respondent the Claimant’s hours were reduced. The Claimant contends that full time security guards were made redundant and paid a redundancy lump sum rather than having their hours reduced. The Claimant wishes to be made redundant rather than continuing to work on reduced hours. He also contends that his hours of work should be regularised at a particular level as is the case with full-time security guards.
This claim falls to be dealt with by application of s.9 of the Act. It provides: -
(1) Subject to subsection (2) and (4) andsection 11(2), a part-time employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable full-time employee.
(2) Without prejudice tosection 11(2), if treating a part-time employee, in respect of a particular condition of employment, in a less favourable manner than a comparable full-time employee can be justified on objective grounds then that employee may, notwithstanding subsection (1), be so treated.
(3) Nothing in subsection (2) shall be construed as affecting the application of a relevant enactment, by virtue ofsection 8, to a part-time employee.
(4) Subsection (1) shall, in so far, but only in so far, as it relates to any pension scheme or arrangement, not apply to a part-time employee whose normal hours of work constitute less than 20 per cent of the normal hours of work of a comparable full-time employee.
(5) For the avoidance of doubt, the reference in this section to a comparable full-time employee is a reference to such an employee either of the opposite sex to the part-time employee concerned or of the same sex as him or her
The first question that arises in this case is whether the matters complained of by the Claimant are capable of being properly classified as conditions of employment within the statutory meaning of that term. An entitlement to a redundancy lump sum may be a condition of employment comprehended by s.9 of the Act, where an employee is dismissed by reason of redundancy. However, what is contended for by the Claimant is a right to be dismissed by reason of redundancy rather than having his hours reduced in accordance with his contract of employment. The Court cannot accept that such a putative right could come within the intendment of s.9 of the Act. Moreover, the Court has great difficulty in understanding how it could be held that being retained in employment rather than being dismissed by reason of redundancy could be classified as less favourable treatment.
Section 9 provides, in effect, that a part time employee is entitled to the same conditions of employment as a comparable full time employee, adjusted pro rata where appropriate. But the equality to which a part time employee is entitled cannot extend to working hours. The essential and defining feature of a part-time contract is that it provides for lesser working hours than a full-time contract. If entitlement to a particular level of working hours was a condition of employment within the contemplation of s.9(1) of the Act the effect would be to render part-time contracts unlawful since they would always provide for less favourable conditions than the contractual entitlement of comparable full time employees. It follows logically that such an entitlement could not be a condition of employment encompassed by s.9 of the Act.
Finally, the Court was told that the Claimant’s nominated full time comparator did, in fact have his hours reduced, although to a lesser extent than in the case of the Claimant.
For these reasons the within claim cannot succeed. Accordingly, the decision of the Rights Commissioner is affirmed and the appeal is disallowed.
Signed on behalf of the Labour Court
28th October 2014______________________
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.