FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HEALTH SERVICE EXECUTIVE (REPRESENTED BY CKT SOLICITORS) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Connolly Worker Member: Mr Shanahan |
1. Appeal of an Adjudication Officer's Decision No. ADJ-00001768
BACKGROUND:
2. This dispute between SIPTU, on behalf of its member, and the HSE relates to the appropriate rate of pay paid to the worker while he was suspended from his employment for a period of time. This dispute was referred to an Adjudication Officer for investigation and recommendation. On the 16th August, 2016 the Adjudication Officer issued the following Recommendation:-
- "I recommend that the complainant had an entitlement to his normal weekly earnings arising from his November 2011 personal to holder arrangement during the period of his suspension with pay under the disciplinary procedure. The respondent should therefore make good any underpayment arising".
On the 21st October, 2016 the Employer appealed the Adjudication Officer's Decision to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 21st March, 2017.
3. 1. The disciplinary policy documents of the HSE does not define the level of pay applicable during periods of suspension from duty or periods when a dismissal is under appeal.
2. The Union argues that the decision to deny the worker his premium payments is prejudicial and not in keeping with the principles of natural justice and equal treatment.
EMPLOYER'S ARGUMENTS:
4. 1. The complaint was submitted to the WRC almost 19 months after the worker ceased employment with the HSE. The Employer asserts therefore that the claim is out of time.
2. The Employer believes that the Adjudication Officer was wrong in law and in fact in determining that he had jurisdiction to extend the time limit in respect of the claim and/or that he had jurisdiction to extend the time limit in respect of the claim to a period in excess of 12 months. It is submitted that the WRC acted ultra vires its statutory powers in proceeding to hear and determine the Complainant's substantive claim in the manner in which it did.
DECISION:
This is an appeal of an Adjudication Officer’s Recommendation in a claim by the Union on behalf a Claimant that he should have been paid premium payments during a period of paid suspension. The Adjudication Officer found in favour of the Claimant and recommended that the employer should make good any underpayment arising.
The Claimant was suspended off duty with pay on 25thApril 2014 until 31stJuly 2014. He appealed the suspension, however, he later withdrew the appeal and was facilitated with early retirement instead.
The employer raised a preliminary issue and submitted that the Court had no jurisdiction to hear the case as the Claimant was not a “worker” within the meaning of the Industrial Relations Acts. The Claimant retired on 30thJuly 2014 and referred his claim to the Workplace Relations Commission under the Industrial Relations Act 1969 on 8thFebruary 2016, some 19 months after his retirement.
The employer argued that as the Claimant submitted his claim in excess of 6 months (and in excess of 12 months) since his retirement then in accordance with Section 45 of the Industrial Relations (Amendment) Act 2015 he is no longer a “worker” within the definition of Section 23 of the Industrial Relations Act 1990. Accordingly the Court has no jurisdiction to hear his claim.
In response to the arguments on the preliminary issue raised by the employer, the Union submitted that as this issue was not raised at first instance, i.e. with the Adjudication Officer, it cannot now be raised on appeal.
The Court notes that the Adjudication Officer did not address the jurisdictional point. He made the remark that“ it is unusually late in being 19 months since the alleged infringement thereby breaching the rules of fair procedure.”However, having examined the submission made by the employer at first instance, it states under the heading “Delay in Referral of Complaint”“….it is noted that it has taken in excess of 12 months from when the employment ceased for the Complainant to refer his complaint to the WRC”.
The Claimant confirmed for the Court that he is a retired person since 30thJuly 2014.
The Court heard submissions from both parties on both the preliminary issue and the substantive claim.
Section 45 of the Section 45 of the Industrial Relations (Amendment) Act 2015, which came into operation on 1stOctober 2015 provides:-
- Time limit in relation to trade dispute where retired worker is party to dispute
- The Act of 1990 is amended by the insertion of the following section after section 26:
- “26A.
(1)Notwithstanding any other provision of this or any other enactment,
but subject to subsection (2), an adjudication officer or the Court shall
not investigate a trade dispute to which a worker who has ceased to be
employed by reason of his or her retirement is a party unless—- (a) the dispute was referred to the Commission for conciliation within a period of 6 months from the date on which the worker’s
employment ceased, or the date on which the event to which the
dispute relates occurred, whichever is the earlier, or
(b) the dispute was referred to an adjudication officer or, as the case may be, the Court within the period referred to in paragraph (a).
- (a) the dispute was referred to the Commission for conciliation within a period of 6 months from the date on which the worker’s
(2) Notwithstanding subsection (1), an adjudication officer or, as the case may be, the Court may extend the period referred to in that subsection by a further period not exceeding 6 months where the adjudication officer or the Court is satisfied that the failure to refer the dispute within the period referred to in subsection (1) was due to reasonable cause.
(3) The Commission or the Court shall not investigate a trade dispute to
which a worker referred to in subsection (1) is a party where the
dispute is subject to investigation by the Pensions Ombudsman.”.
- “26A.
- The Act of 1990 is amended in subsection (1) of section 23—
- (a) by the insertion of “(or, where the employment has ceased, worked under)” after “has entered into or works under”, and
(b) by the insertion of the following paragraph after paragraph (c):
“(ca) a teacher employed by an education and training board,”.
- (a) by the insertion of “(or, where the employment has ceased, worked under)” after “has entered into or works under”, and
- The Act of 1990 is amended in subsection (1) of section 23—
These amendments to the Industrial Relations Acts have the effect of including in the definition of a “worker” a person who has retired and who refers a claim to the Workplace Relations Commission within 6 months from the date they retired, or where an extension of time is granted within 12 months of the date they retired.
As the Claimant in this case, did not refer his complaint under the Act within either of those threshold periods, the Court has no jurisdiction to hear the substantive complaint.
Accordingly, the Court accepts the argument put forward by the employer on the preliminary point and therefore upholds its appeal and the Adjudication Officer’s Recommendation is overturned.
The Court so Decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
7th April, 2017______________________
CCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ceola Cronin, Court Secretary.