The Gazette 1987

GAZETTE

JULY/AUGUST 1987

ATTENTION

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(in first three years)

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I 111: R ( ) l \ l ) f g j H A L L PRLSS

On appeal to the High Court the

Health Board argued that a

psychiatric

nurse must

employed either as a temporary or

as a permanent officer — the Board

only had power to appoint her as

a temporary officer for a fixed

term. Mrs. Quigley argued that she

was a 'servant' within the mean-

ing of Section 14 of the Health Act,

1970 — thus, bringing her within

the scope of the Unfair Dismissals

Act, 1977. Section 14 provides

that a Chief Executive Officer of a

Health Board may appoint 'officers'

or 'servants'; section 15 of the

same Act provides that the Local

Authorities (Officers and Em-

ployees) Acts, 1926 and 1940

apply to the appointment of of-

ficers of Health Boards as the

Minister with the consent of the

Local Appo i n tmen ts Commis-

sioners may determine. Psychiatric

nurses have been defined by the

Minister as 'minor officers'. The

Local Gove r nment (Officers)

Regulations 1943 (No. 161 of

1 943) provide for the appointment

of temporary officers. A temporary

officer is defined as meaning an of-

ficer who is appointed to hold an

office

(inter alia)

for a specified

period . . .

Barrington, J. considered that

she was not a 'servant' as by

custom and practice psychiatric

nurses are officers not servants —

servants 'discharge minor and sub-

ordinate

du t i es'

mental

hospitals, e.g. maids, caretakers

etc. Thus, a psychiatric nurse is

either a temporary or a permanent

officer. Accordingly, the Health

Board succeeded in its appeal and

Mrs. Quigley was held not to fall

within the scope of the Act.

The case of

Mid-Western Health

Board -v- Ponnampalam

was

decided in a similar manner. Mr.

Ponnampalam had been working as

a temporary consultant surgeon for

20 months from February, 1978 to

October, 1979 when he was

notified that his appointment

would discontinue as a permanent

surgeon had been appointed. The

reason why a temporary locum

was appointed for that period was

because all permanent appoint-

ments have to go through the Local

Appointments Commission which

takes some time. He brought a

claim that he was unfairly dis-

missed and the Employment Ap-

peals Tribunal awa r ded him

re-instatement. As in the

Quigley

case, sections 14 and 15 of the

Health Act, 1970 and the Health

Officers Order, 1958 (No. 47 of

1958) apply; that Order specifies

lists of major offices including all

senior positions. Accordingly, on

appeal it was held he was an of-

ficer and the Health Board suc-

ceeded.

There have been other claims

under the Unfair Dismissals Act,

1 977 which have determined that

temporary employees were 'tem-

porary officers' of Health Boards,

notably

O'Sullivan -v- Western

Health Board

(clinical psycholo-

gist),

Gallagher -v-

Western

Health Board

(ophthalmic nurse).

Apprentices

The Unfair Dismissals Act (Section

4), provides that it does not apply

to the dismissal of a person who is

or was employed under a statutory

apprenticeship (i.e. an apprentice-

ship under the Industrial Training

Act, 1967) if the dismissal takes

place within six months after the

commencement of the apprentice-

ship or within one month after the

completion thereof. In

McNamara

-v- Cast/e/ock Construction

and

Development

Limited,

it was

contended that the claimant,

employed as a third year appren-

tice, fell outside the scope of the

Act, because he had less than one

years service, and more than six

months service. It was held that he

had a viable claim although having

less than one years service, he had

more than six months service.

The Redundancy Payments Act,

1967 (Section 7(4), 1967 Act) pro-

vides that an apprentice can be dis-

missed within one month of the

completion of his apprenticeship

and not be entitled to a redundan-

cy payment. Employers must en-

sure that when they look at the

date of such dismissal, they include

the notice period i.e. it must expire

prior to the end of that one month.

Equality

There are no service or weekly hour

requirements for employees to fall

within the scope of the Anti-

Discrimination (Pay) Act, 1974 and

the Employment Equality Act,

1977. Section 2(3) of the 1974

Act provides that an employer can

pay different rates of pay on

grounds other than sex. In a

number of cases female part-time

employees sought equal pay for

performing 'like work' with full

time male employees. In

Two

Female Employees -v- Dunnes

195