The Gazette 1987

GAZETTE

JULY/AUGUST 1987

On appeal to the High Court the Health Board argued that a psychiatric nurse must be 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' in 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 29 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

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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), 30 Gallagher -v- Western Health Board (ophthalmic nurse). 31 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, 22 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

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