Labour Court Database __________________________________________________________________________________ File Number: CD87546 Case Number: AD8779 Section / Act: S13(9) Parties: JAMES MCMAHON LTD - and - MPGWU |
Appeal by the Company against Rights Commissioner's Recommendation No. CM,17641.
Recommendation:
6. Having considered the submissions made by the parties, the
Court finds no grounds for altering the Rights Commissioner's
Recommendation which it upholds.
The Court so decides.
Division: Mr Fitzgerald Mr Shiel Mr O'Murchu
Text of Document__________________________________________________________________
CD87546 THE LABOUR COURT AD7987
Section 13(9) INDUSTRIAL RELATIONS ACT, 1969
APPEAL DECISION NO. 79 OF 1987
PARTIES: JAMES MCMAHON AND COMPANY LIMITED
(Represented by the Federated Union of Employers)
and
MARINE PORT AND GENERAL WORKERS' UNION
Subject:
1. Appeal by the Company against Rights Commissioner's
Recommendation No. CM,17641.
Background:
2. The worker concerned commenced employment in the Company in
1974 and has been on certified sick leave since February, 1984.
The Union claim that as he was in work at the commencement of
negotiations for a productivity agreement he should be allowed
volunteer for redundancy. It further argues that his name was on
the original redundancy list and that he should be given the sum
of #3,120. This was rejected by the Company and as no local level
agreement could be reached, the Union referred the matter to a
Rights Commissioner for investigation and recommendation.
3. The Rights Commissioner, having investigated the dispute on
the 13th January, 12th March, and 24th April, 1987, recommended as
follows on the 28th April -
"The offer of employment is unlikely to be of any value to him
and it appears that he does not qualify for any statutory
redundancy payments. Consequently he ought be given an ex
gratia severance payment on compassionate grounds provided it
is in full and final settlement and inclusive of any
statutory entitlement. I recommend #1000".
This recommendation was unacceptable to the Company which appealed
it to the Labour Court under Section 13(9) of the Industrial
Relations Act, 1969, on the 7th July, 1987. A Court hearing was
held in Limerick on the 16th September, 1987.
Company's arguments:
4. (a) The Union argued that the claimant was not given an
equal opportunity to volunteer for redundancy. The
Company rejects this assertion as the terms of the
rationalisation agreement included a clause which
stated -
"the Company will consider all applications but will
reserve the right to select from applications".
(b) The claimant has never worked under the changed work
practices in the post-rationalisation situation and so
is not entitled to any benefits included in the
rationalisation package.
(c) The Company contends that in the current difficult
trading circumstances this claim cannot be afforded.
It is a cynical claim which has only served to weaken
the Company and increase costs.
(d) The Company is of the view that, having regard to
those whose employment was unfortunately terminated
under the terms of the rationalisation and also to
those who remained with the Company and adopted new
work practices, to make any payment, for whatever
reason, to any long-term absentee would be wrong
because they suffered no direct loss due to the
rationalisation and made no additional sacrifices
following it.
Union's arguments:
5. (i) The Union's claim on behalf of this worker was for
three times the Statutory Redundancy entitlements
(approximately #3,120) and as the voluntary redundancy
package included a minimum payment of #3500, it was
this sum that was claimed. He began work in 1974 and
has been out sick since February, 1984.
(ii) The Company contended that the Redundancy Payments
Act, 1967, (Clause 5, Schedule 3) specifies that
continuity of service is broken by an interruption of
78 weeks or more because of illness or injury. It is
the Union's contention that if a worker is out for 78
weeks or more that it is that period of time in which
he is absent due to illness which is not reckonable
service under the Act but all the service prior to the
break has to be taken into consideration and paid for
at the current rate of pay and the worker is therefore
compensated accordingly.
(iii) The worker concerned has supplied the Company with
certification of illness on a regular basis (weekly
and monthly) since the commencement of his illness.
(iv) The worker's name was included in the list of
employees who would have qualified for short-time
working which immediately preceded the commencement of
negotiations on rationalisation.
(v) At the finalisation of the rationalisation talks, his
name was on a list of Union members who wished to
volunteer for redundancy but the Company would not
accept this, hence the issue was referred to the
Rights Commissioner. The worker concerned is willing
to accept the Rights Commissioner's Recommendation.
DECISION:
6. Having considered the submissions made by the parties, the
Court finds no grounds for altering the Rights Commissioner's
Recommendation which it upholds.
The Court so decides.
~
Signed on behalf of the Labour Court
16th October, 1987 Nicholas Fitzgerald
D.H./P.W. Deputy Chairman