Labour Court Database __________________________________________________________________________________ File Number: CD89222 Case Number: AD8934 Section / Act: S13(9) Parties: BOYERS & COMPANY LIMITED - and - IRISH DISTRIBUTIVE AND ADMINISTRATIVE TRADE UNION |
Appeal by the Union against Rights Commissioner's Recommendation No. CW6/89.
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__________________________________________________________________
CD89222 APPEAL DECISION NO. AD3489
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: BOYERS & COMPANY LIMITED
and
IRISH DISTRIBUTIVE AND ADMINISTRATIVE TRADE UNION
SUBJECT:
1. Appeal by the Union against Rights Commissioner's
Recommendation No. CW6/89.
BACKGROUND:
2. The worker concerned commenced her employment in the Company
in May, 1977 as a sales assistant. In February, 1988, the Company
and the Union negotiated a voluntary redundancy scheme which
provided for 11 redundancies. The claimant was among those who
volunteered and she was subsequently selected as one of the 11 to
be let go. However, before the redundancy programme was
implemented, the claimant's health deteriorated significantly
(details supplied to the Court). Following consideration of the
options open to her, the claimant chose the early retirement plan
available under the Arnotts Group Pension Scheme (to which she had
contributed at a rate of 9.50% of gross salary). Having sought
medical opinion, it was agreed that the first symptoms of the
claimant's illness showed in March, 1987, and accordingly
ill-health pension was paid from the 23rd March, 1987, based on
notional service up to the age of 65, giving her a 2/3rd pension.
Arrears of #7,621.38 (subject to tax) were paid in September,
1988. Her initial pension per annum was #5,287.76.
3. In September, 1988 the Union wrote to the Company requesting
payment of the appropriate redundancy figure in addition to her
pension. The Company rejected this and in January, 1989, the
Union referred the matter to a Rights Commissioner for
investigation and recommendation. The Rights Commissioner, having
investigated the dispute, issued the following findings and
recommendation on the 10th March, 1989:-
"I accept that the circumstances of this dispute must be a
matter of some distress to the claimant. That however must
be beside the point when it comes to be decided whether she
has been treated rightly and fairly from an industrial
relations point of view. I do not believe that she has been
denied any proper benefit or that the Company has treated her
unfairly. It seems to me that the termination of her
employment cannot be regarded as part of the 1988 redundancy
programme.
I recommend that the Union and the claimant accept that the
Company has fully discharged its obligations to her and that
no redundancy amount should be paid in addition to the early
retirement pension."
The recommendation was not acceptable to the Union and it was
appealed to the Labour Court under Section 13(9) of the Industrial
Relations Act, 1969. A Court hearing was held on the 20th April,
1989.
UNION'S ARGUMENTS:
4. 1. The Company was originally prepared to pay approximately
#9,000 to dispense with the claimant's services. As a direct
result of her preference for the pension option, the Company
lost her services and saved the #9,000 originally set aside
for this purpose. Furthermore, the Company requested
agreement to fill the redundancy vacancy which existed
following the claimant's decision to opt for the pension
rather than the redundancy. The Union agreed to the Company's
request that part-time jobs be introduced where full-time jobs
previously existed.
2. In view of the most unusual and unhappy circumstances of
this case, it is not unreasonable to seek payment of some of
the money originally earmarked for her redundancy. Cases such
as this are sufficiently uncommon as to be unique. The Union
is not seeking to create a precedent but given the claimant's
circumstances exceptional treatment is warranted.
COMPANY'S ARGUMENTS:
5. 1. The Company announced voluntary redundancies in February,
1988. The scheme was voluntary and the terms were negotiated
with the Union on behalf of the employees. Eleven
redundancies were agreed and the equivalent number was
selected from among the volunteers. The claimant was among
those selected. However, before the redundancy was
implemented her health deteriorated significantly. The
possibility of her being entitled to a disability pension was
then investigated. In order to attain a disability pension an
employee would obviously have to be a staff member and thus
her redundancy was not proceeded with. It was likely but not
automatic that a disability pension would be payable provided
the necessary procedures were complied with. To ensure this,
she opted to remain on the staff. Her place on the redundancy
list was taken up by another employee and that redundancy was
implemented accordingly. When she left on disability pension
she was replaced.
2. The worker qualified for disability pension in full under
the Company's pension fund rules as the sole reason for
termination was her inability to continue working due to ill
health. Her employment was not terminated by reason of
redundancy and it was accepted by both parties at the Rights
Commissioner's hearing that there was no entitlement to a
redundancy payment under the Act. The right to remain on the
redundancy list was forfeited by the decision to choose the
pension. Furthermore, her place was taken up by another
employee so the Company bore the intended cost of the
redundancy scheme.
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
Nicholas Fitzgerald
_______________________
5th May, 1989 Deputy Chairman.
D.H./J.C.