Labour Court Database __________________________________________________________________________________ File Number: CD9233 Case Number: AD92140 Section / Act: S13(9) Parties: OMNITRON - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by the Company against Rights Commissioner's Recommendation No. CW461/91 concerning the eligibility of a worker for redundancy.
Recommendation:
In the circumstances of this case the Court is of the view that
the Rights Commissioners Recommendation is not unreasonable. On
the understanding that its decision cannot be taken as creating
any precedent the Court upholds the Rights Commissioner's
Recommendation and rejects the appeal.
The Court so decides.
Division: Ms Owens Mr Keogh Mr Rorke
Text of Document__________________________________________________________________
CD9233 APPEAL DECISION NO. AD14092
INDUSTRIAL RELATIONS ACTS 1946 TO 1990
SECTION 13(9) INDUSTRIAL RELATIONS ACTS, 1969
PARTIES: OMNITRON
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal by the Company against Rights Commissioner's
Recommendation No. CW461/91 concerning the eligibility of a
worker for redundancy.
BACKGROUND:
2. The worker was employed by the Company for over 13 years as
a cleaner/general operative in the canteen. In 1991 the Company
sought voluntary redundancies as part of a rationalisation plan.
On 30th August, 1991 the worker concerned applied for voluntary
redundancy but her application was rejected on the grounds that
she was due to retire within 5 months. The Company claims it
could not justify the payment of redundancy to someone so close
to retirement.
The Union contends that in rejecting the worker's application
the Company treated her unfairly. The Union claims that the
redundancy scheme cannot be accepted as a cost saving move as
highly skilled workers were let go under the scheme but have now
had to be re-employed.
The dispute was referred to a Rights Commissioner for
investigation and recommendation. A Rights Commissioner's
hearing took place on 16th December, 1991 and the following
recommendation issued on 20th December, 1991.
"Recommendation
I recommend that the Company offers and the worker accepts
a lump sum of half her possible entitlement under the
scheme".
(The worker was named in the recommendation).
The Rights Commissioner's recommendation was appealed to the
Labour Court by the Company in accordance with Section 36(2) of
the Industrial Relations Act, 1990. A Labour Court
investigation took place on 21st February, 1992.
UNION'S ARGUMENTS:
3. 1. Under the original rationalisation plan the worker was
the only applicant for voluntary redundancy who was not
considered by the Company. Under subsequent plans other
applicants were rejected but were happy to remain with the
Company.
2. The Union cannot accept or understand that while the
Company maintains that its reason for rejecting the
worker's application was a cost saving one it has in fact
created more expense by paying redundancy to highly skilled
staff whom it has now seen necessary to re-employ. The
Union claims that even though it was informed that the
re-employment of skilled workers was a temporary
arrangement only to fulfill a particular contract they have
in fact been working for the Company.
COMPANY'S ARGUMENTS:
4. 1. During the period of rationalisation it was agreed
with the Union that the choice of applicants selected under
the voluntary redundancy scheme would be at the sole
discretion of the Company. The Company cannot accept
that it can be dictated to in a redundancy situation. It
maintains the right to retain or release staff in what it
considers to be the best interests of the Company.
2. To have paid the particular worker a redundancy lump
sum when she was due to retire within such a short period
of time would be wrong. Such an agreement would set a
precedent whereby others could seek payment of large sums
of money on retirement. In the case of the worker
concerned the Company is satisfied that it acted correctly.
The worker was not made redundant and is not therefore
entitled to a redundancy lump sum.
3. Due to rationalisation within one of the Company's
main customers the Company no longer manufactures for that
customer but contracts workers out to the customers.
Therefore when the need arises it is necessary to take back
some of the highly skilled staff who were made redundant
in order to fill these contracts. The contracts are short
term and the workers have not been kept on in the Company.
DECISION:
In the circumstances of this case the Court is of the view that
the Rights Commissioners Recommendation is not unreasonable. On
the understanding that its decision cannot be taken as creating
any precedent the Court upholds the Rights Commissioner's
Recommendation and rejects the appeal.
The Court so decides.
~
Signed on behalf of the Labour Court
Evelyn Owens
_____________________
9th March, 1992
A.Ni.S./N.Ni.M. Deputy Chairman