Labour Court Database __________________________________________________________________________________ File Number: CD92683 Case Number: AD939 Section / Act: S13(9) Parties: AVONMORE FOODS P.L.C. - and - A WORKER;JOHN M LYNCH & COMPANY, SOLICITORS |
Appeal by both parties against Rights Commissioner's Recommendation No. C.W. 206/92 concerning an enhanced redundancy payment.
Recommendation:
5. Having fully examined all aspects of this case, the Court
considers that the Rights Commissioner's recommendation should
stand unaltered.
The Court so decides.
Division: Mr Heffernan Mr McHenry Mr O'Murchu
Text of Document__________________________________________________________________
CD92683 APPEAL DECISION NO AD993
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
INDUSTRIAL RELATIONS ACT 1990
SECTION 13(9)
PARTIES: AVONMORE FOODS P.L.C.
(Represented by The Irish Business Employers Confederation)
and
A WORKER
(Represented by John M Lynch & Company, Solicitors)
SUBJECT:
1. Appeal by both parties against Rights Commissioner's
Recommendation No. C.W. 206/92 concerning an enhanced redundancy
payment.
BACKGROUND:
2. The worker concerned was employed by Burkes of Clonmel from
1957 until 1989. The Company was taken over by Avonmore Foods
P.L.C. in 1988. The worker was declared redundant on the 3rd
February, 1989 and received a statutory redundancy payment and
pension lump sum. Other employees of the Company who had been
declared redundant received in addition to the statutory
redundancy payment, ex-gratia payments amounting to 2 week's pay
per year of service. The worker claimed the same payment.
Management rejected the claim. On the 9th October, 1992, the
worker referred the dispute to a Rights Commissioner for
investigation and recommendation. On the 30th October, 1992 the
Rights Commissioner issued his recommendation as follows:-
"I recommend that the Company offers and the worker accepts
the sum of #3,100 (#100 per year of service) in settlement
of this dispute".
Subsequently both parties appealed the recommendation to the
Labour Court under Section 13(9) of the Industrial Relations Act,
1969. The Court heard the appeal in Kilkenny on the 26th January,
1993.
WORKER'S ARGUMENTS:
3. 1. The worker's fellow employees received statutory
redundancy entitlements and an additional redundancy payment
amounting to 2 weeks' gross pay per year of service. The
worker concerned has been discriminated against vis a vis his
fellow workers at the Clonmel plant. He had been told by
Management of the Company that he would receive the benefit of
any increased redundancy payments made to his fellow workers.
2. The Company made substantial gains from rationalisation
of the Clonmel plant. The worker is entitled, in addition to
his statutory redundancy and minimum notice entitlements, to
the payment of 2 weeks gross pay per year of service to put
him in a similar position to his fellow employees.
3. The worker was not on long term sick leave at the date
of his redundancy. He had returned to work and was fit for
work and this was acknowledged by the Company. His gross
weekly pay was #401.46. He is entitled to two weeks gross pay
for each of his 32 years service, plus interest to date,
compensation for loss of opportunity and expenses in
processing this claim.
COMPANY'S ARGUMENTS:
4. 1. The worker concerned had been absent continuously from
April, 1st 1988 to January 11 1989 and prior to that had
intermittent absence periods for many years due to illness.
He returned to work on January 11th for a period of
approximately three weeks during which the factory closed.
2. He received a statutory redundancy lump sum, pension
lump sum, and a sum of #2,404, the equivalent of 8 weeks
notice on foot of an Employment Appeals Tribunal Decision.
3. Because of his excessive absentee problem he falls
within a category of long term absentee. In a similar case
the Labour Court recommended that workers who had been on long
term sick leave receive a sum equivalent to the rebate on
their statutory entitlements on an ex-gratia basis (LCR12061
refers). In the worker's case this would amount to #2,602.
He has already received #2,404 in respect of minimum notice
entitlement therefore if LCR12061 was to be used as a
guideline he is entitled to #198. There is no justification
for the award of enhanced redundancy payments. Another
worker employed by the ompany who was also a long term
absentee at the same time as the worker concerned, accepted
the settlement outlined in LCR12061.
DECISION:
5. Having fully examined all aspects of this case, the Court
considers that the Rights Commissioner's recommendation should
stand unaltered.
The Court so decides.
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Signed on behalf of the Labour Court
Kevin Heffernan
8th February, 1993 ----------------
T O'D/J.C. Chairman