Labour Court Database __________________________________________________________________________________ File Number: CD93314 Case Number: LCR14135 Section / Act: S26(1) Parties: NAZARETH CHILDRENS HOME - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Dismissal of a worker.
Recommendation:
5. The Court, having considered all of the facts related to this
case, has come to the conclusion that the claimant was not treated
unfairly in being selected for redundancy.
However, the Court is of the opinion, having regard to the
circumstances which led to the redundancy and to the upgrading and
modernisation which occurred subsequent to it as a result of the
review, that he had reasonable grounds for feeling aggrieved. In
all the circumstances the Court believes that some form of
ex-gratia payment is warranted and recommends that a sum of
#1,500, exclusive of statutory entitlements be paid to him in
settlement of the issue.
Division: Ms Owens Mr Brennan Mr Walsh
Text of Document__________________________________________________________________
CD93314 RECOMMENDATION NO. LCR14135
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990
PARTIES: NAZARETH CHILDRENS HOME
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Dismissal of a worker.
BACKGROUND:
2. The Home is a place of refuge, shelter and care for children,
under the patronage of the Sisters of Mercy in Tralee. The Home
seeks to provide residential accommodation and a caring community
to promote the social, educational and spiritual needs of those
children placed in its care. The Home is managed by a Board
consisting of members of the Mercy congregation and lay people,
who act in a voluntary capacity.
The worker concerned commenced employment with the Home in
October, 1990, as a childcare worker. The worker's employment was
terminated on 5th February, 1993. The Board claims that as a
result of a reduction in the number of children in its care, it
had no option but to terminate the employment of the worker
concerned. The Union rejected the claim.
The matter was referred to the Labour Relations Commission. A
conciliation conference was held on 25th March, 1993 but no
agreement was reached and the matter was referred to the Labour
Court on 24th May, 1993. The Court hearing took place in Cork on
24th June, 1993.
UNION'S ARGUMENTS:
3. 1. The worker concerned was issued with a written contract of
employment which did not require him to have qualifications,
he was willing to engage in any training programme which would
have helped him in his role as childcare worker but he was
never afforded the opportunity to do so.
2. The worker has complied at all times with the terms and
conditions of his contract of employment. The contract is
binding and does not provide for redundancy as a means of
dismissing childcare workers.
3. Two part-time staff were junior in service to the worker
concerned.
4. Since the worker was dismissed, the Board has advertised
for and recruited new staff although the number of children in
care has remained the same since February, 1993.
5. The circumstances under which the worker was dismissed was
not a genuine redundancy situation and the Board's attempt to
justify his dismissal in this way is unfair to the worker
concerned.
BOARD'S ARGUMENTS:
4. 1. The number of children in care at the Home reduced from
sixteen in July, 1991 to eight in January, 1993.
2. Because of the continuous reduction in the numbers of
children in care, the worker concerned was put on a three-day
week in November, 1992.
3. The worker concerned was chosen for redundancy because he
was the most junior employee in the general category of
workers (assistant houseparent).
4. At the time of the worker's dismissal, the Board had taken
a decision to continue to provide childcare services and that
such services would be provided in a more modern and natural
environment than previously.
5. In late 1992, two members of the staff were on maternity
leave. In January, 1993, one of those returned and another
member of the full-time staff resigned. This reduced the
overall staffing levels by two people.
6. No redundancies occurred at houseparent level which is the
senior staffing level within the service, as the Home needed
more professionally-qualified people. This had been
highlighted in a report commissioned by the Board at that
time.
7. The whole nature of childcare service has been changing in
recent times. The Home had two options. One was to
discontinue the provision of the service and the other was to
radically change the approach to the service.
8. Subsequent to the redundancy of the worker, the upgrading
and modernisation of the service has continued under the
guidance of professional advisors and the Southern Health
Board.
9. The childcare service is now operated out of two ordinary
houses in the local community and each of these units is now a
more specialised facility, i.e. one for teenage boys and the
other for girls. This resulted in the need for extra staff
who were taken on in June, 1993. These positions have been
filled by professional childcare workers. The worker
concerned lacks the appropriate qualification to be considered
for any of these positions.
RECOMMENDATION:
5. The Court, having considered all of the facts related to this
case, has come to the conclusion that the claimant was not treated
unfairly in being selected for redundancy.
However, the Court is of the opinion, having regard to the
circumstances which led to the redundancy and to the upgrading and
modernisation which occurred subsequent to it as a result of the
review, that he had reasonable grounds for feeling aggrieved. In
all the circumstances the Court believes that some form of
ex-gratia payment is warranted and recommends that a sum of
#1,500, exclusive of statutory entitlements be paid to him in
settlement of the issue.
~
Signed on behalf of the Labour Court
Evelyn Owens
_____________________
14th July, 1993. Deputy Chairman.
F.B./J.C.
Note
Enquiries concerning this Recommendation should be addressed to
Mr. Fran Brennan, Court Secretary.