Labour Court Database __________________________________________________________________________________ File Number: CD94356 Case Number: AD9460 Section / Act: S13(9) Parties: BORD NA MONA - and - AMALGAMATED TRANSPORT AND GENERAL WORKERS UNION |
Appeal by the union against Rights Commissioner's Recommendation No. BC 127/94.
Recommendation:
The Court finds that the employee concerned in view of all of the
circumstances of the case was in effect made redundant.
In these circumstances the Court considers it unreasonable that he
should not benefit from the Redundancy Scheme operated by the
Company.
Accordingly it is the decision of the Court that the appeal of the
Union be upheld and that the Voluntary Redundancy Scheme be
applied to him.
The Court so decides.
Division: MrMcGrath Mr McHenry Mr Walsh
Text of Document__________________________________________________________________
CD94356 APPEAL DECISION NO. AD6094
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES:
BORD NA MONA
AND
AMALGAMATED TRANSPORT AND GENERAL WORKERS UNION
SUBJECT:
1. Appeal by the union against Rights Commissioner's
Recommendation No. BC 127/94.
BACKGROUND:
2. 1. The worker concerned commenced employment with the Bord
in 1983 as a seasonal employee. He was employed at
Oweninny Works, Co. Mayo on transport line duties and
worked each successive season up to 1991. In 1989 the
Company in agreement with the Unions embarked on a major
programme of change involving the establishment of
Autonomous Enterprise Units in its production
operations. The worker was employed in one of these
Units and in his first and second seasons maintained his
traditional working pattern and worked the major part of
the year. In his third season his earnings were reduced
and he requested to be returned to line duties.
Management rejected the request. The worker refused an
offer of seasonal work in 1992 and remained on lay off
for that season. The Company employed another seasonal
worker at the Unit. In 1993 the worker concerned was
again offered seasonal work but declined the offer. In
December, 1993 the Union on behalf of the worker
submitted a claim to the Employment Appeals Tribunal,
that he was dismissed by reason of redundancy and
brought an appeal under the Redundancy Payments Acts
1967 - 1991. The Tribunal decided that the worker was
constructively dismissed by reason of redundancy and was
therefore entitled to statutory redundancy.
The Company implemented the Decision and paid the worker
statutory redundancy. The Union subsequently submitted
a claim for payment of the Bord's Voluntary Redundancy
Severance terms to the worker concerned (4 weeks pay
per year of service). Management rejected the claim.
2. The dispute was referred to a Rights Commissioner for
investigation and recommendation. The Rights
Commissioner investigated the dispute on the 15th June,
1994. In his findings the Rights Commissioner stated:-
1. This issue, not withstanding the determination of
the Employment Appeals Tribunal dated 3rd March,
1994, should, I would deem, be approached not on the
basis of arid legalism but rather from the
standpoint of pragmatic Industrial Relations common
sense.
2. I note that effectively the worker's status within
the employment of Bord Na Mona had not changed with
that of a seasonal worker who could be assigned to
many of a number of activities.
3. There is still work for the employee, seasonal work,
within Bord Na Mona.
4. It is essential that the prerogative of Management
in accepting or rejecting applications for voluntary
redundancy should remain intact.
5. Bord Na Mona at no time, had either sought or
voluntarily accepted any request for the worker to
be made voluntarily redundant. This is important.
6. I note that where the Company exercises its
discretion to accept an application for voluntary
redundancy then the formula of four weeks pay per
year of services applies.
On the 21st June, 1994 the Rights Commissioner issued
his recommendation as follows:-
"In the light of the above my recommendation is
that this claim must fail and I recommend
accordingly."
(The worker was named in the Rights Commissioners
recommendation).
On the 8th July, 1994 the Union appealed the
recommendation to the Labour Court under Section 13(9)
of the Industrial Relations Act, 1969. The Court heard
the appeal on the 23rd August,
1994.
UNION'S ARGUMENTS:
3. 1. There was a significant change in the worker's
conditions of employment and he suffered a substantial
loss of earnings. He was given an assurance by
Management in 1989 that when the production season ended
he could revert to transport and maintain a level of
earnings which he previously enjoyed. This did not
happen and the worker's subsequent redundancy claim was
upheld by the Employment Appeals Tribunal.
2. The decision of the Bord to pay statutory entitlements
only to the worker was unfair. Management had
previously applied the terms of the Voluntary Severance
Package to all employees whether opting for redundancy
or in a few instances where acceptance was compulsory.
3. The Rights Commissioner chose to ignore the infringement
of the worker's conditions of employment, past
assurances given by Management, and the fact that nearly
3,000 workers have been made redundant since 1989.
4. The Union accepts that the Bord's discretion must be
exercised in cases of voluntary redundancy. The
worker's case is exceptional and merits payment of the
voluntary severance terms.
COMPANY'S ARGUMENTS:
4. 1. The redundancy as determined by the Employment Appeals
Tribunal was not 'voluntary' in either legal or
Industrial Relations terms. The operational
requirements of the Bord would not have been served by
the granting of voluntary terms to the worker. A
previous application from the worker for the voluntary
terms was rejected by Management for operational
reasons.
2. The effective operation and application of the terms of
the Voluntary Severance Package would be destroyed if
the Union's claim was conceded. To compel the Bord to
extend the terms of the package to a worker regardless
of operational requirements would have obvious
repressive effects from those other employees whose
applications have not been granted or may not be granted
in the future.
DECISION:
The Court finds that the employee concerned in view of all of the
circumstances of the case was in effect made redundant.
In these circumstances the Court considers it unreasonable that he
should not benefit from the Redundancy Scheme operated by the
Company.
Accordingly it is the decision of the Court that the appeal of the
Union be upheld and that the Voluntary Redundancy Scheme be
applied to him.
The Court so decides.
~
Signed on behalf of the Labour Court
13th October,1994 Tom McGrath
T.O'D./D.T. _______________
Deputy Chairman
Note
Enquiries concerning this Recommendation should be addressed to
Mr. Tom O'Dea, Court Secretary.