FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : IRISH ISPAT LIMITED - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Employer Member: Worker Member: |
1. Appeal by the Company against Rights Commissioner's recommendation No ST271/95.
BACKGROUND:
2. The appeal concerns a worker who was employed by the Company from 1988 to 1994. Following negotiations on the Company's Survival plan in 1994, agreement was reached on 110 redundancies in relation to Union members. A list of workers was drawn up by the Company but the worker concerned was excluded from this list. Following some difficulties Management applied to have the Company placed in liquidation. Workers were informed that their employment was terminated. They signed on in the employment exchange. During this time the worker enrolled in a third level course in Dublin. He took up the course and paid course fees amounting to £650. Subsequently a decision was taken to re-open the Company. In subsequent negotiations the Union sought an exgratia payment for the worker on the basis that the Company declared him redundant by informing him that the Company was being placed in liquidation. Management rejected the claim stating that the worker left the employment voluntarily.
The dispute was referred to a Rights Commissioner for investigation. On the 8th November 1995 the Rights Commissioner issued his recommendation as follows:
"I recommend in all the circumstances, including the fact that this is the only case of its kind which can arise, that he receives an exgratia severance payment of £5,000, such sum to be paid by the Employer without precedent or prejudice".
On the 5th December, 1995 the Company appealed the Rights Commissioner's recommendation to the Labour Court. The Court heard the appeal in Cork on the 19th June 1996.
COMPANY'S ARGUMENTS:
3. 1. When the Company sought applications for redundancy the claimant was one of the applicants. However the number of applicants was in excess of requirements. The claimant's position (utility operator) was not affected by the redundancy programme and he was not included in the redundancy offer.
2. When the plant reopened it emerged that the claimant had resigned. This was his individual decision. The Company rejects the claim for redundancy. The worker's situation was similar to many others in the Company who had an uncertain future. The worker knew that the Company had refused his redundancy application. His post was retained and to this date a utility operator continues on each shift in the rolling mill.
3. The Company cannot be expected to take responsibility for the worker's decision to resign. The Rights Commissioner's recommendation of compensation could be construed as creating a liability should a similar problem arise in future.
UNION'S ARGUMENTS:
1. When the redundancies were first mooted the Company provided the Union with a list of workers it believed could be accommodated. The claimant was on the list. At subsequent negotiations the Company amended the list to exclude him.
2. The claimant was placed in an impossible position by the public announcement of the Company's imminent liquidation. He was drawing unemployment benefit when he decided to further his education; take a third level course and meet his costs.
3. The worker had no definite information that the Company would re-open. The Company has not denied its decision to seek the appointment of a liquidator and to terminate workers' employment. It has not denied that the claimant was initially told he was being granted redundancy. Furthermore the worker was not informed of any change in this decision subsequently.
4. Subsequent to the Rights Commissioner's investigation the Court has recommended in favour of exgratia payments to temporary/casual workers over and above the 110 places originally allocated to redundancies.
5. The Company's only proposal of an exgratia payment to the worker to resolve this issue would have meant that another worker, with 25 years service, told by Management that he was being accommodated for redundancy, could not go because the claimant was being substituted in his place. The Union could not accept this proposal.
DECISION:
Having considered the written and oral submissions made by the parties the Court is of the view that the claimant was aware that the Company had rejected his application for redundancy when he made his decision to resign.
It is also a fact that the option of returning to work was open to him when the factory reopened, albeit with the loss of college fees already paid.
Accordingly the Court upholds the appeal of the Company.
The Court so decides.
However the Court, taking into account the approach taken by the Company in other areas of the plant and the confusion and pressures operating at the period in question, recommends that the Company pay the claimant an exgratia payment of £1,000 without precedent or prejudice.
Signed on behalf of the Labour Court
Finbarr Flood
3rd July,1996______________________
T.O'D./S.G.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.