AD9757

SUBJECT:
1. Appeal by the Union against Rights Commissioner's Recommendation No. 634/96.





BACKGROUND:

2. The appeal concerns a worker who in February, 1996 sought access to a voluntary severance scheme which was closed by the Company in December, 1995. She was refused access to the scheme. The Union claimed that the worker was unfairly treated and referred the issue to a Rights Commissioner for investigation and recommendation. On the 20th of May, 1997 the Rights Commissioner issued his recommendation as follows:-

"There is a conflict of evidence on whether the details of the severance scheme were communicated to the claimant and it is possible that a better climate might have produced better communications. One is satisfied, however, that she had at least a general knowledge of the existence of the scheme and chose not to seek access until after her return to work, perhaps believing that it would still be available.

In any event, a crucial point in any consideration must be that the scheme was voluntary and, as such, while all could apply, it was at the discretion of the employer whether or not to approve in any particular case. It is clear, therefore, that an extension of the closing date is unlikely to have benefited the claimant.


In all the circumstances,I find no basis on which to recommend the employer re-open the scheme to consider an application from the claimant.

On the 16th of June, 1997 the Union appealed the recommendation to the Labour Court. The Court heard the appeal on the 14th of October, 1997.



UNION'S ARGUMENTS:

3. 1. The Company did not communicate details of the scheme to the claimant who was on Maternity Leave on the 1st of December, 1995. The Company, having issued RP1 Forms to all members of the Women Workers Branch, did not even notify the Union office that it had reinstated the voluntary severance scheme. Where the Company did not even advise the Union Officials of its decision to reinstate the scheme it certainly would not have notified an individual employee who was on Maternity Leave.

2. It was an integral part of the voluntary severance scheme that it was intended to be available to those staff members of the Women Workers Branch who did not wish to work in the new situation, or who were unable to work in the new situation. Implicit in this is the recognition that staff may wish to try to work in the new situation and, if they were unable to remain they could avail of the severance terms. The claimant, in exercising her right to return to work, and subsequently requesting release under the terms of the scheme was conforming to the criteria referred to above.

3. The crucial point referred to by the Rights Commissioner is in the Union's view somewhat misguided in that most voluntary severance schemes are operated on the basis of seniority with recognition of the need to have due regard to the Company's requirements for skill. The claimant was more senior than a number of employees who were granted the terms and, in relation to the skill factor, she was one of a group of Journeywomen who were interchangeable in all elements of the skill of Journeywomen. The Rights Commissioner is wrong in his assertion "that an extension of the closing date is unlikely to have benefited the claimant."

4. It was the Company's own action of issuing RP1 Forms to all Women Workers Branch members which caused the over subscribed take up of the voluntary redundancy package. The claimant therefore should not be denied the terms of the scheme. The worker's case is unique and, without necessarily re-opening the scheme, the terms of the scheme should be extended to her.



COMPANY'S ARGUMENTS:

4. 1. The Company in outlining its restructuring plan in April, 1995, did not seek any redundancies as part of the process. Following discussions with the Union the Company agreed to put up a voluntary package subject to an acceptance date of what was on offer by 1st December, 1995, and the Company reserving its right to accept or reject applicants.

2. The claimant was advised of the deadline by her supervisor at the time, yet there was no communication from her or her Union representatives regarding the voluntary redundancy package until her return in February, 1996.


3. The package was on offer in the context of compliance with the deadline and the Company's right to accept or reject applicants. Had the claimant applied prior to the deadline, the Company still had the discretion to accept or reject her application. She had no automatic right to the package.

4. A colleague of the claimant, who was on maternity leave at the same time as her, subsequently applied for the package after the deadline. Her application was also refused. The application was made in January, 1996 prior to the claimant's return.





DECISION:

The Court, having considered all of the views expressed by the parties in their oral and written submissions, does not find grounds to warrant amendment of the Rights Commissioner's Recommendation.

The Court accordingly upholds the Rights Commissioner's Recommendation and rejects the appeal of the Union.



Signed on behalf of the Labour Court



Tom McGrath
30th October, 1997______________________
T.O'D./D.T.Deputy Chairman



NOTE

Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.