FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : GLANBIA FOODS LIMITED - AND - DAIRY EXECUTIVE'S ASSOCIATION DIVISION : Chairman: Ms Jenkinson Employer Member: Mr McHenry Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioner's Recommendation IR992/99/CW.
BACKGROUND:
2. The appeal concerns a worker who has been employed by the Company since 1987 and worked in a number of positions. In 1997, Avonmore and Waterford Foods Group merged to become Glanbia. A decision was taken to close Dealgan Milk Products Dundalk (a subsidiary of Waterford Foods). The claimant was Sales and Distribution Manager at the time. He was advised that when the closure was completed he would be based in Drogheda. Subsequently the Company told the worker he could remain in Dundalk. His present post is as Regional Sales Manager based in Dundalk. The Union claims that the worker is entitled to a redundancy package which was offered to employees in 1998 on the basis of various changes in his duties and responsibilities. The Company stated that the worker's position was not declared redundant and rejected the Union's claim. The dispute was referred to a Rights Commissioner for investigation and recommendation. On the 19th of April, 2000 the Rights Commissioner issued his Recommendation as follows:
"Obviously the post of the worker is not redundant. The Company are not insisting that he moves. I do not see that he can qualify under "significant job change". He may have lost some duties and had others added, but this can occur in any organisation and does not constitute "significant job change". To me such a job change is possibly tantamount to a change in conditions of employment which might qualify for a constructive dismissal claim."
(The worker was named in the Rights Commissioner's Recommendation.)
On the 9th of May, 2000, the Union appealed the Recommendation to the Labour Court. The Court heard the appeal on the 27th of July, 2000.
UNION'S ARGUMENTS:
3. 1. At the time of the merger the claimant along with other workers was presented with a redundancy option package but was advised to stay on in the employment, on the basis that the agreement provided for time to decide, depending on developments.
2. From 1999, the changes in the employment impacted severely on the worker. In August 1999, he sought clarification from the Company relating to his options on redundancy and when they would expire. No response was given to him.
3. The worker was never told that his options had expired until the Union sought the package on his behalf in September, 1999.
4. The worker was provided with figures relating to redundancy by Glanbia plc. His application is based on the redundancy agreement and on its original availability and the fact that this was sustained by the changes which occurred.
5. All Dealgan employees, except the claimant, have received redundancy or relocation packages. The claimant was working on the understanding that the agreement would apply. If he had been told the option would expire he would have made a decision based on that information. He has been affected by relocation, re-deployment and significant change in accordance with the agreement of February, 1998. The redundancy package was originally available to the claimant and the changes which occurred provide evidence that the package should still be available to him.
COMPANY'S ARGUMENTS:
4. 1. In response to the Union's letter seeking clarification of the worker's position relating to voluntary redundancy or the option of staying with the Company, Management clarified that as a result of the closure of production facilities at Dealgan, Dundalk, the claimant's base would move from Dundalk to Drogheda and that his job description, role and territory would remain unchanged. The proposed move would incur no expense as the worker is provided with a company car. Since then the claimant has been told by the Company that he can operate out of his office at Dealgan as the Company is retaining part of the site for operational purposes.
2. There is no justification in the claimant's application for voluntary redundancy as he holds the position of Regional Sales Manager in the Company. The claimant has not been affected by the closure of the Dealgan plant and is retaining his office in Dundalk.
3. The Company has never made an offer of redundancy to the claimant and if he is given the option of redundancy the Company will have to fill the post with someone else. This is clearly a breach of the Redundancy Payments Act.
DECISION:
The Court has considered all aspects of this appeal.
The Court is satisfied that the appellant was given the impression that the option of redundancy was open to him, as it was to other employees, resulting from the closure of Dealgan Milk Products during the merger process of Avonmore and Waterford foods.
The Court is of the view that this impression was circulated without sufficient detail of the Company's right not just to retain those with specialised skills but in the case of Dealgan, to retain his job into the consolidated Drogheda plant.From the outset, the Company's communications regarding the merger stated that Dealgan Milk Products operations would be "consolidated" into one site, at Drogheda.
While there may have been changes to the appellant's job in recent years, essentially his present job is as per his original job function. The Court notes that due to his reluctance to move from Dundalk to the offices at Drogheda, the Company has given him an assurance that he may remain in his present office location.
Therefore the Court is satisfied that no redundancy situation exists, at the moment. However, if in the future, he is required to relocate from Dundalk, or if his position changes so significantly as to be unsuitable for him, the Voluntary Redundancy option should be made available to him for a period of twelve months from the date of the change, as per the February 1998 Agreement.
The Court amends the Rights Commissioner's Recommendation accordingly.
The Court so decides.
Signed on behalf of the Labour Court
August, 2000.______________________
TOD/BCCaroline Jenkinson
Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.