FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : CONNAUGHT & COURT LTD - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Flood Employer Member: Mr McHenry Worker Member: Mr. Somers |
1. Appeal by the Union against Rights Commissioner's recommendation IR1059/99/CW.
BACKGROUND:
2. The appeal concerns two workers who have been employed by the Company since 1977 and 1980 respectively. As a result of accidents sustained in the employment, both workers have been on long term sick leave. They applied for the Company's Voluntary Severance package but their requests were refused. The dispute was referred to the a Rights Commissioner for investigation. On the 24th of March, 2000, the Rights Commissioner issued his recommendation as follows:
"I recommend that the workers accept that the package is not available to them".
(The workers were named in the Rights Commissioner's recommendation).
On the 5th of April, 2000, the Union appealed the recommendation to the Labour Court. The Court heard the appeal on the 24th of May, 2000.
UNION'S ARGUMENTS:
3. 1. The workers concerned have long service with Connaught & Court and were both technically in the employment of the Company at the time the Voluntary Severance package was floated.
2. Neither worker terminated their own employment nor indeed was there any attempt by the Company to terminate their employment until after they had made application for the Voluntary Redundancy Package.
3. Both workers, had they been medically approved to do so, could have at any time decided to return to work and would have, by virtue of their seniority, qualified to avail of the Redundancy Package.
4. The culture in Connaught & Court has always been to tolerate long term absences and facilitate the return to work of those workers who were unfortunate enough to be out sick long term, when their medical condition allowed them to return.
5. The Rights Commissioner based his recommendation on the submissions made to him on the day. The Company in its submission maintained that it had excluded all long term absentees during negotiations on the package. At no stages in the negotiations did the Company make the Union aware of its intention to exclude long term absentees.
6. It was agreed at local level that up to 3 or 4 additional applicants could be facilitated where special circumstances existed. What more special circumstances could there be than the circumstances of both workers. Both were involved in occupational accidents whilst working for the Company, and both are now likely to be faced with the termination of their employment.
7. Even if there is some degree of validity in not extending the full terms of the package to the workers, there is a moral dimension to their cases, which should be looked at, given their service to the Company and their circumstances.
COMPANY'S ARGUMENTS:
4. 1. The termination of employment of the workers concerned is not a case for the application of the redundancy terms agreed between the Company and SIPTU. The reason for the termination of employment in each instance is incapability - the workers in question have not worked in the Company for some years.
2. There is no dispute as to the genuineness of the claimants' illnesses and the medical evidence available to the Company supports the view that neither claimant will be in a position to return to work in the foreseeable future.
3. The Company made it clear at the negotiations on the reorganisation that it was not its intention to include these long term absentees in the programme. If the Union wished these workers or long term absentees in general to be included in the redundancy programme, it should have made that argument before the conclusion of the agreement.
4. The Company views the present claim by the individuals concerned as opportunistic and without merit.
5. Concession of the claim at this point would create a financial burden for the Company which it cannot at this time afford.
DECISION:
While other considerations were raised by the Union, the Court in considering this appeal is doing so on the specific issue of whether the claimants are entitled to the severance package.
The Court having considered the written and oral submissions, finds no reason to change the Rights Commissioner's Recommendation and rejects the appeal.
The Court so decides.
Signed on behalf of the Labour Court
Finbarr Flood
2nd June, 2000______________________
TOD/CCChairman
NOTE
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.