FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : FRUIT OF THE LOOM (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Duffy Employer Member: Mr McHenry Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioner's Recommendation IR1329/00/JH, IR1330/00/JH.
BACKGROUND:
2. The appeal concerns a worker who commenced employment with the Company in 1988, she is employed at the Ballymacarney Sewing Plant, Buncrana, Co. Donegal. In October, 1999, the Company announced a major rationalisation plan involving 214 redundancies. The worker was on long term sick leave at the time. She was among a large group of workers, including those on sick leave, who were offered the opportunity to apply for voluntary redundancy. She applied for voluntary redundancy along with the rest of her other long term absent colleagues. Applications for voluntary redundancy were heavily over subscribed. There was an agreement on restructuring and redundancies made between the parties in December, 1999. The Union contends that on the basis of this agreement and on the basis of seniority, the worker was entitled to be granted voluntary redundancy. However, her application was rejected. The dispute was referred to a Rights Commissioner for investigation. On the 19th September, 2000 the Rights Commissioner issued her recommendation as follows:-
"On the basis of the evidence presented I recommend that the workers should receive a lump sum payment equivalent to 50% of the severance terms calculated by the Company. These payments to be inclusive of any entitlement to holiday pay and minimum notice. Agreement by the Company to be conditional on receipt from SIPTU of a written assurance, that having examined the situation there is no basis for consequential claims and that these payments will not be cited as precedents in any future negotiations regarding redundancy. Such a commitment to be provided by SIPTU within four weeks of the date of issue of this recommendation unless either side indicates an intention to appeal the recommendation."
(The worker was named in the recommendation).
On the 13th October, 2000, the Union appealed the recommendation to the Labour Court. The Court heard the appeal in Bundoran on the 7th March, 2001.
UNION'S ARGUMENTS:
3. 1. In accordance with the "Buncrana Restructuring 2000" agreement the worker was entitled to be granted her application for voluntary redundancy. She satisfied the criteria laid down in this agreement. She was only one of two workers who satisfied the criteria but whose applications was rejected.
2. The worker was not given the opportunity to satisfy the Company's 'condition'. Neither she nor the Union were notified of it. If the worker had been notified she might have been in a position to satisfy it by, as some workers did, returning to work for a short period. In any event she was not offered this opportunity.
3. The Union does not accept the Rights Commissioner's conclusion that "the claimants are caught between the Union and the Company as to what was said by the Company at a meeting on the 29th November and what was agreed between the parties on 6th December." This is not correct. It was first stated by the Company at a meeting on 6th December, 1999 that they were imposing conditions on acceptance for the voluntary redundancy package, and this was in response to queries from SIPTU at that meeting as to why the worker 's application was rejected. The condition for long term absentees was only mentioned after her application was refused. The notification of refusal is dated 2nd December, four days earlier.
4. The Company statement of 29th November, 1999 was nothing more than a restatement of its position of 6th December, 1999, in response to SIPTU queries. All of this occurred after the refusal and after the closing date for applications and it was simply the Company trying to justify its position after the event. It certainly never arose before it.
5. The subsequent agreement clearly takes precedence over all that had gone before, and certainly over what was nothing more than a Company view. The Union contends that the Rights Commissioner interpreted the facts wrongly and that the recommendation was unfair to the claimant. The Union requests the Court to overturn the recommendation and award a severance payment of £11,347.05 to the worker.
COMPANY'S ARGUMENTS:
4. 1. In addressing its manning difficulties at the plant ,a key priority was to reduce the physical headcount of workers on the production floor. Clearly, any process which would, therefore, guarantee long-term absentees release by reason of "voluntary" redundancy, would not in real terms reduce the operational headcount in line with the Company's objective in this regard. In response to the Union's request, the Company agreed to consider a voluntary redundancy programme to form part of a strategy to deliver the reductions required. The Company reserved the right of acceptance or rejection, conditional on a proper balance of skills being retained. Service would only be a determining factor, all things being equal in terms of the continued operations of the Department. In circumstances, therefore, where the numbers of applications for voluntary release, oversubscribed the numbers sought, it followed that these conditions came into play. In maintaining a proper
balance of skills, the ability to attend for work is one such legitimate factor which implicitly arises. The matter was raised directly with the Union in discussions on the 26th November and further confirmed at a meeting held on the 6th December, 1999
2. The Company felt obligated in the interests of equity, to invite all workers in whatever category to apply for voluntary redundancy, and did so without favour. However there was no implication of anything automatic about the acceptance of such applications. Twenty five long term absentees applied under the programme. Ten had their applications accepted. The Company realised that a number of employees were returning to work, having been long term absent during the period from 16th November, 1999, to optimise the prospect of their applications being accepted. Such "actions" did not assist in achieving the most cost effective reductions. The Company in exercising its discretion in dealing with the long term absentees, deemed that only applications from those who had actually returned to work on the date acceptances were issued would be accepted. This was as per the position articulated to the Union. In the case of the claimant she had not returned to work and the Company received no positive prognosis in this regard.
3. The Company acted honourably in a difficult and traumatic issue for all concerned, in dealing with the redundancy programme generally and the circumstances of the claimant in particular. The Company asks the Court to uphold the Rights Commissioner's recommendation.
DECISION:
The Court accepts that whilst the Company informed the Union that employees on long-term sick leave would not be considered for voluntary severance, this was not expressly provided for in the agreement ultimately concluded. It is clear to the Court that the Rights Commissioner understood this to be the position in arriving at her Recommendation.
In the circumstances of this case the approach adopted by the Rights Commissioner was reasonable. Accordingly, the Court upholds the Recommendation and the appeal is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
23rd March, 2001______________________
TODDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.