FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : GLANBIA - AND - A WORKER (REPRESENTED BY DAIRY EXECUTIVES ASSOCIATION) DIVISION : Chairman: Mr Duffy Employer Member: Mr McHenry Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner's recommendation.
BACKGROUND:
2. The dispute is a claim for redundancy by the Worker under the Voluntary Redundancy Agreement agreed between the Association and the Avonmore/Waterford Group dated 11th February 1998. The Company is a new organisation resulting from the merger of Avonmore Foods and Waterford Foods which took place in September 1997. The worker was employed by Avonmore as Payroll Manager and was based in the Ballyragget Plant. She was offered the role of Payroll Manager for the new merged group in head office in Kilkenny and she declined the move.
The dispute was referred to the Rights Commissioner for investigation and recommendation. On the 16th of October 2000, the Rights Commissioner recommended:-
"I have given this case very careful consideration and I have come to the conclusion that the claimant was told that the merger package would be made available to her should the new arrangement not work out to the mutual satisfaction of both the claimant and the Company. It is abundantly clear that the new arrangement did not suit the claimant and, therefore, I am recommending that the terms of the redundancy agreement be made available to her".
On the 21st of November 2000, the Company appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969 and the Court heard the appeal on the 4th of May 2001.
COMPANY'S ARGUMENTS:
3. 1. The worker's claim does not meet any criteria set down by the definition of Redundancy in the Redundancy Payments Act 1967/1991 to justify payment of redundancy.
2. The worker's position is a crucial one for the organisation and is being retained.
3. Under the clause "Relocation/Redeployment/Significant Job Change" the agreement reads:- "Where a person is affected by one of the above, the Voluntary Redundancy option will be held open for 12 months from date of change there has to be mutual agreement." There is not mutual agreement that the job did not work out.
4. The issue of the worker's redundancy is not common to both as the Company does not intend to make the position or the person redundant.
5. The Company has paid the worker her full Performance Related Payments over the past few years.
UNION'S ARGUMENTS:
4. 1. The worker made numerous attempts to speak with the Human Resource Manager regarding her position with the Company - but was not successful.
2. The worker took up the new position offered to her on the clear understanding that if it did not work out within 12 months of the commencement date that the terms of the merger redundancy package would be made available to her.
3. Three months after taking up the new position the worker informed the Human Resource Manager that she had concerns about her new role in that it was not working out as she had expected and that she was not challenged by the job.
4. The new role involved the worker taking on clerical oriented work, which she had done 5 years earlier and had previously been in a position to delegate.
DECISION:
The Court is satisfied that the wording of the letter sent by the Deputy Head of Human Resources to the claimant dated 3rd December, 1998, is incapable of bearing the meaning ascribed to it by the Company. What the letter clearly conveyed was a commitment that if the position taken up by the claimant did not work out to the satisfaction of either the claimant herself or the Company, the merger package would be made available.
Since the position has not worked out to the satisfaction of the claimant she is entitled to rely on the commitment and avail of the package.
It is noted that the Company holds the claimant in the highest regard and would wish to retain her services. In these circumstances, the Court recommends that the Company and the claimant should seek to identify a position within the organisation which is commensurate with the claimant's skills and abilities and to which she might agree to accept redeployment. In that event the option to avail of the merger package could be kept open for a period of six months from the date the position is taken up. The option to avail of the package should be exercisable by the claimant at her discretion in the event of any new position not proving satisfactory to her.
In the event that a suitable position is not identified or in the event of the claimant not accepting redeployment, the merger package should be made available in accordance with the terms of the commitment of 3rd December, 1998.
The Company's appeal against the Recommendation of the Rights Commissioner is disallowed and the Recommendation as modified by this determination is affirmed.
Signed on behalf of the Labour Court
Kevin Duffy
17th May, 2001______________________
HMCD/CCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Helena McDermott, Court Secretary.