FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : ROYAL & SUN ALLIANCE - AND - A WORKER (REPRESENTED BY MANUFACTURING, SCIENCE, FINANCE) DIVISION : Chairman: Mr Duffy Employer Member: Mr Keogh Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioner's Recommendation No. IR5139/01/TB.
BACKGROUND:
2. The worker has been employed by the Company since July, 1988. As a result of restructuring in January, 2000, the worker's position as Senior Engineer Surveyor became redundant.
The Union claims that under an agreement with the Company on "Security of Employment and Earnings Agreement" (S.E.E.A.) that where a job is declared redundant and where no suitable alternative employment exists, the job holder must be allowed to work out his notice period (18 months) in his current position or if the Company chooses to abolish that position prior to the expiry of the notice period, the individual is entitled to pay-in-lieu or "garden leave."
Management argues that the worker was informed by letter in April, 2000, that if he opted for S.E.E.A. that he would be required to work his notice.
The dispute was the subject of a Rights Commissioner's hearing which took place on the 13th of November, 2001. The following is the Rights Commissioner's Recommendation:-
"Before exercising any option, the Company advised the worker (letter 6/4/00) that if he opted for S.E.E.A., he would be required to work his notice. Other than in exceptional circumstances and in the context of the agreement, it is reasonable to expect that notice would be worked.
I recommend that the worker accepts that he works his notice and I recommend that the Company amend its 90% requirement to 80%."
The Union appealed the Recommendation to the Labour Court on the 21st of December, 2001, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 14th of February, 2002.
UNION'S ARGUMENTS:
3. 1. The worker is subject to compulsory redundancy and is, therefore, entitled to work his notice in his current capacity or if the Company chooses to abolish his position prior to the end of his notice period is entitled to pay-in-lieu or "garden leave."
2. The decision of the Rights Commissioner was based on a misunderstanding of the terms of the S.E.E.A. and incorrect information given by the Company.
3. The S.E.E.A. places an onerous burden on the Company in respect of the steps it must implement and the obligations it must accept before it can declare a position involuntarily redundant.
COMPANY'S ARGUMENTS:
4. 1. The S.E.E.A. agreement represents a right to work notice. It does not provide a right to the same work.
2. If the Company had suitable alternative work to offer the worker, he would not be redundant and the debate regarding his notice period would not arise.
3. The worker was advised that if he opted for S.E.E.A. that he would be required to work his notice.
DECISION:
The Court notes that this dispute is essentially concerned with an interpretation of the SEEA agreement and its application to the claimant.
On the basis of the information before the Court it appears clear that the decision as to whether a person should be required to work their notice or to take "garden leave" is one solely within the discretion of the Management. The Court cannot say that the Management are exercising that discretion in an unfair or unreasonable manner in relation to the claimant.
However, having regard to all of the circumstances of this case the Court is of the view that the Company's requirement as to the claimant's working time should be further reduced to 70%. Furthermore, the parties should review the overall position at the end of 2002.
With these modifications the Rights Commissioner's recommendation is affirmed.
Signed on behalf of the Labour Court
Kevin Duffy
25th February, 2002______________________
LW/BRDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Larry Wisely, Court Secretary.