FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : WEXFORD COUNTY COUNCIL (REPRESENTED BY LOCAL GOVERNMENT MANAGEMENT SERVICES BOARD) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Grier Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner's Recommendation IR17711/03.
BACKGROUND:
2. The worker concerned commenced employment in April, 1992, following his approval through FÁS, as a participant on the Council sponsored Community Employment Scheme operating in the National Heritage Park. He was granted a second term as a participant from 1995 -1997. In 1997, he was appointed Supervisor of the scheme. He was made redundant with effect from the 14th November,2003, following the ending of the scheme.The Union claim that the worker was an employee of the Council and should have been redeployed on cessation of the scheme.
The issue was referred to a Rights Commissioner for investigation and recommendation. His recommendation issued on the 5th February, 2004 and is as follows:
"......... I believe that the worker's employment status was intended to be of a temporary nature and was directly linked to the FÁS funded C.E. Scheme that operated in the Heritage Park.
.......Furthermore I believe that a genuine redundancy has taken place and that the worker, as job holder, was fairly selected for dismissal.
I recommend that the worker should be subject to the Council's current selection policy of open competition in the event he seeks a permanent position with the Council.
......... I recommend that the worker be awarded a sum of money equivalent to what he would have earned had he remained in the Council's employment from 14th November, 2003 until he was re-employed on a short term contract on 2nd January, 2004. ..........."
The worker was named in the Rights Commissioner' s recommendation.
The Union appealed the recommendation to the Labour Court on the 10th March, 2004, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 28th of May, 2004.
UNION'S ARGUMENTS:
3. 1.Theworker was appointed as a full-time Supervisor to replace the then full-time permanent Local Authority Supervisor in 1997.
2. The Union clearly understood that the worker was a full-time, permanent direct employee of the Council following his appointment as Supervisor.
3. The worker should have been re-deployed within the Council following his redundancy. This occurred in a similar situation in another area of the Council.
COUNCIL'S ARGUMENTS:
4. 1. The Council is satisfied that the dismissal of the worker resulted from a genuine redundancy and that the selection for redundancy was fair.
2. The worker's employment with the Council was solely on a FÁS funded scheme. He was never at any time a permanent employee of the Council.
3. The redundancy of Community Employment Supervisors/Assistant Supervisors is not unprecedented in the local authority sector.
DECISION:
The County Council submit that the appellant was employed with the County Council as a participant under a Community Employment Scheme (CE Scheme), grant aided by FÁS until he took over the role as Supervisor of the scheme in 1997, until 14th November, 2003 when his position was made redundant.
The Union submits to the Court that he became a direct employee of the County Council when he was appointed to the supervisory role in 1997 and therefore should have been redeployed when his position became redundant in 2003.
Having considered the positions of both sides the Court is satisfied that similar to other CE schemes grant aided by FÁS there can be no imputation of an employer-related responsibility in this arrangement. The Court is satisfied that his position as supervisor was at all times on the basis of employment on a Community Employment Scheme.
Having considered all aspects of this case, the Court concurs with the Rights Commissioner's findings and recommendation and rejects the Union's appeal.
Accordingly, the Court upholds all aspects of the Rights Commissioners recommendation.
Signed on behalf of the Labour Court
Caroline Jenkinson
21st June, 2004______________________
MG.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Madelon Geoghegan, Court Secretary.