FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TORC GREAT SOUTHERN (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Mr. Somers |
1. Payment as per terms of severance package - LRC 21st March 2003.
BACKGROUND:
2. The worker concerned was employed by the hotel on a permanent seasonal basis since May 1985 as a wash-up steward. She last worked in the hotel for 23 weeks with 6 weeks certified unpaid sick leave during the 2002 season.
An ex-gratia sick payment was made in 2001. No approach for sick payment was made during 2002. Her last illness certificate was dated October 2001.
Before the 2002 season commenced informal discussions took place between the worker and the general manager of the hotel concerning the worker's intentions regarding her return to work . The general manager understood that the worker would not be returning to work. In October, 2002, the worker accepted a retirement presentation from the general manager.
In November, 2002 a decision was taken to sell the hotel. The staff were offered employment in the main Killarney hotel or redundancy. In March 2003 redundancy terms were agreed under the auspices of the Labour Relations Commission. The worker sought redundancy under these terms.
The issue was referred to the Labour Court on the 10th of September, 2003, in accordance with Section 20(1) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 2nd of March, 2004.
UNION'S ARGUMENTS:
3. 1. It was always the intention of the worker to return to work when her health permitted her to do so.
2. At no time did the Company issue a letter to the worker confirming termination of her employment.
COMPANY'S ARGUMENTS:
4. 1. The worker retired in April 2002 and accepted a retirement presentation in October 2002.
2. The general manager understood the worker to have confirmed her decision not to return to work for personal reasons.
3. The Company would have included the worker in it's list of staff members eligible for re-employment or redundancy if she had a legitimate claim.
RECOMMENDATION:
In the Court's view, both sides must bear responsibility for the confusion regarding the claimant's employment status at the time the redundancies took effect. The claimant's failure to submit medical certificates from October 2001 had all the appearances of an acceptance that she was no longer employed by the Hotel. However, the Hotel management were clearly remiss in failing to formally acknowledge their understanding that the claimant had resigned on medical grounds or to take steps to confirm that her employment had come to a end. It is, however, clear that from some time before the redundancies and up to the present, the claimant has remained unfit for work. Hence her financial loss arising from the closure of the Hotel is significantly less than that of other workers affected.
Having regard to all the circumstances of this case the Court is of the view that a compromise response to the Union's claim is appropriate.
The Court recommends that the Hotel offer and that the Union should accept an ex-gratia payment to the claimant in the amount of €10,000 in full and final settlement of her claim.
Signed on behalf of the Labour Court
Kevin Duffy
9th March, 2004______________________
MG.Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Madelon Geoghegan, Court Secretary.