FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : THOMAS MCDONAGH & SONS (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Implementation of Labour Court Recommendation 17650.
BACKGROUND:
2. In LCR 17650 (issued in November, 2003) the Court recommended that the worker be paid 75% of a redundancy package (worth €68,364) and that he be offered seasonal work for 3 months of the year in which such work was available. The Union claims that at a conciliation conference at the Labour Relations Commission the Company had agreed to pay the worker his previous supervisor's rate going forward. The Company denies making the offer but accepts that it was in the IRO's report. In the 2004 season the worker was offered seasonal work but at a rate which was €150 per week less than his rate at the time of LCR 17650. The worker refused the job. In 2005 the Company was sold and the worker was not offered any seasonal work. The Union's case is that the Company did not honour the terms of LCR 17650 and it is now seeking the 25% balance of the redundancy package, worth €22,788. (The Company's figure for the 25% is €17,091.)
The dispute was referred to the Labour Relations Commission and a conciliation conference took place. As the parties did not reach agreement, the dispute was referred to the Labour Court on the 22nd of November, 2004, in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 30th of November, 2005, in Galway, the earliest date suitable to the parties.
UNION'S ARGUMENTS:
3. 1.At the conciliation conference the Company agreed, going forward, to pay the worker at his previous higher rate of pay. The worker could not be expected to accept work that paid him €150 less per week than previously. He also had to travel an extra 50 miles per day. There is no prospect of him finding further work as the Company has been sold.
COMPANY'S ARGUMENTS:
4. 1. The worker was offered casual work (as per LCR 17650) in 2004 but he refused it. This was work as a forklift driver and he would have been paid accordingly. The Company could not pay him at his previous supervisor's rate and the Court did not recommend that he be paid that rate.
2. The Company believes that the redundancy lump sum was in full and final payment. The site in Tuam has since been sold and the Company cannot offer the worker any further casual work.
RECOMMENDATION:
The Union claimed that the Company failed to implement Labour Court Recommendation No: 17650, which recommended in respect of the claimant, as follows:
- “The Court believes that it is not unreasonable for this worker to claim a redundancy package in line with that offered to him in November, 2000 and confirmed in August, 2001. The Court recommends that he be paid 75% of the amount due using this formula (i.e.€68,364) and that he be offered casual seasonal work for the 3 months of the year in which such work is available.”
The offer of seasonal work made by the Company to the claimant for the 2004 season in the Tuam plant was rejected by him, as it did not pay him the rate he had been on prior to his redundancy. By the time the 2005 season came around the Union claimed that as there was no job available for him that he was made redundant and, therefore, sought payment of the remainder of the redundancy package recommended by the Court in LRC No: 17650.
The Court accepts the claimant may have had a legitimate expectation that his employment, albeit on a seasonal basis, would have continued for a number of years after he was made redundant in 2003. This was not to be, and the Company was sold in 2005. The new company subsequently decided to close the Tuam division.
The Union stated to the Court that at the conciliation conference on 28th October, 2004, the employer indicated a willingness to pay the claimant a rate equivalent to the amount he was previously paid for whatever seasonal work was available going forward. This was denied by the employer at the Labour Court hearing.
Having considered the matter, the Court is of the view that, following the claimant’s rejection of the offer of seasonal work in 2004, a commitment was made to pay him the higher rate from the 2005 season going forward, but that due to the changed circumstances, no further work was available to him. Therefore, the Court recommends that in full and final settlement of all claims against Thomas McDonagh & Sons, the worker should be paid in lieu of the 2005 season at the higher rate, i.e. the sum of €6,266 should be paid with immediate effect.
The Court so recommends.
Signed on behalf of the Labour Court
Caroline Jenkinson
9th December, 2005______________________
CON/MB.Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Ciaran O'Neill, Court Secretary.