FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : AN POST - AND - A WORKER (REPRESENTED BY EUGENE F. COLLINS SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Nash |
1. Appeal of Rights Commissioner's Recommendation R-036004-IR-05/GF.
BACKGROUND:
2. The worker joined An Post in the position of Chief Welfare Officer in November 1995. In 2002 an Early Retirement and Voluntary Severance Scheme was circulated to all members of staff. The worker applied for voluntary severance and was rejected.
In December 2003 the worker was offered voluntary severance by the Director of Human Resources, conditional on securing alternative employment. In March 2004 the worker secured a new position and applied for the voluntary severance package. His application was turned down. Consequently he turned down the new position.
On the 29th July 2004 An Post made a written offer of voluntary severance to the worker. No specific date was set for the return of the acceptance form. On the 31st January 2005 the worker informed An Post that he wished to avail of the voluntary severance as he had a new offer of employment. Six weeks later the Company informed the worker that they would not honour the voluntary severance agreement, stating that he did not have an entitlement to it. The worker communicated his decision to resign on the 24th February 2005 and stated that he did so in order to avail of the offer of voluntary severance.
The issue was referred to a Rights Commissioner for investigation and recommendation. His recommendation issued on the 30th November, 2005, as follows:-
“I have considered this case carefully and I have come to the conclusion that the claimant was offered access to the scheme in an appropriate manner. I am accepting his evidence and his recollection of what occurred. I recommend inhis favour.”
Both the Company and the worker appealed the recommendation to the Labour Court in January, 2006, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Courthearing took place on the 12th April, 2006.
WORKER'S ARGUMENTS:
3. 1.In July 2004 the Worker was offered voluntary severance in writing by the Company. No specific date was set out for return of the acceptance form.
2.The Company was at all times aware that the Worker was applying for positions outside the organisation in order to be in a position to take up the offer of voluntary severance.
3. The Worker applied for a new position within the organisation in order to keep his options open. He was never offered the position.
COMPANY'S ARGUMENTS:
4. 1.At the first interview for the new position the Worker clarified the status of his earlier application for voluntary severance and in doing so withdrew the application.
2. The Worker was offered the new position in December 2004.
3. At no stage during the second interview did the Worker state that he was only waiting for an external offer of employment as he had an exit commitment from An Post in relation to voluntary severance.
DECISION:
The case before the Court deals with the cross appeals by both sides of the Rights Commissioner’s recommendation, which found in favour of the Claimant’s claim for the payment of a voluntary severance package under the terms of the Company’s Voluntary Severance Scheme (the Claimant’s appeal was for enforcement of the recommendation only). The Employer appealed the recommendation on the basis that the Claimant was not entitled to a voluntary severance package as he had voluntarily resigned from the Company to take up alternative employment and his position within the organisation had not been declared redundant.
The claimant, the Chief Welfare Officer, had on two separate occasions sought to avail of the Company’s Voluntary Severance Schemes in the past but had been declined.
A Voluntary Severance Scheme was offered to all staff who wished to avail of the scheme in June 2004; the Claimant applied on 25th June and was informed on 29th July 2004 that his application was successful. Comprehensive details of his severance package were given to him. Prior to and during this time he was actively seeking employment elsewhere. The Claimant told the Court that he had made management fully aware of this at the time.
Following a Labour Court recommendation on the Company’s change proposals, positions in a new management structure were advertised as part of the implementation of the Company’s Strategic Recovery Plan. This required the Claimant to apply for the position previously held by him, which was now entitled Welfare Manager. At this stage the Company’s Voluntary Severance Scheme was only available to those who did not obtain a job in the new management structure and to those jobs which were “unassigned”.
The Court notes that there is dispute between the parties as to what transpired at the first interview for the post on 8th November 2004. The Claimant stated that when he was asked about the status of his voluntary severance application, he replied that he needed to be “in situ” in order to secure an outside post and avail of voluntary severance. Management on the other hand stated that he replied that his interest was now in securing the Welfare Manager’s position and not in voluntary severance.
After the second interview, the Claimant received a telephone call from management stating that he had been successful and that he would need to meet with the Chief Executive. He was never given a written offer of employment or a contract of employment for the new position. Although management maintained that he had accepted the offer of the new position, there is no record of this. He signed acceptance of the Company’s Voluntary Severance Scheme on 29th January 2005.
At around this time, he was offered a position externally which he found acceptable and consequently resigned on 24th February 2005, to take effect on 6th April 2005. Prior to his resignation he had sought clarification of his voluntary severance application. When he was refused at that stage he sought legal advice.
The Court has considered the views of the parties expressed in their oral and written submissions. In reaching its conclusion in this case, the Court is influenced in reaching its findings by the following:
•the Claimant made an application which was subsequently approved under the Company’s Voluntary Severance Scheme,
•the approval was never withdrawn,
•there was no closure date on the approval given,
•while he was told that he had been successful in his application for the post of the Welfare Manager he had no formal offer of the job,
•the process with regard to the selection process was not completed as the required meeting with the Chief Executive ultimately never took place,
•it was well known within management that he was actively seeking alternative employment,
•he remained in his post as Chief Welfare Officer on the same basis as it was prior to the interview for the post of Welfare Manager,
•management made no attempt to clarify the position concerning any offer to him of the Welfare Manager post despite his acceptance of the Company’s Voluntary Severance Scheme made on 29th January 2005 and the legal representations made on his behalf.Taking all these factors into account the Court is of the view that the matter was handled in an unstructured manner following the interview on 8th November 2006, his situation remained substantially the same following that process and he was entitled to believe that his approved application under the Company’s Voluntary Severance Scheme was valid and still available to him.
Consequently, the Court upholds the Right’s Commissioner’s Recommendation and disallows the Company’s appeal. The Company should without delay honour the terms of the Voluntary Severance Scheme as approved for the Claimant in July 2004.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
24th April, 2006______________________
MG.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Madelon Geoghegan, Court Secretary.