FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : NATIONAL EDUCATION WELFARE BOARD (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION) DIVISION : Chairman: Mr McGee Employer Member: Mr Grier Worker Member: Mr Nash |
1. Appeal of Rights Commissioner's Recommendation R-041331-IR-06-DI.
BACKGROUND:
2. The worker joined the School Attendance Service as a School Attendance Officer in 1984. The Education Welfare Act, 2000, repealed the School Attendance Act, 1926, and as part of this new legislation the National Education Welfare Board (the Board) was formed. In February 2003, the Chief Executive Officer of the Board offered all Attendance Officers a choice as follows :-
1.To be appointed as an Educational Welfare Officer (EWO) or
2. To apply for Voluntary Early Retirement (VER)
3. To continue to perform similar functions to those carried out by them, up until the 5th July 2002, except where this would conflict with the Educational (Welfare) Act, 2000.
The worker chose option 2. Labour Court Recommendation LCR 17549 which issued in July, 2003, recommended that 8 places to be made available for VERs. Seven of the eight places were taken up by School Attendance Officers who were over the age of 50. The worker, who was not yet of age to take retirement,also applied and in October, 2004, requested that her application for VER be kept on file until her 50th birthday.
In December, 2005, the HR Manager of the Board wrote to the Department of Education and Science outlining the worker's application for VER. The Department rejected the application in January, 2006.
The Union referred the case to the Rights Commission and his Recommendation was as follows :-
"Having considered the submissions made by the parties I find against the claimant's claim that she be allowed leave the respondent's employment on VER terms.
In October 2004 the Claimant wrote to the respondent organisation requesting that her application for VER be kept on file until she reached her 50 th birthday. On 25th May 2004 Human Resources confirmed to the claimant that her appointment as an EWO would not preclude her from applying for VER at some point in the future. I recommend that the claimant be offered the opportunity to be appointed as an EWO retrospective to October 2004. The acceptance of this offer would be in full and final settlement of the claimant's complaint."
The worker did not take the EWO position and has worked as a member of the Board since its inception.
The Union appealed the Recommendation to the Labour Court on the 14th of November, 2006, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 13th of June, 2007.
UNION'S ARGUMENTS:
3. 1. At all stages throughout the process the worker was informed that the VER package would be available to her. Refusal to allow her access to thescheme places her in a very difficulty position vis a vis her career.
2. The imposition of a "deadline" by the Department of Finance a number of years after the agreement was reached is totally unacceptable. At no stage was a deadline ever mentioned.
3. Given that a limit of eight places was set for the VER scheme there is no danger of follow on claims.
BOARD'S ARGUMENTS
1. The H.R. Manager met with the worker to discuss the possibility of becoming an EWO. She assured the worker that were she to accept the post it would not preclude her from applying for VER in the future. The worker chose not to apply for the post.
2. VER is not available on an ongoing basis but only applies in certain circumstances. As only seven out of the eight applicants met the criteria in 2003 the eight sanctioned VER post has expired.
3. The Board, in principle, is not against granting the worker VER but it needs the consent of the Department of Education and Science and Department of Finance, and this is not forthcoming
DECISION:
The Court has considered the oral and written submissions made to it.
In its consideration, the Court has taken account of:
- LCR no 17549, in which the Court recommended that a limit of 8 persons be allowed to leave on VER. Only 7 left and the Board understood that it could hold the 8th position vacant until the worker concerned reached the qualifying age for VER, which it appeared to feel that it had the power to do.
-The fact that the NEWB supported the worker's application for VER.
-The fact that, contrary to information in the letter written to the NEWB from the Department of Education and Science dated 17th Febuary, 2006, there was no known deadline for consideration of applications for VER, nor was the worker at any time offered a severance package.
- The commitment from the Union that, this being the last of the 8 positions made available in LCR 17549, there would be no consequential claims.
The Court, accordingly, overturns the recommendation of the Rights Commissioner and concedes the claim made by the Union.
The Court so decides.
Signed on behalf of the Labour Court
Raymond McGee
2nd July, 2007______________________
CON/GH.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.