FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : STURDY PRODUCTS LIMITED (REPRESENTED BY MANAGEMENT SUPPORT SERVICES (IRL) LTD) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr McGee Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioner's Recommendation R-042121-Ir-06/MMG.
BACKGROUND:
2. The worker commenced employment with the Company in February, 2001, following his arrival from the Phillipines. The Company is involved in the manufacture and distribution of rotationally moulded products. The Company's case is that because of increasing trading difficulties it had to make savings in different areas, including a number of redundancies. The Company sought 6 redundancies but, as two employees left of their own accord, this was reduced to four. The worker concerned was one of those selected on a "last-in, first out" (LIFO) basis. The Company claims that the worker had indicated prior to the selection process that he wished to avail of the redundancy process, something the Union strongly denies. The Union believes that the worker was chosen for redundancy because of his Trade Union activity.
The dispute was referred to a Rights Commissioner and his Recommendation was as follows:-
"Both parties presented detailed and extensive verbal and written submissions to the hearing.
Having carefully considered the evidence as presented to the hearing I am of the opinion that the claimant has presented a valid complaint.
It would appear that very little, if any notice, was given to the individual selected for the process of exiting through redundancy, nor the selection criteria utilised. I feel sure that the Company was experiencing some trade difficulties and felt that they had to look at their situation but there were no figures or evidence presented to demonstrate the cost saving or impact of letting specific personnel leave the Company.
With regard to the grading structure it is apparent to me that employees in a higher grade would have more permanent skill sets, experience and understanding of the Company's policy procedures and requirements than relatively new employees brought in who would still be on the lower grade. It is evident that the selected employee was not offered the opportunity to drop down to a lower grade which may well have been a consideration for him and therefore retain a higher skill set within the operation nor was there any evidence in relation to offer the said employee an opportunity to return to work when a recruitment opportunity arose.
I am satisfied that the Company did not operate within the normal constraint of recognised procedures and natural justice in this matter and feel that the employee was unfairly treated in this regard.
The claimant has mitigated his situation, notwithstanding his difficulty in relation to his work permit, by obtaining alternative employment some weeks later. I therefore, consider compensation as the appropriate form of redress and recommend that he receive the sum of €4000 in compensation from the Company under the auspices of the Industrial Relations Act".
The Company appealed the Recommendation to the Labour Court on the 6th of December, 2006, in accordance with Section 13(9) of the Industrial Relations Act, 1969. Labour Court hearings took place on the 1st of March, 2007, and the 21st May, 2007.
COMPANY'S ARGUMENTS:
3. 1. At a meeting on the 20th of January, 2006, the worker, after being told that he was selected for redundancy, asked to be paid in lieu so that he could leave that day. He had previously approached the Company on two occasions seeking to be made redundant.
2. Whilst the Company has employed some new workers since January, 2006, it is only because other employees have left and created vacancies. The Company understands that the worker concerned found a new full-time position within a week of being made redundant.
UNION'S ARGUMENTS:
4. 1. The worker was issued with a "fait accompli" - being selected, notified and requested to terminate his employment on the same date i.e. 20th January, 2006, one month short of five years' employment. This could have serious implications for his residency status in Ireland.
2. The Union has been unable to establish the selection criteria used by the Company in relation to the redundancy notices. A number of employees with less service than the worker concerned were retained.
DECISION:
Having considered the submissions and oral evidence given in this case by the parties, the Court is of the view that considerable confusion and mutual misunderstanding between the parties pervaded the whole episode of the claimant's dismissal through redundancy.
The Court, however, is of the view also that the procedures adopted by the Company were deficient and incompatible with good industrial relations practice.
The Court upholds the Recommendation of the Rights Commissioner and dismisses the appeal.
The Court so decides.
Signed on behalf of the Labour Court
Raymond McGee
7th June, 2007______________________
CON/MC.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.