FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : ANCHOR TRAINING LTD. - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Grier Worker Member: Ms Ni Mhurchu |
1. Appeal Of A Rights Commissioner's Recommendation R-056949-IR-07/GC
BACKGROUND:
2. When the Claimant was made redundant by the Respondent on 27th September 2007 she received the statutory redundancy terms based on service from 12th February 2003. The Union claims that the Claimant commenced employment with the Respondent in July 2001 and that the redundancy terms should have been based on this earlier date and on the enhanced redundancy terms which are the norm for the sector. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 16th May, 2008 the Rights Commissioner issued the following Recommendation:-
- “Based on the submission made, I consider the service of [the claimant] should be taken from July 2001. I recommend that the claimant should receive enhanced redundancy terms. I recommend that the terms of three weeks per year of service, plus statutory”.
The Claimant was named in the Rights Commissioner's Recommendation. On the 26th June, 2008, the Claimant appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969.A Labour Court hearing took place on the 12th August, 2008, the earliest date suitable to the parties.
UNION'S ARGUMENTS
3. 1. The Claimant commenced employment with Baldoyle Community Employment Project (Baldoyle Forum Ltd) in July 2001, and was transferred to the Respondent on 12th February 2003 with no break in service.
2. The Claimant's unbroken employment from July 2001 until September 2007 means she had an entitlement to four weeks notice.
3.Enhanced redundancy payments of five weeks per year of service are the norm in this sector.
EMPLOYER'S ARGUMENTS:
4. 1. The Claimant did not commence employment with the Respondent until February 2003. The Respondent has no connection or association with the Claimant's previous employer,the Good Shepherd Pastoral Centre Community Employment Scheme.
2. Prior to her commencing employment with the Respondent in February 2003, the Claimant was employed on a Commuity Employment Scheme, which is a supported work and training programme designed to assist long term unemployed people back to the workforce. The calculation of her service for redundancy payments, therefore, should be taken from February 2003.
3. The concession of this cost-increasing claim would have serious financial implications for the sector.
DECISION:
There is a serious conflict between the parties on the chain of continuity from the commencement of the Claimant's employment with the Good Shepherd C.E. scheme and the termination of her employment with Anchor Training Ltd.
On balance it would appear to the Court that there was no transfer between these employments in the technical sense. However, having regard to all the circumstances of the case, and the clearly discernable connection between the various bodies for which the Claimant worked, the Court recommends that, on a strictly without prejudice basis, the Claimant be credited with five years service for redundancy purposes.
With regard to the ex-gratia lump sum, the Court upholds the multiplier recommended by the Rights Commissioner, which, in the Court's view, is fair and reasonable in the circumstances of this case. The Court notes, however, that the financial circumstances of the employer in this case will not permit this amount to be paid out of its own resources. The Court recommends that the parties should cooperate with each other in seeking funding to discharge the amount recommended.
Signed on behalf of the Labour Court
Kevin Duffy
27th August, 2008______________________
JMcCChairman
NOTE
Enquiries concerning this Decision should be addressed to Jonathan McCabe, Court Secretary.