FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TEAGASC - AND - A WORKER DIVISION : Chairman: Mr McGee Employer Member: Mr Grier Worker Member: Ms Ni Mhurchu |
1. Appeal of Recommendation of a Rights Commissioner R-057948-IR-07/SR
BACKGROUND:
2. The worker was employed since 1977 in the Irish Countrywomen's Association (ICA) as College Principal in the ICA's College of Horticulture. The post was initially funded by the Department of Agriculture and subsequently by Acot and then Teagasc. When the College closed in June, 2003, Teagasc took responsibility for the relocation/redundancy of all college staff whose salary they recouped.
The worker's case is that he was to be offered a choice of voluntary early redundancy (VER) or redeployment in Teagasc to a post of similar standing to his previous post of College Principal. The majority of staff in the ICA college were given the same option in early 2004 and, if redeployed, were given 10 months to decide on the VER option. After discussions with the Heads of Personnel and Education the worker was informed that he was being considered for a specialist post in Teagasc. The post was as a lecturer in the Botanic Gardens and he started on the 1st October, 2004. The worker took up the post believing that it was temporary and that he would be offered a position commensurate with his previous post. He wrote to the Head of Personnel on the 6th October, 2004, and was told that the closing date for application to the VER was 31st December, 2004. He wrote back on the 17th December, 2004, asking for an extension of time to make a decision but received no reply. In September, 2005, as he had not been offered a senior position as promised by Teagasc he sought a job-sharing arrangement. In March, 2006, he wrote to management asking about his options on VER and was told that it was no longer available. He wrote again in September, 2006, but nothing concrete came of it. In January, 2007, Teagasc informed him that it had never received letters seeking an extension of time in regard to VER.
The worker referred his case to a Rights Commissioner whose recommendation was as follows:
"While I am sympathetic to the claimant's circumstances and reasons for wishing to avail of the VER, it is a fact that his application to avail of the VER was received some 14 months after the date of closure of that scheme.
It is a fact that the claimant was aware of the closure date for his application was 31st December 2004. Apart from the submission from the employer that he was aware of this from the 2003 negotiations on the closure of an Grianan College of Horticulture, he in fact received confirmation of this by letter of 1st November 2004, and it was open to him to apply for VER at that stage subject to outstanding matters being sorted to his satisfaction, if necessary with the assistance of the Rights Commissioner Service, the Labour Relations Commission and the Labour Court as appropriate.
The employer claims they have no record of receiving the claimants letter of 17th December seeking an extension of the time allowed to avail of the VER. He has confirmed that he received no acknowledgement from the employer of this letter. Given the imminent deadline and the importance of this to the claimant it is difficult to comprehend why he did not follow up on the matter.
I cannot accept that it is reasonable in the circumstances to expect the employer to re-open the VER some 14 months after the closure date, with all the potential consequences that could flow from such a decision, when the claimant was aware of the closure date. Accordingly I must reject the claimant's complaint, and his complaint fails."
The worker appealed the recommendation to the Labour Court on the 20th March, 2008, in accordance with Section 13(9) of the Industrial Relation Act, 1969. A Labour Court hearing took place on the 17th July, 2008.
WORKER'S ARGUMENTS:
3. 1. The worker applied for an extension of time on the 17th December, 2004. He received no reply but, unfortunately, this was not unusual where Teagasc was concerned as several letters he wrote were not replied to.
2. The worker was informed by his Line manager that he had blocked the application for VER as it would have meant that the post would be lost if the application was granted.
3. The worker was given very little time to decide on VER compared to other employees. He was not informed that he could opt for VER but delay the date by some considerable time as other staff members were allowed.
TEAGASC'S ARGUMENTS:
4. 1. The worker, like all staff, was aware of the closing date for opting to take VER. In the circumstances, it would be unreasonable to expect an employer to re-open a VER scheme 14 months after its closure.
2. Before taking up his post of Lecturer in the Botanic Gardens the worker would have been aware that there was no post at Principal level available. There was no suggestion by management that the post of Lecturer was of a temporary nature.
3. Opening a new VER scheme would have set a precedent for other staff who may also consider that their circumstances had changed since the relevant VER closure date.
DECISION:
Taking into account the written and oral submissions made to it by the parties, the Court decides to uphold the Recommendation of the Rights Commissioner.
The Court would also urge the parties to re-engage directly in order to discuss and agree, as a matter of urgency, the most advantageous exit package possible for the claimant, assuming that this is still his wish.
The Court so decides.
Signed on behalf of the Labour Court
Raymond McGee
30th July, 2008______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.