FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : ANCHOR TRAINING LIMITED - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Grier Worker Member: Ms Ni Mhurchu |
1. Appeal of a Rights Commissioners Recommendation R-056769-IR-07/EOS.
BACKGROUND:
2. The worker began employment on a job initiative scheme (J I Scheme) with Baldoyle Community Employment Project (Baldoyle Forum Limited ) in November, 2000. On the 12th February, 2003, due to a change of funding she was transferred to Anchor Training Limited (the Company) which was funded by the Social Economic Programme operated by Pobal. On the 28th October, 2007, she was made redundant as a result of Pobal's funding being withdrawn. She received two weeks' notice and statutory redundancy payment calculated from the 12th of February, 2003. The Union's case is that there was no break of service when the worker transferred to the Company and is seeking an enhanced redundancy package. It referred to a previous Labour Court hearing - Anchor Training Limited v a Worker, AD0857 - which had similar circumstances. The Company maintains that it is a stand-alone company and that there was no continuity of service from Baldoyle Forum Limited.
The Dispute was referred to a Rights Commissioner and her recommendation is as follows:
"While acknowledging the employer's reliance on the contract of employment submitted at the hearing and signed by the Claimant with respect to Anchor Training Ltd. I note that the Claimant's position as administrative assistant did not change. I also note the reliance placed by the Union on the Claimant's behalf in relation to the fact that no Letter of Resignation was submitted by the Claimant.
I also note the submission at the hearing by the employer with respect to funding arrangements for Anchor Training Ltd. and with respect to the fact that Baldoyle Forum Ltd. was in fact the promoter of Anchor Training Ltd. Based on the chronology of events about which there was no dispute between the parties in relation to the setting up at Anchor Training Ltd. consider it legitimate for the Claimant to have had an expectation when she signed up with Anchor Training Ltd. to have her previous service reckonable in the context of redundancies. Taking account of the oral and written submissions presented at the hearing, I uphold the claim by the worker to have her service reckonable from November 2000. I recommend enhanced redundancy terms of three weeks per year of service in addition to statutory redundancy together with an additional notice of 2 weeks pay".
The Company appealed the recommendation to the Labour Court on the 14th August, 2008, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 23rd October, 2008.
COMPANY'S ARGUMENTS:
3. 1. The suggestion that the worker was unaware that she was leaving the JI project and being employed by the newly formed Company is incorrect. She was issued with a P45 in February, 2003, and then signed a new contract of employment with the Company.
2. Previous cases cited by the Union (details supplied to the Court) are different in that the workers involved never left the JI scheme and were still funded directly by FAS, a not-for-profit organisation. In the present case the worker left the JI scheme after three years and joined the for-profit Company
UNION'S ARGUMENTS:
4. 1. The worker commenced employment in November, 2000, and continued unbroken until October, 2007. Therefore she had an entitlement to 4 weeks' notice.
2. Previous recommendation issued by the Labour Court and Rights Commissioners in similar cases have recommended enhanced redundancy payments of four to five weeks' pay per year of service and this is now considered the norm in this sector.
DECISION:
The matter before the Court concerns Management’s appeal of a Rights Commissioner’s claim which found in favour of the Claimant’s claim for recognition of her previous service on a job initiative project with Baldoyle Community Employment Project which commenced on 16th November, 2000.
Management maintained that her service commenced with Anchor Training Limited on 10th February 2003. The Appellant organisation was funded through the Social Economy Programme operated by Pobal. Pobal funded the organisation until September, 2007, when as a result of such funding being withdrawn, the organisation became insolvent and the Claimant became redundant on 28th October, 2007.
The Union maintains that the Claimant had no break in service from November, 2000, until she was made redundant in October, 2007.
The Union referred toAnchor Training Limited-v-A Worker, AD0857and held that there were similar circumstances in this case.
Having examined the detail of both submissions the Court is satisfied that in essence this case is similar to the circumstances which prevailed inAnchor Training Limited-v-A Worker, AD0857.
Therefore the Court decides as follows: -
Having regard to all the circumstances of the case, the Court accepts that there is a discernible connection between the two bodies the Claimant worked for and, therefore, recommends that, on a strictly without-prejudice basis, she should be credited with her service back to 16th November, 2000, for redundancy purposes.
With regard to the ex-gratia lump sum, the Court similarly upholds that the multiplier
recommended by the Rights Commissioner was fair and reasonable. 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
Caroline Jenkinson
3rd November, 2008.______________________
CON.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.