FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : INSTITUTE OF TECHNOLOGY SLIGO (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Mr Nash |
1. Appeal of a Rights Commissioner's Recommendation R-082937-Ir-09/SR
BACKGROUND:
2. The worker commenced employment with the Institute on a fixed-term contract on 21st November, 2005. She was placed on a number of fixed-term and specified contracts, the last one from May, 2008, to April, 2009. The worker's case is that she expected to be permanently employed but, in the event, she was let go on 30th April, 2009. The worker believed that she was entitled to a redundancy payment. The Institute rejected the claim and the case was referred to a Rights Commissioner. His recommendation was as follows:
"I have carefully considered all of the evidence and submissions made and I have concluded as follows:
The dismissal of the Claimant and the reasons for same does not satisfy the criteria and definitions of redundancy as laid down by the 'Redundancy Payments Acts 1967-2007', accordingly the Claimant's dismissal cannot be said to be by reason of redundancy as laid down by that Act.
However, I note that the claim was for a 'severance payment' as distinct from a redundancy payment - and while the two expressions (redundancy and severance) are frequently used interchangeably they are distinct and different matters. Severance payments/agreements generally incorporate and include more than basic statutory redundancy payments and frequently cover persons not covered for statutory redundancy entitlements (e.g. those with less than 2 years' service).
Severance payments are the accepted 'norm' in cases where workers with a reasonable length of service are losing their jobs on an involuntary basis.
There is considerable merit in the claim and it is upheld.
All of the examples quoted by the Claimant of severance payment included statutory redundancy payment, which as noted earlier do not apply in this case. Taking this factor into account the examples quoted by the Trade Union then became; 5 weeks pay per year of service, 4 weeks pay per year of service and 3.5 weeks pay per year of service - the midway point of these 3 examples quoted would be just in excess of 4 weeks pay per year of service. The Claimant was employed by the employer for 3.42 years (3 years and 5 months) and her weekly rate of pay €613.00c. 3.42 years multiplied by 4 weeks equals 13.68 weeks multiplied by €313.00c equals€8,385.84c.
I recommend that the employer pay the Claimant the sum of €8,385.84c in full and final settlement of all claims in relation to her employment and the termination of same. This recommendation is particular to the unique facts and circumstances of this particular case and it cannot and will not be used or quoted by either party (or anyone else) in any other case.
The Institute appealed the recommendation to the Labour Court on the 10th March, 2010, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 5th November, 2010, in Sligo.
INSTITUTE'S ARGUMENTS:
3. 1. The worker's contract ended in April, 2009, when the substantive post-holder that the she had covered for returned to her grade 4 post.
2. The Union's claim was for a "redundancy payment". The Rights Commissioner accepted that no redundancy situation existed but chose to award a "severance payment". The Institute believes that this was an erroneous interpretation and that no payment is warranted.
UNION'S ARGUMENTS:
4. 1. The Institute is a statutory state employer funded by the Department of Education and Science. As such its employees' rights would be the same as those of Civil Servants or employees in Local Authorities and VECs.
2. The worker has found it impossible to find similar or even regular work since she was let go from the Institute.
3. The Union is aware that a colleague with less service than the worker concerned was appointed permanently by the Institute.
DECISION:
It is conceded that the Claimant's employment did not come to an end by reason of redundancy. Consequently, the claim now under consideration is for the payment of compensation by reason only of the expiry without renewal of a fixed-term contract.
The Court has not been referred to any example of a compensatory payment having been conceded in similar circumstances elsewhere in the public sector. In these circumstances, and in the absence of any precedent for the claim, the Court cannot uphold the Rights Commissioner's recommendation.
Accordingly, the Court must allow the employer's appeal and set the Rights Commissioner's recommendation aside.
Signed on behalf of the Labour Court
Kevin Duffy
18th November, 2010______________________
CONChairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.