FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : IRISH RAIL - AND - A WORKER (REPRESENTED BY JOHN HORGAN) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Ms Ni Mhurchu |
1. Redundancy Terms
BACKGROUND:
2. The issue before the Court concerns a claim by worker that the amount paid to him on retirement was unfairly reduced. The worker was employed by the Company since 1968. In August, 2009 he applied for early retirement under the Company's Voluntary Severance Scheme. The worker was given an estimate of his overall severance package and a final date of employment. The worker was subsequently advised that he would not be allowed finish on the given date as his position by the nature of it being a voluntary severance, had to be suppressed or backfilled by a suitable surplus colleague. It is the Company's position that a new date of the 16th April, 2010 was agreed between the parties and that the worker had signed off on a new agreed severance package. The severance amount was less than previously estimated. The Company argue that employees exiting on voluntary severance terms do so and have done so in accordance with the terms applicable at the time of their departure.
On the 4th June, 2010 the Union referred the issue to the Labour Court, in accordance with Section 20(1) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 9th September, 2010.
The Union agreed to be bound by the Court's Recommendation.
WORKER'S ARGUMENTS:
3. 1 It is accepted that its a voluntary severance but the worker was treated unfairly. The second offer was only accepted because there was a fear that the next offer would be worse again.
2 The worker has had problems with the Company previously. The most recent case concerned the non-payment of a pay increase to him.
3 The worker has been unfairly deprived of the full benefit of the early retirement scheme when he applied for it.
COMPANY'S ARGUMENTS:
4. 1 The worker was advised that a surplus member of staff must be in place and undertaking the duties prior to him being able to avail of severance. As soon as this happened, the worker concerned exited on voluntary severance under the terms applicable at the time.
2 The worker signed off and accepted the severance package.
3 Voluntary Severance is voluntary on both sides, an employee is not forced to exit under such schemes but neither is the employer under obligation to allow the employee exit.
RECOMMENDATION:
The net issue for consideration in this case is whether a basis exists on which the severance settlement reached between the Claimant and the Company can be reopened.
While there was some confusion on the point, it appears clear that while the Claimant had been given an indicative exit date of September 2009, he was never formally on notice, nor had any formal agreement been concluded, that his employment would terminate at that stage. It is further noted that the Claimant reactivated his application for voluntary severance after the terms of the package has changed, and in the knowledge of that change. Moreover the Claimant accepted the terms offered in full and final settlement of all claims against the Company.
Having regard to all the circumstances of the case the Court cannot identify any reasonable basis upon which it could recommend concessions of the Claimant's claim.
Signed on behalf of the Labour Court
Kevin Duffy
27th September, 2010______________________
DNChairman
NOTE
Enquiries concerning this Recommendation should be addressed to David P Noonan, Court Secretary.