FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : ARAMARK IRELAND (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr Nash |
1. Redundancy
BACKGROUND:
2. The Union's claim is for an enhanced redundancy payment on behalf of 6 workers (contract cleaners) employed by the Company, formerly known as Campbell Catering. Up to 2005 the workers had been employed directly by the Salvation Army at Cedar House, a shelter for homeless people in Dublin City centre. Aramark Ireland took over the contract in November, 2005, under a Transfer of Undertaking. The Union claims that as part of the Transfer it was agreed that any subsequent improvement in conditions for directly employed staff in Cedar House would also apply to the 6 workers concerned. In January, 2010, it was indicated that Cedar House was to close in March, 2010, due to significant cuts to funding but, in the event, the closure did not take place at that time. A number of directly-employed staff received a redundancy package of statutory redundancy plus 2 weeks' pay per year of service. However, when the 6 workers concerned became redundant they received statutory redundancy only. The Union is seeking that they receive the same package as the other workers i.e. an ex-gratia payment of 2 weeks' pay per year of service. The Company's case is that the 6 workers sought redundancy, having rejected offers of other work within the business (there was some disagreement between the parties at the Labour Court hearing as to the offers of work.)
The dispute was referred to the Labour Relations Commission (LRC) and a conciliation conference took place. As the parties did not reach agreement, the dispute was referred to the Labour Court on the 2nd February, 2010, in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 2nd June, 2011.
UNION'S ARGUMENTS:
3. 1. Working conditions for the 6 claimants became increasingly difficult and hazardous in 2010 (details supplied to the Court). The workers objected on health and safety grounds. Whilst there was some discussion with the Company about redeployment no meaningful offers were made.
2. It is clear that when the workers transferred to the Company in 2005 their conditions were honoured. It was also agreed that any future conditions applying to other staff would also apply to the 6 workers and the Company has not disputed this. However in the case of the redundancy terms this has not happened.
COMPANY'S ARGUMENTS:
4. 1. The 6 workers were not made redundant; they sought redundancy despite being offered alternative work with existing pay and conditions of employment. The Company spoke with the Union on a number of occasions in an effort to sort out the matter.
2. Staff who received the ex gratia payment did so as they were made redundant. In the case of the workers concerned they chose redundancy. Statutory redundancy is the norm in the industry in such cases. The Union was made aware of the situation at the conciliation conference. The Company does not have any funds to pay an ex-gratia payment.
RECOMMENDATION:
The dispute before the Court concerns the Union’s claim for an ex-gratia redundancy payment on behalf of 6 claimants made redundant in November 2010. The claimants had been employed as cleaners directly by the Salvation Army in Cedar House. In 2005 Aramark Ireland took over the cleaning contract and the employees transferred to that company under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003. The Union sought 2 weeks pay per year of service plus the statutory redundancy entitlement as paid to direct employees of the Salvation Army made redundant in September 2010.
The Company submitted to the Court that there was no compulsory redundancy and the claimants concerned were offered alternative employment but declined the offers made. The Union disputed that alternative employment offers were made and held that the claimants had no option but to be made redundant.
Having considered the submissions of both sides, the Court is satisfied that alternative employment was available to the claimants at their protected terms and conditions of employment and in all the circumstances does not find in favour of the Union’s claim for enhanced redundancy terms. Accordingly, the Court rejects the Union’s claim.
The Court so recommends.
Signed on behalf of the Labour Court
Caroline Jenkinson
13th June, 2011______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Ciaran O'Neill, Court Secretary.