FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : DUN LAOGHAIRE RATHDOWN COUNTY COUNCIL - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Hayes Employer Member: Ms Doyle Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioners Recommendation No: r-111901-ir-11-EH
BACKGROUND:
2. This is an appeal by the worker of Rights Commissioners Recommendation No: r-111901-ir-11-EH. The issue concerns a former employee of Dun Laoghaire Rathdown County Council who applied for a voluntary redundancy package but was unsuccessful in his application. The Union's position is that the worker's application for redundancy should have been accepted given that he had already been told his position would not be replaced following his retirement. In addition the Union contends that the worker had such long service and was so close to retirement that management could easily have accepted his application.
The dispute was referred to a Rights Commissioner for investigation. His Recommendation issued on the 6th January 2012 and did not find in favour of the worker's claim.
On the 6th February 2012, the worker appealed the Rights Commissioner's Recommendation in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on 3rd May, 2012.
UNION ARGUMENTS:
3 1 The worker's position in the organisation would not be filled following his retirement. In such circumstances, a legitimate redundancy situation existed and the worker should have benefitted from the scheme on offer.
2 It is the Union's contention that this refusal was based on age which is totally unfair and unacceptable.
COMPANY'S ARGUMENTS:
4 1 The worker was required up until his retirement for operational reasons. His non-replacement was as a result of the current moratorium on recruitment and not as a result of the position being redundant.
2 The decision to refuse the application was not related to the age of the worker. As the scheme was voluntary in nature, it was the worker's decision to apply and management's prerogative whether or not they accepted the application. As previously mentioned the worker was refused on the basis of operational needs and for no other reason.
DECISION:
The Court has carefully considered the submissions of both parties to this dispute.
In 2010 the employer put a voluntary severance scheme on offer to all outdoor staff. The terms of the scheme were that anyone employed in the affected grades could apply to avail of the offer. Management reserved the right to accept or reject any such application. The Complainant's application was rejected. As a result he continued at work until his retirement in October 2011.
The Complainant submits that his application had been unfairly rejected by the local authority. He submits the decision to reject his application had been partially influenced by his age. The Local Authority submitted that it was rejected because there was no continuing requirement for his services.
It is a fundamental feature of a voluntary redundancy scheme that a worker is, without pressure or coercion, free to apply to participate or abstain from participation in it. Equally an employer is free to accept or reject the application.
In this case the worker applied to participate in the scheme and the employer rejected the application.
Accordingly, the complainant's appeal cannot succeed.
The Court notes that management went on then to explain the reason for its decision to the employee. The Court found none of the explanations coherent, consistent or persuasive. Consequently the Court understands why the complainant felt he had been unfairly treated by the Local Authority.
The Court takes the view that the local authority should take responsibility for this failure and address the matter directly with the former employee concerned.
However these shortcomings do not of themselves alter the fundamental nature of the voluntary severance scheme.
Decision
The Court rejects the appeal and upholds the Rights Commissioner's Recommendation.
Signed on behalf of the Labour Court
Brendan Hayes
18th May 2012______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.