FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : TRINITY COLLEGE - AND - IFUT DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Ms Ni Mhurchu |
1. Breach of Clause 1.6 of Public Service Agreement.
BACKGROUND:
2. This case concerns a dispute between Trinity College Dublin (represented by IBEC) and the Irish Federation of University Teachers (IFUT) in relation to an alleged breach by the College of Clause 1.6 of the Public Service Agreement (PSA). The Union contends that the College breached the provision of the Agreement as it made the worker compulsorily redundant instead of endeavouring to find suitable alternative employment within the College. The College contends that it is not in breach of the PSA as there are established procedures in place which provide for redundancies in circumstances where the funding of a certain research project has ceased and no suitable options for redeployment or retraining exist.
The dispute was not resolved at local level and was the subject of a conciliation conference under the auspices of the Labour Relations Commission. As agreement was not reached the matter was referred to the Labour Court in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 7th November 2013.
UNION'S ARGUMENT:
3 1 The College is in breach of the PSA as it made the worker compulsorily redundant. The College is required under the PSA to make every effort to redeploy the worker to a suitable alternative position and to provide retraining if necessary. It is not accepted that there were no suitable alternatives in place and the process the College invokes for implementing redundancies is not agreed with the Union.
MANAGEMENT'S ARGUMENT:
4 1 The College is not in breach of Clause 1.6 of the PSA. The Agreement provides that no compulsory redundancies will apply in the Public Service except where existing exit mechanisms exist. There are many examples of situations similar to this where redundancies are implemented as a result of a cessation in funding for particular research projects and no suitable alternative vacancies exist.
RECOMMENDATION:
The issue before the Court concerns a claim by IFUT that the
College was in breach of Clause 1.6 of the Public Service Agreement 2010 – 2014 (the Agreement) when it made the Claimant compulsorily redundant on 31stMay 2012. Both parties advised the Court that in accordance with the terms of the Agreement, they agreed to be bound by the Court’s Recommendation.
Clause 1.6 of the Agreement provides that compulsory redundancy will not apply within the Public Service, except where existing exit provisions apply. In order to retain and secure employment in the Public Service the Agreement provides that compulsory redundancies are subject to consideration of redeployment arrangements, including examining whether there are opportunities for re-skilling and/or re-assignment.
The Union stated that the Claimant was on a contract of indefinite duration and as such the College should have managed the situation by using the flexibility, redeployment and retraining provisions set out in the Agreement or, as appropriate, through a scheme of voluntary redundancy.
The College told the Court that the Claimant was made redundant upon the cessation of the work in which she was engaged in coupled with the cessation of the research funds which supported her employment. It stated that this redundancy occurred following extensive efforts made to identify suitable alternative employment for her. The College stated that it had a well-established, generally applied practice of exiting staff upon completion of their research work or upon cessation of the non-core, research funding directly supporting their employment and where no alternative employment opportunities were identified. Over the past nine years the College told the Court that there were over three hundred such cases.
The Union disputed this position and stated that there was no agreed practice in place.
The Court notes the letter dated 6thApril 2011 from the Department of Education and Skills to the PSA Education Sector Implementation Group which referred to Clause 1.6 of the Agreement and statedinter aliathat while such protection was provided in the Agreement, Universities have always made externally funded researchers redundant where funds were not available and where no alternative research vacancies exist. It stated that there will always be a substantial turnover or “flux” in research employment in higher education and the established procedures in place in respect of redundancy reflect this reality. It stated that the commitment given in the Agreement did not apply to this cohort of staff as a pre-existing exit mechanism is well established for soundly based reasons, for research staff in the sector.
This letter was followed by a letter dated 17thFebruary 2012 from the Implementation Body outlining the position on compulsory redundancy within the Public Sector. It statedinter alia:
“There are established practices for making public servants redundant in appropriate circumstances, on the expiry of employment contracts or where redundancy terms have been agreed or generally applied. It was not intended that these practices would be superseded by the Agreement.
The Body has concluded that the question of whether there is an established practice is a matter of fact, not of interpretation.”
The Court has taken full account of the terms of the Agreement as clarified by the Implementation Body by letter 17th February 2012.
By virtue of the terms of the Agreement and the clarification given, the Court is of the view that employees who are exclusively employed on externally funded research work and where such funding ceases they become a direct charge of the College, thereby putting the onus on the College to endeavour to provide alternative duties for the employee in accordance with the terms of the Agreement and where such alternative employment is not possible then redundancy is the only alternative.
The Court has carefully considered the submissions of both parties and taken full account of the Claimant’s employment history and her contracts of employment. The Court notes that her work wholly and exclusively related to Environmental Protection Agency projects and was funded by that organisation until February 2012 when all funding ceased. The Court notes that the College made efforts to find suitable alternative employment opportunities for the Claimant’s area of expertise, a meeting was held in that regard on 14thMay 2012 to outline its efforts to the Claimant and her Union. Furthermore, while endeavouring to place the Claimant in an alternative position the College extended her contract for two months, from 1stApril until 31stMay 2012 by placing her on a contract working on a separate short-term project unrelated to her previous work.
The Court notes that an enhanced ex-gratia redundancy package is available to the Claimant while still allowing her to return to a position in the Public Sector after two years, following her redundancy.
Accordingly, the Court finds that the Claimant's employment was terminated in accordance with the College’s existing exit provisions in line with Clause 1.6 of the Agreement. Therefore the Court does not find that the College was in breach of Clause 1.6 of the Agreement in the circumstances of this particular case.
Signed on behalf of the Labour Court
Caroline Jenkinson
25th November 2013______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Andrew Heavey, Court Secretary.