FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : WEXFORD CREAMERY LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY TECHNICAL, ENGINEERING AND ELECTRICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal of Recommendation of a Rights Commissioner r-121572-ir-12/MMG.
BACKGROUND:
2. The Worker was employed by Wexford Creamery from 20th October 2008 until 20th January 2012 a period of 3 years and 3 months. He was issued with a specified purpose contract of employment which stated that his employment would cease on the return to work of the absent post holder. The post-holder returned to work on the 7th November, 2011 but the Worker's employment ceased on 20th January 2012. The Union argued that the Company by not informing the Worker in writing that his contract would not be renewed placed the Worker on a contract of indefinite duration and entitled him to a redundancy payment. The Company reject the claim stating that they have already paid redundancy to the post-holder and cannot be expected to pay redundancy again for the same post.
The issue involves a claim by a Worker. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 13th November 2012 the Rights Commissioner issued his Recommendation as follows:-
"On consideration of all the evidence as presented to the hearing I have formed the opinion that the claimant has not presented a valid complaint. It is noted that the claimant contributed a significant period to the employment but the contract specifically noted that this was as a temporary employee providing cover for an absent employee. notwithstanding this the employment ceased shortly after the return to work of the post holder. The cessation was appropriate and fair at that time..... It is my opinion that no redundancy occurred whilst the claimant was employed. It is my recommendation that the claim of the claimant for redundancy payment must fail."
On the 17th December, 2012 the Worker appealed the Rights Commissioners Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act 1969. A Labour Court hearing took place on the 30th April 2013.
UNION'S ARGUMENTS:
3. 1. The contract of employment specifically stated that the employment would cease on the return to work of the absent post-holder. The employment continued beyond its specified purpose and as such should be considered as a contract of indefinite duration.
2. The Worker was made redundant on the 20th January 2012 and is entitled to a redundancy payment on that date based on the terms of Labour Court Recommendation Number 20229.
COMPANY'S ARGUMENTS:
4. 1. The contract of employment issued to the Claimant at commencement demonstrated that the employment was temporary so as to provide cover for an absent employee/post-holder. It is the Company's position that the Claimant is not entitled to a redundancy payment..
2. The issue of redundancy did not arise until April 2012 when the post-holder was then offered voluntary redundancy which he accepted.The Claimant was not an employee at that time therefore the issue of redundancy does not arise in his case.
DECISION:
The matter before the Court concerns the Union’s appeal of a Rights Commissioner’s Recommendation, which found against the worker’s claim that he was made redundant when his employer severed his fixed-term contract of employment and also found against his claim for an enhanced redundancy payment.
The employer told the Court that the Appellant was employed on a specified purpose contract on 20thOctober 2008 to cover the sick leave of another employee and that on the return to work of that “absent” employee at the end of 2011, the Appellant’s employment was terminated on 20thJanuary 2012. The employer rejected the contention that a redundancy situation existed as the “absent” employee opted for redundancy in April 2012. The employer held the view that no redundancy situation existed in circumstances where there was only one position being made redundant.
Having considered the submissions of both parties the Court finds that the Appellant’s employment came to an end in circumstances in which his specified purpose contract expired without being renewed and the need for his service had ceased as the purpose for which he was employed no longer existed. The combined effect of Section7(2)(b) and Section 9(1)(b) of the Redundancy Payments Act 1967 makes it clear that the termination of employment in these circumstances constitutes a redundancy. The Appellant is therefore entitled to be paid a statutory redundancy lump sum and the Court recommends that he should be paid an ex-gratia redundancy payment similar to that paid to employees also made redundant around the same time.
The Recommendation of the Rights Commissioner is overturned and the appeal succeeds.
The Court so Decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
14th June, 2013______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to John Foley, Court Secretary.