FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : COUNTY CORK VEC - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appeal of a Rights Commissioner’s Recommendation - ir116301/11/MR
BACKGROUND:
2. This Claimant began her employment with the cr�che in Fermoy in September 2006. In February 2011 she was told that the cr�che was overstaffed and that she was being transferred to a cr�che in Mallow. She did not own a car and there was no direct bus route between the towns.
In January 2011, the financial viability of the cr�che in Fermoy had become an issue and a meeting was held between Management and the cr�che staff to advise them of the need to reduce staff numbers and to seek voluntary transfers. As no volunteers emerged, the two most junior members (one of whom was the Claimant) were selected for transfer to another cr�che, run by the Employer, in Mallow.
- This matter was referred to a Rights Commissioner for investigation and recommendation. On the 22nd February 2012the Rights Commissioner issued the following Recommendation:-
- “As regards LCR 20193, it would appear that the Claimants in that case were willing to accept alternative proposals other than redundancy. In Ms X case, she declined an offer from her employer of an alternative position, albeit in a location 32 kilometres away.
I note that, the relatively short distance between the cr�ches notwithstanding, there would appear to be no direct bus route between the towns in question. There are, however, alternative ways of travelling between the towns and I note that Ms X confirmed at the hearing that she used to drive to work while working in Fermoy.
Accordingly, having carefully considered the evidence before me, and bearing in mind both the spirit and the terms, specifically Section 4 of Chapter 3, of the Croke Park Agreement, I have concluded that the offer made by the VEC of an alternative position in Mallow was a reasonable one and that the Claimant’s rejection of that offer, over an extended period of time was unreasonable in the circumstances
Given the rejection, it seems to me that it was then reasonable for the VEC to refuse to make any redundancy payment other than the Claimant’s statutory entitlement.
In light of the above, I find that this claim fails”.
- “As regards LCR 20193, it would appear that the Claimants in that case were willing to accept alternative proposals other than redundancy. In Ms X case, she declined an offer from her employer of an alternative position, albeit in a location 32 kilometres away.
On the 2nd April 2012 the Claimant appealed the Rights Commissioner's 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 24th April 2013.
UNION'S ARGUMENTS:
3. 1. The cr�che in Fermoy closed on the 31st May 2012 and the Claimant’s former colleagues received an enhanced redundancy payment despite being offered identical redeployment to Mallow.
2. The Rights Commissioner’s view that there were “alternative ways of travelling between towns” was unfair in the circumstances.
EMPLOYER’S ARGUMENTS:
4. 1. The distance between the two cr�ches is 32km. The Claimant’s security of employment was to be maintained and there would be no change to her terms and conditions.
2. The Claimant refused the transfer over a number of months despite protracted communication between her representatives and the Employer.
3. The Claimant is not entitled to an enhanced redundancy because she was (a) offered suitable alternative employment (b) she refused this offer and (c) she was paid statutory redundancy where there was no provision in the Public Sector for enhanced redundancy.
DECISION:
It is noted that the Claimant was made redundant in circumstances in which her place of employment was being would down. Her colleagues who were made redundant on the eventual closure of the facility were paid enhanced redundancy whereas the Claimant was paid statutory terms only. There were no material differences in the circumstances of the Claimant and those of her colleagues who received enhanced terms.
The Court can see no justification for the difference in treatment afforded to the Claimant relative to that of her colleagues. Accordingly it is the decision of the Court that the Claimant be paid three weeks’ pay per year of service in addition to the statutory terms that she already received.
The appeal is allowed and the Rights Commissioner’s recommendation is varied accordingly.
Signed on behalf of the Labour Court
Kevin Duffy
CR______________________
3rd May, 2013.Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran Roche, Court Secretary.