FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : A UNIVERSITY (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY BREFFNI O' NEILL) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Tanham |
1. Appeal of Rights Commissioners Decision No: r-128110-ft-12/MH
BACKGROUND:
2. This is an appeal by the worker of Rights Commissioners Decision No: r-128110-ft-12/MH submitted in accordance with Section 15(1) of the Protection of Employees (Fixed-Term Work) Act, 2003. A Labour Court hearing took place on 19th March, 2014. The following is the Court's Determination:
DETERMINATION:
This is an appeal by the Complainant against the Decision of a Rights Commissioner made under the Protection of Employees (Fixed-Term Work) Act 2003 (the Act) which found against her claim under Section 6 of the Act. The Complainant referred a claim under the Act to the Rights Commissioner alleging she was treatedless favourably than comparable permanent employees when she was not paid an ex gratia redundancy payment over and above the statutory redundancy terms on being made redundant on 30thJune 2012. The Rights Commissioner issued his Decision on 31stJuly 2013 and decided that the Complainant's claim was not well-founded as she could not rely on Section 5 (1) (c) of the Act to ground her complaint.
Background
The Complainant was employed with the Respondent in the higher education sector on fixed-term contracts from January 2008 until her employment was terminated by reason of redundancy on 30thJune 2012. The fact of redundancy and the Complainant's entitlement to redundancy pay were not in dispute. The Complainant was paid her entitlements under the Redundancy Payments Acts.
On 15thNovember 2012 the Complainant referred a complaint to the Rights Commissioner alleging that, contrary to Section 6(1) of the Act, she had been treated in a less favourable manner than a comparable permanent employee in not being paid the same ex gratia redundancy payment as four identified comparators within the meaning of Section 5 of the Act.
Summary of the Complainant’s Case
The Complainant asserted that she was entitled to the same ex-gratia redundancy payment as that paid to permanent employees within the higher educational sector who were made redundant i.e. she was entitled tofour weeks’pay per year of service plus the statutory redundancy payment. She asserted that the only proper comparable employees were those encompassed by the provisions of Section 5(1) (c) of the Act on the basis that there were no proper comparators encompassed within the provisions of Sections 5 (1) (a) and (b) of the Act. Section 5 (1) (c) of the Act provides that an employee is a comparable permanentemployee where the employee is employed in the same industry orsector of employment as the relevant fixed-term employee. The Complainant held the view that it was appropriate to cite Section 5 (1) (c) to ground her claim as the internal comparator cited by the Respondent under the provisions of Section 5(1) (a) had been a person who had acquired a contract of indefinite duration and accordingly could not be held to be a permanent employee. Therefore, the Complainant contended that as no comparable permanent worker employed by the Respondent was made redundant and there was no relevant collective agreement in operation she was entitled to rely on the provisions of Section 5(1) (c) of the Act for the purposes of identifying a comparable permanent employee.
She cited the following organisations in the Education Sector as appropriate comparable permanent employees within the meaning of Section 5 (1) (c) of the Act. In these organisations permanent employees received four weeks’ pay per year of service in addition to their statutory redundancy entitlement:-
- •Permanent staff of St.Catherine's College of Education for Home Economics
•A permanentemployee ofthe Royal College of Surgeons
•Permanent catering staffin the NUl Maynooth
•A permanent employee in Wexford VEC
Furthermore in support of her contention she cited Labour CourtDetermination FTD 1121University College CorkandDr. Naomi Bushin,where the Court held that the cited institutions and the Respondent are in the"higher educational sector"and that it"was satisfied that Section5 (1)(c) is applicable".
Summary of the Respondent’s Position
The Respondent denied the allegations made and held that the Complainant was not treated any differently or unfairly in comparison with other members of staff. Other permanent staff members were paid statutory redundancy when let go and they did not receive ex gratia redundancy terms. The Respondent contended that they are the Complainant’s proper comparators under Section 5(1) (a) and therefore her claim had no merit.
The Respondent disputed the Complainant’s reliance on theBushincaseor indeed the staff in NUl Maynooth stating that by virtue of Section 5 of the Act one must seek internal comparators in the employment in the first place and it is only when there are no such comparators that she is permitted to look for a comparator outside the employment.
The Respondent submitted that it could cite comparators who were directly employed by it and who meet the test of falling within Section 5(1) (a). It stated that none of its employees had received an ex gratia redundancy payment. In support of its position it cited a named employee, employed on a contract of indefinite duration, who was made redundant on 30thJune 2008 and received a statutory redundancy payment with no ex gratia redundancy payment. It contended that this example and several others over the years take precedence over any outside comparators that the Complainant might refer to.
Conclusions of the Court
The Law
The principal statutory provisions applicable in this case are to be found at sections 2, 5 and 6 of the Act.
The terms “permanent employee” is defined at Section 2 of the Act. It provides: -
- “permanent employee” means an employee who is not a fixed term employee.
Section 5 provides: -
- 5.—(1) For the purposes of this Part, an employee is a comparable permanent employee in relation to a fixed-term employee if—
(a) the permanent employee and the relevant fixed-term employee are employed by the same employer or associated employers and one of the conditions referred to in subsection (2) is satisfied in respect of those employees,
(b) in case paragraph (a) does not apply (including a case where the relevant fixed-term employee is the sole employee of the employer), the permanent employee is specified in a collective agreement, being an agreement that for the time being has effect in relation to the relevant fixed-term employee, to be a type of employee who is to be regarded for the purposes of this Part as a comparable permanent employee in relation to the relevant fixed-term employee, or
(c) in case neither paragraph (a) nor (b) applies, the employee is employed in the same industry or sector of employment as the relevant fixed-term employee and one of the conditions referred to in subsection (2) is satisfied in respect of those employees, and references in this Part to a comparable permanent employee in relation to a fixed-term employee shall be read accordingly.- (2) The following are the conditions mentioned in subsection (1)
(a) both of the employees concerned perform the same work under the same or similar conditions or each is interchangeable with the other in relation to the work,
(b) the work performed by one of the employees concerned is of the same or a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each, either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant, and
(c) the work performed by the relevant fixed-term employee is equal or greater in value to the work performed by the other employee concerned, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.
- (2) The following are the conditions mentioned in subsection (1)
- 6.—(1) Subject to subsections (2) and (5), a fixed-term employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable permanent employee.
(2) If treating a fixed-term employee, in respect of a particular condition of employment, in a less favourable manner than a comparable permanent employee can be justified on objective grounds then that employee may, notwithstanding subsection (1), be so treated.
- 6.—(1) Subject to subsections (2) and (5), a fixed-term employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable permanent employee.
The Court is satisfied that the named employee cited by the Respondent comes within the definition of a “permanent employee” as defined by the Act.
Section 2(1) of the Act provides that the term “conditions of employment” includes remuneration and matters related thereto. The Court has already decided that the question of whether or not exgratia redundancy pay constitutes remuneration for the purpose of Section 6 inSunday World Newspapers v Kinsella and Bradley[2006] 17 ELR 325. There, in reliance on the decision of the CJEU (formerly the ECJ) in Case C 262/88Barber v Guardian Royal Exchange Assurance[1990] ECR 1-1889, in which the CJEU held at paragraph 16 of its judgment:
- “a redundancy payment made by the employer, such as that which is at issue, cannot cease to constitute a form of pay on the sole ground that, rather than deriving from the contract of employment, it is a statutory or ex gratia payment”
The CJEU thereby found that an exgratia payment was remuneration within the meaning of the Act.
Section 5 of the Act provides that in choosing a comparator the Complainant must under Section 5(1) (a) first examine their own employer and any associated employer for a valid comparator. If unsuccessful then the Complainant must proceed under Section 5(1) (b) to examine any employees employed under a collective agreement which agreement also affects them. If unsuccessful under either of the above then under Section 5(1) (c) the Complainant may seek a comparator in the same industry or sector of employment with the proviso that the selected comparator must be engaged in the same or similar work or in work of equal or greater value.
The Court is satisfied that Section 5(1)(a) is applicable. . The Respondent has correctly identified at least one internal comparator who was treated in the same manner as the Complainant in that they were similarly made redundant and received no ex gratia redundancy payment. In addition the Respondent stated that there were many more internal comparators who were dealt with in the same manner as the Complainant. The Court notes that there is a collective agreement in place within the public sector regarding enhanced redundancy terms, however, the Court has found that as Section 5(1) (a) has relevance in this case there is no necessity to examine Sections 5 (1) (b) or (c). Accordingly the Court must find that the Complainant’s claim is not well-founded and reject her appeal.
Determination
The Court determines that the complaint herein is not well-founded and the Decision of the Rights Commissioner is affirmed.
Signed on behalf of the Labour Court
Caroline Jenkinson
8th April 2014______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.