FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 20(2), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : DALKIA LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - TECHNICAL, ENGINEERING AND ELECTRICAL UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. (1) Redundancy terms (2) Length of service for four Workers.
BACKGROUND:
2. The dispute concerns redundancy terms in respect of approximately twelve Workers employed on two Diageo sites in Kilkenny and Waterford and arises as a result of the closure of these two sites. The Union is seeking an enhanced redundancy package for the Workers and the recognition of previous service of four Workers who transferred over from Diageo to Dalkia. The Company disputes both claims stating that they are under no obligation to take previous service with another employer into account nor match the redundancy package of their client Company.
The dispute was referred to the Labour Court on the 8th November, 2013 in accordance with Section 26(1)(a)(b) of the Industrial Relations Act 1990. After a Labour Court hearing on 11th December, 2013 which was adjourned the dispute was re-entered under Section 20(2) of the Industrial Relations Act, 1969 and both parties agreed to be bound by the Recommendation. Labour Court hearing took place on the9thJanuary 2014.
UNION'S ARGUMENTS:
3. 1.Two the four of the Workers have documentary evidence to prove that they were covered by the Transfer of Undertakings, while the other two have no such proof nevertheless they are still covered as they seamlessly moved across to Dalkia after their contracts with Diageo expired.
2. The Workers being made redundant have worked alongside and on joint rosters with Diageo Workers as part of the Maintenance Teams in both plants. As they were part of a fully integrated workforce it is reasonable for them to be awarded a similar redundancy package.
COMPANY'S ARGUMENTS:
4. 1. The Company does not accept that three of the four Workers in question have an automatic right to have their service with a previous employer recognised for redundancy purposes. Continuity of service is no longer in dispute in respect of the fourth Worker.
2. The redundancy package is well established and is consistently applied regardless of the contract that the employee works on. The Company believes that it's redundancy package is appropriate for the size of the Company, the nature of it's work and the type of industry it operates in.
3. The Union has cited the Diageo redundancy package in support of their position, there is no comparison between the two companies in terms of size or profitability. This is an unrealistic and unreasonable position to take.
RECOMMENDATION:
The dispute before the Court is under Section 20(2) of the Industrial Relations Act, 1969, where the parties have agreed to accept the outcome of the Court’s investigation, in advance. The Company is an energy and utilities service company. The dispute between the parties arose as a consequence of the closure of the Diageo sites in Waterford and Kilkenny where the Company has provided its services.
The dispute contained two elements:-
(i)Claim for an enhanced redundancy package for those employees being made redundant.
Having considered the position of both sides and in light of the particular circumstances where these employees were working alongside Diageo Workers, the Court recommends that the Company should pay two weeks’ pay per year of service plus the statutory redundancy payment to the twelve employees made redundant on 31stDecember 2013. The Court notes that the Company’s standard package of statutory redundancy with no ceiling on earnings has already been paid, therefore the remainder of the package as recommended in this Recommendation should be paid within four weeks from the date of this Recommendation.
(ii)Claim for recognition of service in respect of four employees.
At the outset of the hearing the Company informed the Court of new information it had received in respect of one of the Claimants,Mr. N. McD,therefore the issue of continuity of service for this Claimant was no longer in dispute.
Having examined the submissions of both sides, having considered the oral submissions made and taken account of all documentation furnished, the Court finds as follows:-
Mr. D. B & Mr. J. R– the circumstances of both Claimants were similar. The Court was not supplied with definitive evidence to substantiate either parties’ position, therefore on the balance of probabilities the Court is satisfied having considered all the circumstance which prevailed in this case when Dalkia Limited were awarded the contract with Diageo to provide maintenance/technical services they took over the continuity of employment of the two Claimants in question. The Claimants had not been paid redundancy by Diageo and while Dalkia Limited maintain that it was not a transfer of undertakings the Court is satisfied that it took over the work and the workers who were previously engaged on the duties. Therefore the Court recommends that the Company should recognise the service of the Claimants in question while they were employed by Diageo for the purposes of calculating their redundancy entitlements.
Mr R. B. – having examined the information provided the Court is satisfied that this Claimant’s employment with Dalkia Limited commenced on 8thJanuary 2010 and his redundancy entitlements should be calculated from that date.
The Court so Decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
3rd February, 2014______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to John Foley, Court Secretary.