FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : THE MAERSK COMPANY (IRELAND) LIMITED (REPRESENTED BY JADEL NAIDOO B.L. INSTRUCTED BY PATRICK J GEANEY SOLICITORS) - AND - A WORKER (REPRESENTED BY TIERNAN LOWEY B.L. INSTRUCTED BY BUSINESS & COMMERCIAL SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Tanham |
1. Appeal of Rights Commissioners Recommendation No: r-132637-ir-13/EH
BACKGROUND:
2. This is an appeal by the worker of Rights Commissioner's Recommendation No: r132637-ir-13/EH. The issue concerns a claim for enhanced redundancy terms. The worker is seeking six weeks pay per year of service inclusive of statutory entitlements with no cap. Management contends that the worker is entitled to four weeks pay per year of service capped at 12 years service in line with its policies and procedures. The matter was referred to a Rights Commissioner for investigation. A Recommendation issued on the 19th September 2013 and did not find in favour of the workers claim. On the 29th October 2013 the worker appealed the Rights Commissioner's Recommendation in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 12th December 2013.
WORKER'S ARGUMENTS:
3 1 The worker is justified in seeking the same terms that have previously applied in the Company and in comparable employments
within the sector.
2 The worker had long service with the Company and incurred significant losses in receiving his entitlements in line with the new terms on offer when he was made redundant in November 2012.
COMPANY'S ARGUMENTS:
4 1The Company is compliant with the terms of its redundancy policy and has fulfilled its statutory obligations in respect of the workers entitlements.
2 The payment of "ex gratia" payments is discretionary and the Company has exercised its discretion in applying the redundancy terms that were paid to the worker.
DECISION:
This is an appeal by an employee against a Rights Commissioner’s Recommendation which found against his claim for payment of the Company’s enhanced redundancy terms which applied up until April 2012. The Claimant was employed from 1stFebruary 1989 until 12thNovember 2012 when he was made redundant. The Company paid him an enhanced redundancy payment which was introduced in April 2012 and which was based on paying one month’s pay per year of service including statutory redundancy payment capped at 12 years’ service. The Claimant sought six weeks’ pay per year of service inclusive of the statutory redundancy payment with no cap in accordance with the Company’s previous enhanced redundancy terms.
Counsel on behalf of the Claimant submitted that he was entitled to the latter terms on the basis of custom and practice within the Company whereby eleven of its employees had been made redundant between 2008 and 2010 and paid the higher terms. Counsel on behalf of the Company submitted that the capped terms had been in place since April 2006, although it had paid out the previous higher terms, but it was not until April 2012 that it formally introduced the capped terms which had applied since then.
The Court notes that the new terms introduced in April 2006 were introduced without agreement. Furthermore, the Court notes that in the case of the Claimant due to his very extensive service with the Company the new terms had a significantly disproportionate effect on him when he was made redundant in November 2012. In all the circumstances of this case the Court recommends that he should be paid an ex gratia redundancy payment of six weeks’ pay per year of service inclusive of the statutory redundancy payment with no cap.
Therefore, the Court overturns the Rights Commissioner’s Recommendation and upholds the appeal.
The Court so Decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
7th January 2014______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.