EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO:
John Burke,– appellant. RP302/2013
MN208/2013
Against
Health Service Executive
T/A H.S.E. South,– respondent
Under
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMNET ACTS, 1973 TO 2005.
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. S. McNally.
Members: Mr. P. Casey.
Mr. O. Wills
Heard this appeal at Cork on the 15 May 2014, the 28 July 2014 and the 29 July 2014.
Representation:
Appellant(s): Mr. Seamus Murphy, Psychiatric Nurses Association,
Station House, The Waterways, Sallins, Co. Kildare.
Respondent(s): Ms. Tess O’Donovan, Employee Relations Department, HSE South,
Aras Slainte, Wilton, Cork.
And
Mr. Diarmuid Cunningham, Comyn Kelleher Tobin Solicitors, 29 South
Mall, Cork.
The decision of the Tribunal was as follows:
Background
The parties agreed that the appellant who had worked in the health services mental health division for many years retired in March 2008. He recommenced work in the same area he had retired from in the HSE as a temporary part time as needs arise health care worker on the 14 March 2008. This option of working as needs arise was offered to the appellant
on his retirement with a restriction on the number of hours he could work as he was receiving a pension.
In August 2012 the practice of re-hiring retired employees ceased for all grades and the HSE management were instructed to manage the exit of those employees who were re-hired. Following on from that instruction the appellant’s employment was terminated.
Over the years care for the mentally ill had moved from residential care to a more community based service and the HSE submitted that the same level of care and same level of staff were required to deliver this service. The appellant submitted that the numbers employed in the area of mental health had been reduced and opened a document taken from the respondent’s own website which indicated a drop in staff numbers in the North Cork region.
The appellant was notified of his termination of employment on the 15August 2012 and remained on the payroll until the 27 December 2012. He was not rostered any hours during that period. This was agreed by the parties.
The respondent also submitted that the maximum annual leave over an eighteen month period is thirteen days and over twelve months nine days. In continuing to pay the appellant up to 27 December 2012 the respondent submitted that he was vastly in excess of the two weeks minimum notice. The appellant is seeking ten weeks minimum notice.
Respondent’s Case
The area director of nursing (NK) in his evidence explained that employees on the relief panel such as the appellant provided cover to facilitate annual leave or sick absences at short notice. The appellant’s hours were consistent as there was a need to provide cover. The appellant worked broadly in the continuing care unit of St. Stephens. Since that time the campus has reduced significantly with some units closed. Community care is not as labour intensive as the residential type care which was provided at the campus. The witness accepted that there was a reduction in whole time equivalent (WTE) staff since September 2009 and explained that mental health services were now delivered in a more structured and quality manner. The reduction in numbers was also due to the numbers retiring.
The area administrator in North Cork mental health services (DMcC) explained that WTE numbers did not refer to number of persons employed. The witness provided a breakdown of WTE’s (psychiatric nurses) from January 2008 to June 2014. The figures took into account those retiring and any appointments in the period. The witness confirmed that the information he provided was prepared by the payroll department.
The employee relations manager for the Cork and Kerry region (MD) outlined her role to the Tribunal. As part of the employment control framework which was government policy the instruction was to reduce numbers as part of a measure to cut costs. The appellant’s employment was terminated as a result of the instruction memo dated the 29
June 2012 to monitor and manage the exit of re-hired retirees. The instruction as she and the organisation interpreted was that the practice of re-hiring was to end and anyone re-hired was to exit employment. An email dated the 2 August 2012 was opened to the Tribunal. The email did not address the period of notice which would apply to re-hired retirees with more than two years service. The witness was not directly involved in notifying the appellant of the termination of his employment. This was carried out by the local service manager.
Appellant’s Case
The appellant’s evidence was that at the time of his retirement his then director of nursing suggested that he apply to the relief panel which he did and returned to work some three weeks after retiring. Initially he saw this as a temporary option but he remained in employment for four and a half years. On the 16 August 2012 he received a phone call from the assistant director of nursing informing him that his employment would end that day. He had two hundred and seven days annual leave entitlement at the time which WM confirmed for him. This had built up as he was never rostered for annual leave over the course of the employment. He was initially informed by the salaries department that his leave entitlements would be paid in a lump sum however three days later he learned that the respondent would continue to pay him for seventeen weeks up to the 27 December 2012. He was never informed of his notice entitlements at any stage during the process.
In a week when the appellant was not rostered the total hours annual leave was used to bring up the hours which explained why the appellant’s pay was consistent each fortnight. The appellant explained that he got annual leave which was not rostered but rather by default. He never read the employee handbook and had little knowledge of his entitlements and of the organisation’s grievance procedures.
Determination
The Tribunal has considered the evidence submitted by both parties and in relation to the claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 find that the appellant was paid in lieu of his statutory minimum notice of two weeks and is dismissing the claim.
The Tribunal considered Section 7(2) (b) and (c) of the Redundancy Payments Act, 1967 as amended which states as follows:-
“…….. an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to; ….
(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish or
(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed ( or had been doing before his dismissal) to be done by other employees or otherwise, ….”
The Tribunal accepts that the respondent was in the process of restructuring and changing how it delivered services in the mental health area. While it is noted that the respondents in their evidence, emphasised that the level of service did not change, the Tribunal is satisfied that a category of employees (being re-hired retirees providing cover to facilitate annual leave or sick absences of other employees at short notice) were terminated pursuant to government policy which culminated in the instruction to terminate the employment of re-hired retirees as part of a measure to cut costs. The tribunal is therefore satisfied that the termination of the appellant falls within the above two categories as set out in Section 7 (2) of the Act as the appellant was an employee in this category.
The Tribunal awards the appellant a lump sum payment under the Redundancy Payments Acts, 1967 to 2007 based on the following information:
Date of Birth: n/a
Date of Commencement: 23 March 2008.
Date of Termination: 27 December 2012.
Weekly Gross Pay: €291.50.
This award is made subject to the appellant having been in insurable employment under the Social Welfare Acts during the relevant period.
Sealed with the Seal of the
Employment Appeals Tribunal
This _________________________
(Signed)______________________
(Chairman)