ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001196

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 30/03/2016

Workplace Relations Commission Adjudication Officer: Michael Hayes

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and the abovementioned Act, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

The complainant submits that she was dismissed for redundancy on 31^st of August 2015. The respondent has agreed under the terms of the Public Service Agreement (PSA) that redundancy will not apply save “where existing exit provisions apply”. It would appear that the respondent’s position is that an entire category of employees – i.e. public servants employed on the basis of fixed-term contracts – come within an existing exit provision. Any assertion that a sectoral provision exists is unsupportable. Indeed there is no general applicable practice of dismissal for redundancy in the complainant’s position viz. those with substantial service where the requirement for the work has not diminished. The Labour Court (LCR20652) has found that workers in higher education employed on externally funded project work are not covered by the protections afforded by the PSA. The complainant’s post was exchequer funded and therefore is distinguished and it therefore follows that no special considerations apply to her. The fact of redundancy does not establish a practice and the complainant in this case can’t be treated less favourably than a comparable permanent employee save on stated objective grounds.

Respondent’s Submission and Presentation:

The respondent submits that it has and continues to make staff redundant (including those in the same grade as the complainant) in many different categories. Part-time and temporary staff has and continue to be made redundant and therefore there was an existing provision as a matter of fact. The practice predates the PSA. Staff on fixed-term contracts has received statutory entitlement in accordance with the provisions of the Redundancy Payments Act, 1967. The respondent accepts that it is obligated to establish that existing provisions are in place when it seeks to derogate from the provisions contained in clause 4.2 of the Haddington Road Agreement. The ones rests with the respondent to establish the same as a matter of fact.

Decision:

The submission of the respondent in respect of it’s obligation as it relates to derogation under clause 4.2 of the Haddington Road Agreement is accepted. It has established as a matter of fact that existing exit provisions were in place and do apply.

Accordingly I am not in a position to make a recommendation favourable to the complainant.

Dated:   25^th October 2016