EMPLOYMENT APPEALS TRIBUNAL
CASE NO: RP50/2015
APPEAL OF:
Mary Roche - Appellant
against
Nazareth House - Respondent
under
REDUNDANCY PAYMENTS ACTS 1967 TO 2014
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. K. T. O'Mahony B.L.
Members: Mr D. Hegarty
Mr J. Flavin
heard this appeal at Cork on 26th January 2017
Representation:
Appellant: In Person
Respondent: Mr. Karl Elliott, IBEC, Gardner House, Bank Place, Charlotte Quay, Limerick
The decision of the Tribunal was as follows:-
Background:
The appellant was employed as a health care assistant in the respondent’s nursing home from 19 July 2001 until she redeployed to the HSE on 17 November 2014 where she works as a multi task attendant (MTA). The appellant had applied for the redeployment.
The appellant’s case was that she had been informed by the HSE that she had commenced a new employment on 17 November 2014 and that it would not recognise her previous service with the respondent. She was seeking a redundancy payment from the respondent.
Under the terms of the redeployment the appellant maintained her current position on the Department’s Consolidated Salary Scales at the appropriated point and the existing incremental credit date; she was not required to complete one year’s probationary service and she became a member of the HSE’s mandatory pension scheme. Similar conditions applied to the other employees of the respondent redeployed to the HSE at or around that time. An issue arose because the HSE would not recognise the prior service of the redeployed employees with the respondent.
In 2014 the respondent was in financial difficulties. A rationalisation and restructure plan involving pay, hours, rosters and condition for the respondent’s staff was negotiated between the respondent and SIPTU, the redeployed employees’ trade union at the Labour Relations Commission, in or around October 2014. It was envisaged that redundancy would be part of the plan. The LRC agreement/proposal stated inter alia:
12. Redeployment
Staff redeploying to the HSE must elect whether or not to accept offers of employment with the HSE on or before 2 November 2014. SIPTU will refer the issue of recognition of prior service processed as a separate issue through normal procedures.
13. Redundancy
Expressions of interest will be sought from those wishing to apply for a limited number of voluntary redundancies as statutory redundancy terms depending on staffing requirement. The (respondent) reserve the right to accept or reject applications. The accepted redundancies will be implemented on a phased basis.”
As events unfolded, with the expiry of temporary contracts the respondent reached its requisite level of staffing and a redundancy situation did not arise in the company. SIPTU did not refer the issue to a third party as it believed that the issue was not with the respondent but with the HSE (under the Haddington Road Agreement).
The appellant’s trade union engaged actively with the HSE on the issue as an industrial relations matter. SIPTU, who had been pursuing the issue at a local level moved to pursuing it at a corporate/national level on behalf of the redeployed employees, including the appellant, as a collective issue. On 28th April 2016 A/General Manager in the relevant HSE department advised the appellant that there may well be ongoing negotiations between her trade union and the HSE about recognition of her prior service but he knew nothing about it. Finally, in a letter dated 19th May 2016 sent by the Head of Corporate Employee Relations Services at the HSE to the SIPTU’s Division Head, stated:
“The provisions of the HRA/LRA do not provide for compulsory redundancies in the public health services and it is to be hoped that such a situation will not arise post the conclusion of the agreement. However, in the event of such a scenario arising, the HSE is committed to engaging with SIPTU in respect of the very particular circumstances that had arisen in respect of this cohort of staff and the requirement to take due cognisance of previous service with [the respondent] in such an unlikely scenario.”
The respondent’s position is that this is an agreement by the HSE to honour the appellant’s prior service with the respondent. It is further its position that the respondent did not dismiss the appellant and that if she had not availed of redeployment she would have remained an employee of the respondent. The appellant contended that had she remained in the respondent company her terms of employment would be less favourable than hitherto.
Determination
An issue arose as to recognition of the claimant’s prior service with respondent. Her trade union, SIPTU engaged with the HSE on the issue, both prior to and subsequent to the claimant’s redeployment to the HSE.
The evidence before the Tribunal is that the issue of the recognition of the claimant’s prior service with respondent had been resolved as an industrial relations issue between SIPTU and the HSE, as evidenced by the letter of 19th May 2016.
In any event, the Tribunal is satisfied that the claimant was not dismissed by the respondent which is a condition precedent to entitlement to a redundancy payment under the Redundancy Payments Acts 1967 to 2007. The claimant elected to be redeployed to the HSE. In considering the appeal the Tribunal noted that: the reduction in pay for those employed by the respondent company, pursuant to the LRC agreement of October 2014, only applied to new entrants; the LRC proposal provided at clause 11 that staff whose core working hours have been reduced as a result of the introduction of new rosters can apply for any additional shifts that become available; in her employment with the HSE the appellant is entitled to a pension; and, she is covered by the HSE’s sick leave scheme applicable to her grade.
Accordingly, the appeal under the Redundancy Payment Acts, 1967 to 2007 against the respondent fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)