FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : NATIONAL UNIVERSITY OF IRELAND, GALWAY (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Foley Employer Member: Ms Doyle Worker Member: Ms O'Donnell |
1. Appeal of Adjudication Officer Decision No. ADJ-00001196.
BACKGROUND:
2. This matter was referred to an Adjudication Officer for investigation and Recommendation. On the 25thOctober 2017 the Adjudication Officer issued the following Recommendation:-
- 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.
The employer appealed the Adjudication Officer’s Recommendation to the Labour Court on the 15 November 2016 in accordance with Section 13(9) of the Industrial Relations Act, 1969.
A Labour Court hearing took place on the 14 February 2017.
UNION’S ARGUMENTS:
3. 1. In making the employee redundant the University breached the Public Service Agreement (PSA) where no established exit provision or practice existed.
2. The employee’s employment history was not considered in the selection process and no selection procedure was carried out.
EMPLOYER’S ARGUMENTS:
4. 1. The University have always made employees on fixed term contracts redundant where a redundancy situation existed including those in the role of part-time teaching assistants.
2. The employee was paid an enhanced redundancy payment as per the Croke Park / Haddington Road agreements.
DECISION:
The Appellant in this case was employed by the Respondent on a succession of three fixed term contracts from 1stSeptember 2012 until the expiry of her third such contract on 31stAugust 2015.
The Appellant received enhanced redundancy payments upon the termination of her employment. The Appellant’s Trade Union had written to the Respondent in mid-September 2015 asserting that the enhanced terms provided for in the Public Service Agreement applied in the case of the Appellant. That assertion was accepted by the Respondent and those terms were paid.
It is common case that the redundancy of the Appellant took place for what was described in the Appellant’s submission as a ‘perfectly normal redundancy ground’. The Appellant however contends that there was no established practice in the employment of making personnel in the circumstances of the Appellant redundant. That being the case the Appellant contended that the Respondent was prohibited by the terms of the Public Service Agreements from making the Appellant redundant on the expiry of her fixed term contract.
The Respondent for its part contended that there is and has been such a practice in the employment which pre-dates the Public Service Agreement. In particular the Respondent asserted that up to 50 persons on average in the employment, including personnel whose fixed-term contracts came to an end, are made redundant every year. The Respondent submitted detail to the Court of redundancies, including of staff on fixed term contracts which included, according to the Respondent, part time teaching assistants similar to the Appellant, who have been made redundant as part of the normal operation and practice of the Respondent.
The Court notes the clarification provided on 17thFebruary 2012 by the Implementation Body for the Public Service Agreement 2010 – 2014 which set out that the Agreement was not intended to supercede established practices for making public servants redundant including on the expiry of employment contracts.
This Court, in Recommendation no. 20742, clarified that a party seeking to derogate from the general employment protection provisions of the Public Service Agreements must prove that there are existing exit provisions in place in the employment and that they apply in all respects to the worker concerned.
It is clear to the Court that in the Respondent’s employment it has been established practice in appropriate circumstances to make staff such as the Appellant, including those with similar length of service, redundant on the expiry of a fixed term contract. The Appellant accepts that the termination of her employment took place on the basis of a ‘perfectly normal redundancy ground’.
In all of the circumstances therefore the Court finds that the Respondent was not in breach of the Public Service Agreement in making the Appellant redundant. The appeal cannot therefore succeed and the decision of the Adjudication Officer is affirmed.
Signed on behalf of the Labour Court
Kevin Foley
LS______________________
23 February 2017Chairman
NOTE
Enquiries concerning this Decision should be addressed to Louise Shally, Court Secretary.