FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : AURIVO CO-OPERATIVE SOCIETY LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - JOSEPH HERITY (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Haugh Employer Member: Ms Connolly Worker Member: Ms Tanham |
1. Appeal of Adjudication Officer Recommendation No. ADJ-00004274.
BACKGROUND:
2. This case concerns a former employee's complaint that he should have been entitled to some form of enhanced redundancy payment subject to the terms of a Labour Court Recommendation LCR 21141/2016. The respondent submits that no such entitlement exists. This matter was referred to an Adjudication Officer for investigation and Recommendation. On the 22nd March 2017 the Adjudication Officer issued the following Recommendation:-
- "I recommend that the respondent apply the improved redundancy package as detailed in the Labour Court recommendation LCR 21141/2016 to the complainant."
The Employer appealed the Adjudication Officer’s Recommendation to the Labour Court on the 7th April, 2017 in accordance with Section 13(9) of the Industrial Relations Act, 1969.
A Labour Court hearing took place on the 11th October, 2017.
DECISION:
Background to the Dispute
This matter comes before the Court by way of an appeal brought by Aurivo Co-Operative Society Limited (‘the Company’) under section 13(9) of the Industrial Relations Act 1969 against a Recommendation of an Adjudication Officer (ADJ-00004274, dated 22 March 2017). The Notice of Appeal was received by the Court on 7 April 2017. The Court heard the appeal in Donegal on 11 October 2017.
The Worker was employed as a part-time store manager at the Company’s retail outlet in Ballintrillick, Co. Sligo, until his position was made redundant on 22 January 2016. On 28 January 2016, the Worker signed a Settlement Agreement with the Company whereby he agreed to accept a severance payment (which comprised a statutory redundancy payment and an ex-gratia amount) and in return for which he gave the usual undertaking to waive any and all statutory and common law claims he might have against the Company.
The Settlement Agreement expressly provided that the Worker agreed that he “had been given the opportunity to take independent legal advice” prior to signing and that he had freely entered into the Agreement “without coercion of any kind whatsoever.” The Worker told the Court that he had not availed himself of either legal advice or advice from his Trade Union prior to executing the Agreement. The Worker had accrued some 27 years’ of service with the Company as of the date of his redundancy.
The timing of the Worker’s redundancy coincided with a referral of a dispute by SIPTU and the Company to the Labour Court in relation to redundancy terms. Having regard to this dispute, the Company’s then HR Manager added the following handwritten addendum to the Settlement Agreement referred to above, prior to its execution: “The above gross figure will be reviewed again following the outcome of the Labour Court hearing involving SIPTU. Any adjustment could result in part of the payment being subject to PAYE, USC etc.”
The Labour Court issued its Recommendation in respect of the dispute in relation to redundancy terms on 26 February 2016 (LCR21141). The Recommendation provided that the total redundancy amount payable thereunder should be capped at the equivalent of two years’ pay but that the workers whose redundancy payment would be capped should receive an additional €12,000.00 “in recognition of long service”. The Recommendation further provided for a wind-down bonus of €275.00 per year of service in addition to the standard redundancy terms recommended by the Court.
The case made out on behalf of the Worker in this appeal is that the hand-written addendum inserted by the HR Manager into his Settlement Agreement dated 28 February 2016 should be interpreted as entitling him to the additional payments (long-service payment of €12,000.00 and €275.00 per year of service wind-down bonus) provided for in LCR21141. The Worker also submitted that no other former Worker would be impacted should the Court uphold his interpretation of the addendum.
The Company submits that the claim is not well-founded because the Court in drafting LCR21141 specifically including the following wording: “The recommendations above are intended to be of general application in the case of all future redundancies and have no retrospective effect.” The Company also submits the part of the Recommendation that related to the wind-down bonus was specific to the Workers employed at its Achonry Butter Operation. Finally, the Company submits that a concession of the claim in respect of the Worker in this case could potentially expose it to further claims from up to 75 other Workers who had been made redundant over a period of three to four years prior to the date of LCR21141. The Company accepts that while it argued strongly for the inclusion of the non-retrospection provision in LCR21141, it did not advise the Court of the circumstances in which the Worker in the within dispute agreed to sign the Settlement Agreement at issue in this appeal.
Recommendation
The resolution of the matter before the Court in this appeal self-evidently turns on the interpretation that ought to be given to the entirety of the hand-written addendum made by the HR Manager to the Worker’s Settlement Agreement dated 28 January 2016 – in circumstances where the Worker requested that his redundancy payment be delayed pending the outcome of the dispute referred by SIPTU to the Court. That addendum, taken as whole, is far from clear and does not lend itself to one single, indisputable interpretation. The addendum forms part of a legally binding contractual settlement between the Worker and the Company. It follows, therefore, that the Court is obliged to apply the ‘contra proferentem’ rule and to construe the addendum against the Company and in favour of the Worker.
The Adjudication Officer’s Recommendation is, therefore, upheld and the appeal fails.
The Court so recommends.
Signed on behalf of the Labour Court
Alan Haugh
9th November, 2017.______________________
CCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ceola Cronin, Court Secretary.