LCR22298

1.Redundancy

BACKGROUND:

2.This dispute could not be resolved at local level and was the subject of a Conciliation Conference under the auspices of the Workplace Relations Commission. As agreement was not reached, the dispute was referred to the Labour Court on 24 September 2020 in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court Hearing took place on 22 October 2020, the following is the Recommendation of the Court:


UNION ARGUMENTS

1. The Union states that the Workers are protected by TUPE ever since they transferred in 2012 from AIB to a contractor and finally to this Employer in 2018 and therefore have a legal right to the redundancy terms negotiated between AIB and the Union.

2. The Union states the Workers should be compensated further as the redundancies they are facing are compulsory and not voluntary and therefore claim the Workers should be awarded four weeks pay per year of service plus statutory entitlement.

3. The Union urges the Court to find in favour of their Members claim.


EMPLOYER ARGUMENTS

1. The Employer states that the voluntary severance package offered by the previous employer, AIB, in late May 2012 was withdrawn in June 2012 and did not transfer as part of any agreement to the subsequent employer under TUPE regulations nor subsequently to this Employer in 2018.

2. The Employer states that the employees in question will be in a better position than any of the Employer's staff in this redundancy situation.

3. The Employer requests the Court to support its position and reject the Union's request for further enhanced redundancy terms in excess of statutory entitlement plus two weeks pay per year of service.






RECOMMENDATION:

The Court has given very careful consideration to the written and oral submissions of the parties. The matter before the Court has been the subject of direct engagement, engagement at the Workplace Relations Commission and unofficial industrial action. Notwithstanding this background to the matter, the parties have no common understanding as regards the number of individuals encompassed by the claim of the Trade Union. The Trade Union asserts that 12 of its members are the subject of the dispute while the employer contends that no more than 7 persons are involved in the matter.

Notwithstanding the level of disputation between the parties as regards matters of fact, the Court is satisfied that, in the view of the parties, the workers involved in this dispute fall into three categories as follows:

• 
  • Workers who formerly worked directly for the client company on the site and who moved to the employment of a contractor in 2012. In accordance with a later transfer of that contract finalised on 30^thMarch 2018, the staff transferred to the employer involved in this dispute.

  • Workers who were never employed by the client company on the site.

  • Workers who were never employed by the client company on the site and who, at the date of redundancy, had less than two years employment with the employer.

The employer contends that no entitlement arises for the members of the Trade Union from the fact that a collective agreement which applied only to a specific period and a specific redundancy programme of the client company was concluded in 2012.

There is no contention that the matter before the Court relates to a dispute as to a matter of right under Transfer of Undertaking regulations. The matter before the Court is a trade dispute.

The Court notes that the client company, who was previously the employer of some of the individuals involved in the dispute before the Court, has, according to the Trade Union, concluded a fresh collective agreement with the Trade Unions representing its employees in 2020. That collective agreement makes provision for payment of redundancy terms of three weeks’ pay per year of service to be paid to volunteers for redundancy. A redundancy programme on those terms is, according to the Trade Union, currently under way in the client company.

Having regard to all of the circumstances and taking careful note of the specific circumstances of this trade dispute, the Court recommends as follows:

• 
  • That, having regard to (a) the fact that former colleagues of the Claimants who previously worked for the client company are currently being offered terms of three weeks pay per year of service plus statutory entitlement as part of a voluntary redundancy programme, and (b) that the client company (which is the former employer of the staff in this category), has undertaken to make at least a contribution to the cost of the redundancy payments to be made to the Claimants; the Court recommends that, in those particular and unusual circumstances, terms of three weeks’ pay per years of service plus statutory entitlement should be paid to this category of staff. The Court’s recommendation in this respect should not be regarded as a precedent in any other circumstances.

  • That, having regard to the fact that this Court has, on a number of occasions, recommended that terms of two weeks’ pay per year of service plus statutory entitlement should be paid to employees being made redundant by this employer, including in a case of compulsory redundancy, terms of two weeks’ pay per year of service plus statutory entitlement should be paid to staff with over two years’ service who were never previously employees of the client company.

  • The parties before the Court identified a dispute between them as regards the terms to apply to staff with less than two years’ service at the date of their redundancy. The background to this matter is unclear to the Court.

  • 
    The employer has offered redundancy terms of two weeks’ pay per year of service plus statutory entitlement to all staff. Previously, as referred to above, the Court has recommended that those terms should apply to staff made redundant by this employer in other locations. Neither the terms offered by the company in this dispute nor those set out in any previous Recommendation of the Court involving this company as quoted before the Court, has made provision for the exclusion of any category of staff from payment of the terms provided for. It is a fact that a person with less than two years’ service has no entitlement under the Redundancy Payments Acts to statutory redundancy payments.

    Therefore, the Court recommends that the parties accept that the terms offered by the Company to workers involved in this dispute, while they confer no benefit arising from a statutory entitlement to a Redundancy payment, do provide for an ex-gratia payment of two weeks’ pay per year of service to employees with less than two years’ service and that this offer should be accepted.

The Court so recommends.

	Signed on behalf of the Labour Court
	Kevin Foley
TH	______________________
23 November 2020	Chairman