LCR22517

FULL RECOMMENDATION

SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969

PARTIES :

IRISH BANK RESOLUTION CORPORATION (IN SPECIAL LIQUIDATION)
(REPRESENTED BY A & L GOODBODY, SOLICITORS)

- AND -

A WORKER

DIVISION :

SUBJECT:

1.Payment of Ex-gratia Redundancy Claim

BACKGROUND:

2.On the 02 October 2020 the Worker referred a claim to the Labour Court, in accordance with Section 20(1) of the Industrial Relations Act, 1969, and agreed to be bound by the Court’s recommendation. A Labour Court hearing took place in a virtual court room on the 02 December 2021.


RECOMMENDATION:

The matter before the Court relates to a claim for payment of enhanced redundancy terms arising from the operation of an enhanced voluntary redundancy scheme in Irish Bank Resolution Corporation (IBRC) from 2011 until the liquidation of that company in February 2013.

The background to this claim is that the Claimant was employed by Anglo Irish Bank from 1989 until July 2011 when that institution became part of IBRC. Her employment continued with IBRC until February 2013 when that entity was liquidated as a result of an Act of the Oireachtas.

At that point the Claimant’s employment, along with the employment of her colleagues, was terminated with immediate effect. The Claimant’s position was made redundant, and she received payment in respect of all of her statutory entitlements arising from that redundancy.

The Claimant was one of a number of employees subsequently engaged under a contract of employment by ‘IBRC in Special Liquidation’, an entity created by the 2013 Act, to assist with the wind down of IBRC and the processing of the loan book.

The Claimant’s employment with ‘IBRC in Special Liquidation’ terminated on the 28 February 2015. Arising from a mediation process involving the Special Liquidators and the Irish Bank Officials Association (IBOA) the claimant was eligible to receive a payment, subject to her signing a Deed of Release in full and final settlement of any claims in relation to her employment. The Deed of Release included an undertaking that Claimant would not seek enhanced redundancy payments arising from the termination of her employment, which was expressly stated as follows:

‘The employee agrees to waive any and all claims for redundancy over and above statutory terms that she may have against the Special Liquidators……….. For the avoidance of doubt, any such claims …….relates to and includes the Employee’s employment with the Group both prior to and following the making of the Special Liquidation Order…’.

The Claimant signed the Deed of Release on 16 March 2015.

The Claimant is seeking that the Court recommend payment of an enhanced redundancy payment over and above the value of the statutory redundancy payment she received upon the termination of her employment with IBRC in 2013. She bases her claim on a commitment given to IBRC employees in 2011 that enhanced redundancy terms would apply for the following five year-period.

The employer contends that the Claimant has no legal or contractual entitlement to avail of an enhanced redundancy scheme that has not operated since February 2013. Furthermore, the distribution of assets among creditors by a liquidator is prescribed in law and it is not open to it to make any payments where a debt has not been proven or no right or legal entitlement arises. In such circumstances the employer submits that any recommendation of the Labour Court in this matter can have no effect arising from the legal framework which applies to liquidations.

The Court has given careful consideration to the written and oral submissions of the parties.

The Court notes that the claim before it is one of a series of similar referrals submitted by former employees of ‘IBRC in Special Liquidation’ seeking the application of enhanced redundancy terms. As the Court has noted in those cases, it is not for this Court while exercising its jurisdiction under the Industrial Relations Acts to purport to make findings or decisions as regards the correct interpretation or operation of Company Law.

The Court must confine itself to consideration of the within trade dispute as a matter of industrial relations.

The Court acknowledges the significant upheaval and difficulties experienced by the claimant and her colleagues during what was undoubtedly a very challenging period. In the claimant’s case this culminated with her role being made redundant.

The Court acknowledges that the termination of the Claimant’s employment, through no fault of her own, gave rise to the payment of statutory redundancy terms which did not meet her expectations and, in the view of the Court, did not respect her years of service to Anglo Irish Bank and later IBRC.

The Court in this case is asked to recommend that enhanced redundancy terms over and above those that were applied to IBRC staff when that entity was liquidated in February 2013 should now be made to the Claimant.

In assessing this claim, the Court notes that the Claimant signed a Deed of Release on 16 March 2015 in which she made an undertaking that no claim of the nature before the Court would be made by the Claimant upon the Special Liquidators.

The Claimant confirmed to the Court that before signing the Deed she was given an opportunity to obtain independent legal advice in relation to the consequences and effects of signing the Deed. Furthermore, the Court must also take note that the Claimant delayed more than five years before referring her claim to the Court and also of the fact that the payment of statutory entitlements to IBRC staff in 2013 reflected the undisputed operation of the law in respect of a company which was placed in liquidation at that time.

Having regard to the history and all of the circumstances surrounding the matter, the Court is unable to recommend concession of the claim.

The Court so recommends.

NOTE

Enquiries concerning this Recommendation should be addressed to Ceola Cronin, Court Secretary.