Complainant

Respondent

Anonymised Parties

A former CE Supervisor

A CE Scheme

Representatives

Aine Feeney SIPTU Workers Rights Centre

Niall O'Gorman deLoughry & O'Gorman

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-xxxx

23/03/2020

The dispute concerns the Complainant’s claim for enhanced redundancy. The Complainant was employed in a community employment scheme/company limited by guarantee, which is now in liquidation.

The Complainant commenced employment as a Community Employment (CE) Supervisor on 19/10/1998. The Complainant was made redundant on the 4th October 2019 and received his statutory redundancy. However, the Complainant submits that he is entitled to an enhanced redundancy in accordance with the provisions of a collective agreement for CE supervisors outlined in a Memorandum dated 23rd May 2005 which amended a previous 2002 agreement. Under the terms of the enhanced scheme the Complainant’s redundancy would have been based on an additional 3.35 weeks of service per year. To-date the Complainant states that the funder of the CE scheme, i.e. the Department of Employment Affairs and Social Protection (DEASP) has declined to honour the Memorandum on the basis that the Respondent sponsor of the scheme chose to instigate the redundancy and that the Complainant is not its employee. According to the Complainant the Respondent has stated it was not a party to the enhanced redundancy agreement and that it does not have the means to fund any enhanced payment.

The Complainant outlined his unsuccessful efforts and communications with the DEASP and the Respondent to seek the enhanced redundancy including his request for an appeal and his unsuccessful complaint to the Ombudsman. It is the position of the Complainant that the actions of the DEASP are contrary “to the spirit of the agreement”. In that regard, the Complainant maintained that “the Department was fully aware that the Respondent did not, could not and would not have any funds to pay any Statutory let alone enhanced redundancy. Hence, the necessity for the agreement in the first instance”. The Complainant maintained that he received €25,776.00 in respect of his statutory redundancy but that he meets the criteria to attract the ex-gratia enhanced redundancy which would amount to an additional €34,479.00 as per the terms of the collective agreement. The Complainant cited various case law in support of his position.

 The Respondent was represented by the Liquidator of the Community Employment Scheme which is a company limited by guarantee. The Liquidator advised that he was appointed on the 18th August, 2020. The Liquidator stated there are no funds available in the liquidation and therefore there is no capacity to pay any enhanced redundancy. The Liquidator also advised that “Enhanced redundancy was negotiated between SIPTU and the Department of Employment Affairs and Social Protection (‘DEASP’). The CE Scheme sponsors had no part in, andwere not party to, that negotiation. Therefore, it is the DEASP that should be before the WRC.”

At the adjudication hearing, the Liquidator stated that the company had come to the end of its natural life but that notwithstanding, he would assist in any way he could in relation to securing an enhanced redundancy for the Complainant.

 I have considered the submissions and documentation in relation to this matter. In particular I note:

·       That the Respondent was a voluntary organisation funded by the DEASP and in these circumstances, it submitted that it did not have the funds to pay the Complainant an enhanced redundancy;

·       The position of the DEASP that it was not the Complainant’s employer (upheld by the Labour Court-Recommendation No LCR22363), that the responsibility for payment of redundancy falls on the employer/Respondent,  and that the: “Department (and previously FÁS) have consistently maintained that the only circumstances in which it will fund sponsor organisations for enhanced redundancy packages to CE supervisors is where the redundancy arises because of the actions of the Department due to restructuring of the CE programme…….or the reduction in the overall numbers on CE…. [but that] “Funding towards an enhanced redundancy package does not apply where the employer is the instigator of the redundancy….”;

·       The Complainant’s Contract of Employment signed on 16/8/17 which in respect of redundancy provides that “The Supervisors shall be paid redundancy payment in accordance with the agreed enhanced severance package for Supervisors as per FÁS now DSP/Union agreement approved”;

·       The terms of the letter of 7/6/2002 from the Department of Enterprise, Trade and Employment to the National Secretary of the trade union formerly known as IMPACT, in relation to redundancy payments to Community Employment Supervisors, the FÁS letter to IMPACT of the 3rd February 2005 and the document titled “MEMORANDUM” dated 23rd May 2005 which, inter alia, provides that calculation of redundancy payment to CE Supervisors comprise the statutory amount “Plus Enhanced Redundancy Funding” @3.35 weeks/year of service.

Having considered all the submissions and documentation in this case, I am of the view that the Complainant had a legitimate expectation he would have received the enhanced redundancy payment. In that regard I consider that taken together - the original agreement set out in the letter of the 7th June 2002, the subsequent letter to IMPACT of the 3rd February 2005 and the MEMORANDUM of the 23rd May 2005 – have the overall effect of providing for the payment of enhanced redundancy to eligible CE Supervisors – including the Complainant. I am of the view that to interpret otherwise - in circumstances where the CE scheme is wholly funded by the DEASP – renders the agreement incapable of practical implementation in situations such as applied to the Complainant.  Consequently, I make the below recommendation.

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute and accordingly I recommend:

·       That the Complainant be paid an enhanced redundancy payment in accordance with the terms of the collective agreement as reflected in the letters of the 7th June 2002, 3rd February 2005 and the MEMORANDUM of the 23rd May 2005;

·       That the Respondent should use its best endeavours to engage with the DEASP to resolve this dispute on the basis of the terms of the collective agreement and in addition,  that both parties make a joint constructive approach to the DEASP to seek resolution.

Enhanced Redundancy; Community Employment Scheme