ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969
Investigation Recommendation Reference: IR - SC - 00000023
Parties:
| Worker | Employer |
Anonymised Parties | A Supervisor | A Manufacturing Company |
Representatives | Robert Kelly Unite the Union | Robin McKenna IBEC |
Dispute:
Act | Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | IR - SC - 00000023 | 31/03/2022 |
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Date of Hearing: 31/10/2023
Procedure:
In accordance with Section 13 of the Industrial Relations Act 1969 (as amended)following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any information relevant to the dispute.
Background:
The Worker is in dispute with the Employer relating to a proposed voluntary severance package which he contends was being offered to him and then withdrawn.
Summary of Workers Case:
The Worker in this case has many years exemplary service with the Employer. He had a career which developed from packaging operator to warehouse supply, trainer, line leader and supervisor. He had some back problems which resulted in having to take time off in 2006 and again in 2012. In 2013 a review of workload resulted in the Worker being promoted into a Supervisory role. In 2017 the duties were significantly altered and involved more of a compliance role, with duties shifting to completing vendor complaints, deviation reports and creating corrective and preventative actions, including Safety level 1 audits. In 2018, he expressed frustration about the work and stated that if a redundancy situation became available again, he would take it. The following week he was approached by Mr M and told if he was still interested there was a process where this could happen. Some one-to-one meetings were held with the Worker on a strictly confidential basis and he was told not to include or inform the union. He had a grievance process which he was encouraged to suspend and he did so. This was the subject of another complaint to WRC where he was awarded €2,500 for the company stalling the grievance process. In June 2018 at the final meeting which was a one-to-one with Mr M the Worker was informed that there was another supervisor involved in the same process and due to seniority he would exit first. The other Supervisor left and the Worker expected to sign a non-disclosure agreement shortly after the summer shutdown. However, he was called to a meeting where he was advised the package was withdrawn.
It is submitted that the original agreement between the parties constituted a contract legally enforceable and there was mutual assent expressed by a valid offer and acceptance.
It is contended that the Employer in this case was aware of the Worker’s mental health issues and failed to take this into account when entering into agreeing and then withdrawing the severance package. His treatment by management has badly affected his mental health, resulting in him having to attend counselling and be on prescribed medication for prolonged periods of time. This has had an impact on his ability to work the full range of his shift rotations and has had financial implications with a reduction in shift allowance. His doctor has assessed him and stated he is only fit for 2 shift rotations. In September 2022 the Worker was told his role has a requirement for a 3 shift rotation and the company can no longer sustain his position on a 2 shift rotation. So it seems the Company are now saying that the Worker can no longer continue as a Shift Supervisor on a 2 shift rotation that he has been doing for 2 years. One could conclude that his current position is now being made redundant. It is submitted that a verbal contract was indeed entered into between the Company and the Worker in June 2018 and that the Company should honour that contract and follow through with the VS package and that financial compensation should be awarded for the losses incurred and significant costs for counselling and doctor’s visits and medication.
Summary of Employer’s Case:
The Worker is attempting to unilaterally enforce a severance package following local, confidential conversations where no agreement was reached, drafted or signed by either party.
He was employed by the Company since 19 August 1996. In Early 2018 he approached his direct supervisor Mr D to see if there was any possibility of a redundancy package being available to him. As a result of this request, several discussions took place between the Worker and Mr M the Department Manager. These discussions were on an informal confidential basis and very much exploratory in nature. No numbers were discussed and Mr M had no authority to give effect to an employee exiting with such a package. Any such possibility must be authorised at the most senior level. No authorisation was forthcoming as it represented the exit of a person as distinct from the redundancy of a position. The Worker had previously raised a number of separate grievances. These were reactivated and included an additional grievance regarding his redundancy. In an outcome report dated 7 January 2020 it states:
“While discussions did take place between [Mr M] and [the Worker] there was never a formal contract or a guaranteed agreement in that [the Worker’s] exit from the business would occur.”
The Company argues that this matter has already been addressed in another complaint taken by the Worker. In his findings and conclusions the Adjudication Officer found no evidence to suggest anything other than ‘informal and purely exploratory’ discussions had taken place. There simply was no agreement. The Worker argues that there was a contract. Two fundamental elements of a contract are offer and acceptance. There was no formal offer and as such no formal acceptance could have been made by the employee. The complaint should fail.
Conclusions:
In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties. I note this issue was the subject of another Industrial Relations Act recommendation issued in September 2022 in which the Adjudication Officer found no evidence of unreasonable behaviour on the part of the Employer. Voluntary severance has to be voluntary on both sides. Just as the Worker cannot be compelled to accept voluntary severance, the Employer also cannot be forced to implement a voluntary severance package on the Worker. However, I have some sympathy for the Worker in this case which dispute has been going on now for over 5 years. I note that the Worker is due to retire in around 2 years. During the hearing, mention was made of the possibility of restructuring in the near future. This might re-open the way for the Worker to exit the company in advance of his retirement at the standard age. |
Recommendation:
Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.
I recommend in all the circumstances, that the Employer should engage with the Worker and his Union Representative with a view to re-activating the severance process.
Dated: 18th December 2023.
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Key Words:
Voluntary exit package, no agreement, recommend reactivate discussions. |