INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
RUIBEAR MOTAIR TEO
(REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
Chairman: Ms Jenkinson
Employer Member: Mr Pierce
Worker Member: Mr Rorke
1. Appeal of Rights Commissioner's Recommendation No. IR510/99/GF concerning payment of severance terms.
2. The Company is engaged in the manufacture of automotive component products for supply and distribution to the European and US markets. It is based in Bunbeg Co. Donegal.
In August, 1997 the Company announced its intention to transfer its operation and all 22 employees at Dungloe to its main plant at Bunbeg with effect from the 1st of September, 1997. Subsequently in December, 1997 the Union agreed redundancy terms in respect of 13 named, former Dungloe employees.
The worker concerned transferred to Bunbeg on the 1st of September, 1997. She was absent on sick leave from the 9th of September, 1997 to the 27th of October, 1997, when she commenced maternity leave.
In January, 1998 the Company announced a restructuring and viability plan which involved a reduction of 103 in the workforce. Following negotiations between the parties a redundancy package was agreed.
In February, 1998, coinciding with the end of her maternity leave the worker applied for voluntary redundancy. Her application was refused. The matter was referred to a Rights Commissioner for investigation and recommendation. The Rights Commissioner's findings and recommendation are as follows:-
"I have considered this case very carefully and I have decided
the claimant cannot sustain her case that she is being discriminated
Taking into account the circumstances of the claim I believe the
employer has not acted unreasonably and for that reason I must
decide the claim fails."
The Rights Commissioner's recommendation was appealed by the Union to the Labour Court on the 5th of October, 1999 under Section 13(9) of the Industrial Relations Act, 1969. The Labour Court heard the appeal in Donegal on the 16th of November, 1999.
3. 1. The worker was on maternity leave at the time the redundancy/severance package was agreed for the former Dungloe workers and was not in a position to claim redundancy.
2. The worker is entitled to have her employment rights preserved during her maternity leave in accordance with the 'Maternity Protection Act, 1994' and the 'EU Pregnancy Directive'.
3. The protection of her employment rights would cover the severance package offered to her colleagues during her absence on maternity leave or pregnancy related illness.
4. The worker has been treated less favourably than her colleagues due to her pregnancy and maternity. This constitutes discrimination and if allowed to stand would render the 'Maternity Protection Act' and the 'EU Pregnancy Directive' meaningless.
5. The Company's argument that concession of the claim could lead to knock-on claims from other workers who transferred to Bunbeg is undermined by its decision to grant the package to three former Dungloe workers who applied in similar circumstances to the worker in February, 1998. The Union is at a loss to understand the Company's rationale for refusing the worker's application.
4. 1. During the course of discussions, the Union alleged that the Company has discriminated against the worker due to her being on maternity leave. This allegation is refuted and the Company notes that this issue is being dealt with solely under the Industrial Relations Acts.
2. The Company has repeatedly emphasised that the settlement terms dated the 19th of December, 1997 were accepted by both parties in respect of the "13 workers concerned". At the conciliation conference held on the 18th of December, 1997 it was clear that the claim brought by the Union was in respect of the 13 named people who were unable to transfer to Bunbeg or who had decided to leave shortly after the transfer. The Company has no recollection of any other person's circumstances being discussed as a basis for their inclusion for the package either then or since.
3. A primary ground of appeal by the Union is the fact that in January, 1998 the Company agreed to allow 3 additional employees to benefit from the December, agreement. This decision was taken in good faith by the Company on the grounds that:-
- All three had been employees in the Dungloe Centre and had been off sick from their positions in Dungloe since December, 1996, February, 1997 and May, 1997 respectively.
- All three had indicated to the Company that they were unwilling to transfer to Bunbeg in September, 1997 prior to it being effective.
- The employment of one worker was terminated on the 4th of September, 1997 and in retrospect should have been named in the December agreement.
- Regarding the other two employees no further direct communication was made to them to conclude their employment status following their stated unwillingness to transfer. Given their continuing absence and having failed to actually transfer, their employment was terminated on the 12th of January, 1998 and the 19th of January, 1998 respectively.
5. The worker went on maternity leave from her position in the main Bunbeg plant and not from her position in Dungloe. When she transferred to Bunbeg no issues were raised by her with regard to the matter of her entitlement to redundancy or otherwise. It is reasonable to assume that the Union would have consulted widely with all of those involved, given that the discussions on the arrangements consequent upon the transfer had been ongoing during August, 1997.
6. During the course of the May, 1999 discussions at the Labour Relations Commission it was submitted in the worker's defence that she had agreed to the Bunbeg transfer in order to maintain her entitlement to maternity benefit. Equally both the Union and the worker accepted that she was well aware that her colleagues were pursuing the matter of redundancy but she felt disinclined to pursue the matter at the time, as it would have jeopardised her maternity benefit if she had contacted the Company. Effectively she acknowledges that she was fully aware of the discussions and had chosen not to pursue the matter at that time given her own assessment as to the implications for her maternity benefit. Such considerations are entirely beyond the remit of the Company and it cannot now be held responsible for any omission on the worker's part in respect of such matters.
7. The Company has consistently held the view that this case is less about any matter of alleged discrimination but more about the desire of the worker to leave the Company's employment with a financial settlement. It is clear in this context she has shown herself to be unwilling to do so without some financial recompense of her years of service to date with the Company. The Company cannot, given its obligations to all its employees, tolerate such an approach and cannot reasonably be expected to entertain the claim submitted.
8. Foremost in this regard is the potential for knock-on and consequential claims, which would almost certainly arise from others who transferred to Bunbeg in September, 1997 and who have remained with the Company. The concession of the current claim opens up the possibility that any such individual amongst that group should they feel so inclined might elect to pursue the matter of redundancy consequential upon the December, 1997 agreement. The Company cannot accept, as now argued by the Union, that the extension of terms to three other employees in January, 1998 in any way invalidates the argument. In all three cases they did not commit to the transfer or take up positions in Bunbeg. The real threat of knock-on claims from those who made the transfer remains.
Having considered the submissions of the parties the Court recommends, in the unique circumstances of this individual, that the Dungloe redundancy package should be paid to the claimant on termination of her employment. The Court is satisfied that such an entitlement arose due to the closure of the Dungloe plant, her subsequent absence on maternity leave and the unsuitability of the alternative employment which she undertook on a trial basis for a short period of time.
Signed on behalf of the Labour Court
8th December, 1999______________________
Enquiries concerning this Decision should be addressed to Fran Brennan, Court Secretary.