INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
- AND -
AMALGAMATED TRANSPORT AND GENERAL WORKERS' UNION
Chairman: Mr Duffy
Employer Member: Mr McHenry
Worker Member: Mr O'Neill
1. Appeal against Rights Commissioner's Recommendation IR1250/00/GF.
2. Glanbia plc commenced operation following the merger of Avonmore Foods and Waterford Foods in 1997. The worker concerned commenced employment with Kilmeaden cheese in the early 1970's. He has been absent on sick leave since 1992, and is unlikely to return to work in the future. Kilmeaden cheese is part of the Glanbia Ingredients Division. As part of the merger the cheese plant in Kilmeaden was scaled down from a full-time production plant to a short season working plant. To reflect this change a Seasonalisation of Permanent Workforce Agreement was negotiated in 1998 with the ATGWU. Under the agreement the Company agreed to pay 70% redundancy to permanent employees for working a minimum of 22 weeks per year.
The dispute concerns the Union's claim that the terms of the 1998 agreement be applied to the worker concerned. The Union argues that the worker remains on the books of the Company and was included in a seniority list issued to the Union at the time the agreement was reached. The Company's position is that certain conditions applied to the package which the worker did not meet.
The matter was referred to a Rights Commissioner for investigation and recommendation. The Right Commissioner's findings and Recommendation are as follows:
"I am satisfied the terms of the severance agreement made in November 1997 apply to the claimant and I am recommending that the company allow him to avail of it."
Following the Rights Commissioner hearing the Company indicated that it was prepared to offer an ex-gratia payment of £20,000 in full and final settlement of the issue.
The Rights Commissioner's Recommendation was appealed by the Company to the Labour Court on the 18th of October, 2000 under Section 13(9) of the Industrial Relations Act, 1969. The Court heard the appeal in Waterford on the 13th of February, 2001.
3. 1. The issue was referred to a Rights Commissioner in order to avoid a dispute as the membership in Kilmeaden were incensed by the manner in which the worker was treated.
2. The Rights Commissioner was satisfied that the worker was covered under the terms of the severance agreement and, recommended that the Company should allow him avail of it.
3. The worker was on the Company's books at the time the agreement on seasonalisation was reached in September, 1998 and remains on the books and, accordingly, is covered by the terms of the agreement.
4. 1. Seasonalisation implies that the person is available to fulfil a normal range of duties for the Company for the season. The worker is not available for work and is unlikely to return to work for the 22 weeks minimum per season.
2. Redundancy (all or part of) assumes the worker's position is redundant. This is not the case. Should the worker make himself available for work, the Company undertakes to employ him.
3. The package agreed was a voluntary redundancy, and that applies to both sides. The Union wishes to force a redundancy on the Company.
4. In an effort to recognise the worker's personal circumstances the Company offered an early retirement package to the Union. This is an avenue which many employees in Glanbia who have suffered long term ill-health have availed of over the years.
5. The worker's case was parked in September, 1998 as it was acknowledged his circumstances were exceptional. The Company feels strongly that applying seasonal redundancy to an employee who has been absent on long term illness for 9 years and who will not be in a position to work the season in the future, is unjust and in contravention of the principles of normal redundancy. However, the Company is not unsympathetic to some form of goodwill ex-gratia payment and/or pension to the worker.
The Court has given careful consideration to the submissions of the parties in this appeal. Having regard to the circumstance of the claimant pertaining at the time the 1998 agreement was concluded, the Court accepts that it was not envisaged that he would benefit from a severance package provided for those accepting seasonalisation. For this reason the Court is satisfied that the Company's appeal should be upheld.
It is noted that the Company offered the claimant an ex-gratia early retirement package of £20,000 together with the pension to which he is now entitled. In the particular circumstance of this case the Court believes that the lump sum offered should be increased to one of £30,000 together with the pension already offered.
The appeal is allowed and the Rights Commissioner's Recommendation is amended accordingly.
Signed on behalf of the Labour Court
1st March, 2001______________________
Enquiries concerning this Decision should be addressed to Fran Brennan, Court Secretary.