INDUSTRIAL RELATIONS ACTS, 1946 TO 2001
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
SOUTH WESTERN HEALTH BOARD
- AND -
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Ms Jenkinson
Employer Member: Mr Pierce
Worker Member: Ms Ni Mhurchu
1. Appeal against Rights Commissioner's Recommendation IR6504/02/GF.
2. The worker commenced employment on the 15th June, 1994 as a Community Employment Supervisor in the South Western Health Board in Cherry Orchard Hospital. His employment was terminated on the 7th September 2001, due to the closure of the scheme. The Union is seeking an ex-gratia payment of four weeks pay per year of service plus statutory entitlements.
Management rejected the Union's claim. It states there is no precedent for payments of redundancy in the South Western Area Health Board and as a result no funding or mechanism for payment is available. The Department of Enterprise Trade and Employment indicated that funds were being made available to meet such payments. However, these payments only applied to community and voluntary organisations and not to Health Boards.
The dispute was the subject of a Rights Commissioner's hearing which took place on the 31st May 2002. The following is the Rights Commissioner's Recommendation:-
"The claimant is entitled to the protection of a number of Acts covered by the complaints; these include appropriate notice and holiday pay. I recommend that SWHB pay him entitlements in accordance with these Acts. He is also entitled to his Redundancy payments but I do not agree with the claim for 4 weeks pay for each year of service - plus the act. He was offered good employment when the project was terminated. It was not acceptable. Therefore, I recommend he be paid 2 weeks per year of service plus the act in full and final settlement of this claim."
The Union appealed the Recommendation on the 9th August 2002, in accordance with Section 13(9) of the Industrial Relations Act, 1969. The Court investigated the dispute on the 5th November 2002.
3. 1. The worker's employment was summarily terminated by the closure of the scheme by both FÁS and the Sponsor without any redundancy/severance package.
2. No consideration was given by management to the worker's long and loyal service to the organisation.
3. The ex-gratia element of the Rights Commissioners Recommendation would have the effect of placing the worker in a less advantageous position than other
CE Supervisors who are made redundant.
4. The worker was offered alternative employment as a general operative but this offer was not acceptable because (a) there was a substantial reduction in earnings
(b) he would no longer be able to utilise his academic qualifications, and
(c) there would be a loss of status.
4. 1. The worker was offered alternative employment even though there was no onus on management to do so. The worker rejected the offer.
2. The scheme was terminated by FÁS and not by the supporting body.
3. FÁS indicated that there was no mechanism for enhancing payments over and above statutory for Supervisors. It also states that upon termination of a
scheme the Supervisor is informed of other posts on the FÁS database and is free to pursue these posts.
4. The claimant has secured alternative employment in another location, which is also state funded.
This is an appeal by the Union against the ex-gratia element of Right's Commissioners Recommendation No:IR6504/02/GF.
Having considered the oral and written submissions of both parties, the Court recommends that the ex-gratia element of the Rights Commissioners recommendation should be amended to read four weeks pay per year of service in addition to statutory redundancy entitlements.
The Court makes this recommendation bearing in mind the agreed Department of Enterprise, Trade and Employment guidelines for such payments, which are to apply from 3rd September 2002, in community and voluntary organisations. While this is not one of the organisations referred to, the Court sees no reason to deviate from those guidelines, in the circumstances of this case.
The Court so decides.
Signed on behalf of the Labour Court
_7th November, 2002______________________
Enquiries concerning this Decision should be addressed to Larry Wisely, Court Secretary.