INDUSTRIAL RELATIONS ACTS, 1946 TO 2001
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
SCOTTISH LEGAL LIFE
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
(REPRESENTED BY AMICUS - MSF)
Chairman: Mr Flood
Employer Member: Mr Pierce
Worker Member: Mr. Somers
1. Appeal against Rights Commissioner's Recommendation IR10989/02/TB
2. The worker joined the Company in 1967 and worked as an agent until he was made redundant last year, along with 11 other employees. During his employment, the worker was paid expenses of €234 every 4 weeks. The dispute concerns the fact that the expenses element of his earnings was not included in his redundancy package. The worker believes that this resulted in a loss of approximately €6,000.
The worker referred his case to a Rights Commissioner and his recommendation was as follows :
"I recommend that the Company should include €127 per month i.e. 50% of the fixed expenses in calculating the earnings of the claimant for redundancy purposes."
The Company appealed the recommendation to the Labour Court on the 24th of February, 2003, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 6th May, 2003.
COMPANY'S ARGUMENTS :
4. 1. The worker accepted the collectively agreed redundancy terms and payments but disputed the calculation of the redundancy entitlement. He is the only one of the 12 employees made redundant to do so.
2. The expense allowance was not paid every 4 weeks as it was not paid during holiday or sick leave.
3. The Company does not believe that there was an agreement that the expenses would be included in the redundancy package, as the Union claims.
4. The Company has corresponded with the Revenue Commission which confirms that the matter of inclusion or exclusion of the expenses is for the Company to decide.
UNION'S ARGUMENTS :
3. 1. The worker had a clear expectation that the expenses element of his salary would be included in the calculation of his redundancy package.
2. Four other elements of the workers' salary - threshold allowance, new business, 25% commission, and house purchase - were all included in the redundancy cheque.
3. The Revenue Commissioners have confirmed that where expenses are paid as a fixed amount through payroll, and which have always been treated as gross pay, they should be included in calculations for redundancy purposes.
The Court has considered the written and oral submissions and the information supplied after the hearing.
While the parties have argued on the Revenue Commissioner's interpretation of what should be included for redundancy and the legal requirements to include certain payments, this is a situation in which a deal in excess of statutory payments was agreed.
The dispute, therefore, centres on what was agreed between the parties, rather than one of legal entitlement.
Having considered all of the information supplied, and in the absence of evidence to support the Union's case that it was agreed that expenses would be included, the Court does not recommend concession of the Union's claim.
The Court, therefore, upholds the appeal and rejects the Rights Commissioner's Recommendation.
Signed on behalf of the Labour Court
23rd June, 2003______________________
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.