INDUSTRIAL RELATIONS ACTS, 1946 TO 2001
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990
- AND -
(REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION)
Chairman: Ms Jenkinson
Employer Member: Mr Carberry
Worker Member: Ms Ni Mhurchu
1. Early leaving scheme.
2. The Company issued Group HR Circular 15/2002 (VL Deal 1) - Introduction of Flexible Working Option in November, 2002, and Group HR Circular 17/2002 (VL Deal 2) - Introduction of Voluntary Leaving Programme for Full-time Employees in December, 2002. VL Deal 2 meant that the worker concerned could leave with 35/40ths of a full pension on the 1st of March, 2003. VL Deal 1 meant he could work part-time up to the 29th of February, 2004, and leave with 36/40ths of a pension. The worker opted for VL Deal 1. The dispute between the parties concerns a clause in VL Deal 1 which stated as follows:
'Voluntary Leaving Deal.The terms are those of the voluntary leaving offer available at the time of application. Applicants would be eligible for any subsequent deal launched between the commencement of the first voluntary leaving offer and the final voluntary leaving closing date of 29th February 2004, whichever is the more favourable.'
In August, 2003, a third Circular 4/2003 - (VL Deal 3) - was on offer which would have allowed workers to avail of an extra 2.5 years' part-time work. This would bring the worker's pension up to 37.5/40 ths. The worker applied for VL Deal 3 but was told by the Company that he was ineligible for it. The reason given was that VL Deal 1 contained a condition which states as follows:
"The 3 (three) part-time working options are not available to staff who are working part-time or job sharing".
- The dispute was referred to the Labour Relation Commissions and a conciliation conference took place. As the parties did not reach agreement, the dispute was referred to the Labour Court on the 21st of January, 2004, in accordance with Section 26(1) of the Industrial Relation Act, 1990. A Labour Court hearing took place on the 18th of February, 2004, the earliest date suitable to the parties,
3. 1. The clause enabling employees to avail of subsequent, more favourable, VL deals was vital to induce people to take the original VL deal. If the worker concerned had not opted for the original deal he would be eligible for the new scheme.
2. VL Deal 1 clearly stated that applicants would be eligible foranysubsequent deal. It is unfair that the commitment given to the worker in the original VL Deal can be revoked simply by including a specific clause (4.15 in VL Deal 3) which excludes him from taking the 2.5 year option.
4. 1. An employee who has chosen one of the part-time options set out in VL Deal 1 does not have the option to switch from that scheme to another part-time scheme offered at a later date, i.e. (VL Deal 3).
2. It was emphasised at all times to the worker that the 29th of February, 2004, was the last date for him to leave.
3. The worker had a 4 week period from the date of his application during which he could have withdrawn the application.
A dispute arose over the interpretation of Circular 15/2002 and Circular 4/2003 concerning an employee's opportunity to avail of Early Leaving Schemes.
The claimant chose to avail of the "Part Time Working with Voluntary Leaving" option contained in Circular 15/2002, an explanatory leaflet issued at the same time included the following statements:-
"Voluntary Leaving Deal; the terms are those of the voluntary leaving offer available at the time of the application. Applicants would be eligible for any subsequent deal launched between the commencement of the first voluntary leaving offer and the final voluntary closing date of 29th February, 2004, whichever is the most favourable".
(Details contained in Appendix 2 and clause 4.1 and in Option 3.)
"You can change your mind within one calendar month of signing up to the option of Part Time Working with Voluntary Leaving (i.e. 31st January 2003). You must commence part time working no later than 1st March, 2003. You cannot change your mind after that date and must leave the Company one calendar year from the commencement of part time working (subject to the individuals leaving the Company by 29th February, 2004). Therefore, it is important that you consider this option carefully and read all available information to make a fully informed decision".
(Details contained in clause 2.4.2. and clause 4.2)
A number of Early Leaving Schemes were made available to staff between 2002 and 2003, all of which were designed to encourage staff to leave the Company prior to their retirement date. Each scheme had eligibility criteria and each included a variety of incentives.
The claimant signed up to the scheme on 17th February, 2003, and accepted that his last day of service would be 29th February, 2004. He subsequently sought to apply for another scheme (Circular 4/2003) but was disallowed on the basis that he was not eligible to apply as it excluded part-time workers, (he was working part time at the time), and because the new scheme specifically excluded those who had applied for the previous scheme covered by Circular 15/2003 scheme.
The Court accepts that a certain amount of ambiguity exists as circular 15/2003 clearly allowed for an employee to avail of any subsequent schemes, however, the Court is of the view that such access did not alter the fundamental criteria that the employee must leave on the date he opted and signed for (29th February, 2004) and for which he received an incentive payment (20% of basis pay).
The Court accepts that the development of further schemes may have allowed the claimant access to enhanced terms on leaving but did not allow for his employment to be prolonged. The deals introduced subsequent to Circular 15/2003 included a number of different options which he could have availed of, however, Circular 4/2003 specifically excludes those engaged in part-time working and prohibits those who applied under the terms of Circular 15/2003.
Considering the cooling off period and the cautionary clauses contained throughout the documents and resignation form, coupled with the claimant's familiarity with the detail of the schemes, the Court must accept that he fully understood what he was signing and accepting payment for, and which included an enhancement of his pension entitlements. For these reasons it is understandable that the Company is entitled to accept that the claimant's voluntary termination date of 29th February, 2004, is valid.
Accordingly, the Court does not recommend concession of the claim.
Signed on behalf of the Labour Court
26th February, 2004______________________
Enquiries concerning this Recommendation should be addressed to Ciaran O'Neill, Court Secretary.