INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
MAGEE & CO LTD
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Ms Jenkinson
Employer Member: Mr Grier
Worker Member: Ms Ni Mhurchu
1. Appeal of Rights Commissioner's Recommendation IR/6420/03/TB.
2. The worker had been employed with the Company for over 17 years. During the Christmas period of 2001 the worker was involved in a traffic accident, which necessitated her being off work for a considerable time. As she was not able to furnish a return to work date the Company terminated her employment on the 10th January 2003.
- On the 25th February, 2003 the Company sought applications for voluntary redundancy. The Union contacted the Company requesting that any redundancy package should apply to the worker. The Company claim that as the worker was not employed by the Company at the time of the redundancy she did not qualify. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 15th April, 2004, the Rights Commissioner issued his recommendation as follows:
“The claimant was not employed by the Company at the time the redundancy programme was announced and therefore does not qualify for the severance package.
- However taking all the circumstances into account I recommend that she be paid an ex-gratia sum of €5,000.“
On the 17th May, 2004 the Company’s representatives appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 16th September, 2004.
3.1 The Company terminated the workers contract on the grounds that she had been absent from work since Christmas 2001 and there was no indication, medical or otherwise of her being able to return to work.
2. The Company could not hold the workers job open indefinitely.
3. The Rights Commissioner was correct in stating that the worker was not employed at the time of redundancy and therefore did not qualify for a severance package.
4. There are no grounds for paying an ex-gratia payment, no such case was made at the Right Commissioner's hearing.
4.1 After 17 years employment with the Company, the worker's dismissal was in effect a redundancy and she is entitled to be treated no less favourably than her colleagues who received severance payments.
2. The worker was not replaced upon her dismissal, this normally constitutes redundancy.
3. Considering the workers long service and excellent record with the Company and her wish to return to work when medical circumstances permitted, her dismissal was severe and it would not be unreasonable to expect the Company to hold open her job for a period to facilitate her return to work.
4. The figure of €5,000 awarded by the Rights Commissioner is modest, representing less than 40% of what her colleagues received.
5. The Rights Commissioners decision was fair and balanced and took all factors and submissions (both written and verbal) into account and it should be upheld.
The Court has considered the oral and written submissions, to the Company's appeal of the Rights Commissioner's recommendation. The Court accepts that the decision to terminate the employment of the claimant was made prior to the Company's decision to reduce their staff numbers by means of redundancy, and that the termination was not influenced in any way by the impending redundancies.
The Court, however, is of the view that in all the circumstances of this case, a goodwill gesture should be made to the claimant and accordingly recommends a payment of €2,000 in full and final settlement of all claims against the Company.
The Rights Commissioner's recommendation is varied accordingly.
The Court so decides.
Signed on behalf of the Labour Court
Enquiries concerning this Decision should be addressed to Jackie Byrne, Court Secretary.