INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
SECTION 13(9); INDUSTRIAL RELATIONS ACT; 1969
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Ms Jenkinson
Employer Member: Mr Doherty
Worker Member: Mr Nash
1. Appeal against Rights Commissioner's Recommendation IR21433/04/MR.
2. The appeal concerns a worker who commenced employment with the Company as Director of Organisation in April, 2002. The worker claimed that she was subjected to bullying and harassment by a senior member of management. The Company rejected the claim. The dispute was referred to a Rights Commissioner for investigation . During the Rights Commissioner's investigation the parties informed him that following a recent Labour Court hearing the parties were awaiting clarification from the Court regarding
the Association's sick pay scheme. On the 25th March, 2005 the Rights Commissioner issued his recommendation as follows:
"I now formally recommend that the worker should accept that her employment relationship with ICMSA has irretrievably broken down and that she should agree to voluntarily resign at an early date from her employment with the Association.
In return the Association should agree, on a once-off and totally exceptional basis, to make an all-in ex gratia lump sum payment of €60,000 to the worker, with this payment to be made on as tax-efficient a basis as possible.This payment is to be regarded as inclusive of any sick pay that the worker might claim following a clarification from the Labour Court, as outlined above, but exclusive of any entitlements that she might have regarding leave not taken by her prior to the termination of her employment with the Association.
In the event that this recommendation has not been accepted by the parties prior to the date of the worker's return to work, the parties should agree that the worker will not physically return to work on that date but will instead take annual leave. The parties should also agree that in these circumstances, they will both make every effort to ensure that all matters are fully resolved prior to 31st May, 2005.
The parties should both accept that the payment above would be in full and final settlement of all matters in dispute between the parties. They should further commit themselves to treating all the matters in dispute, including in particular the terms of this recommendation, in the strictest confidence"
( The worker was named in the Right's Commissioner's recommendation).
On the 26th April, and the 29th April, 2005 respectively the Union and the Company appealed the recommendation to the Labour Court. The Court heard the appeal on the 27th May, 2005.
3. 1. The Union accepts that the working relationship between the claimant and the company has irretrievably broken down. The worker had an expectation of a long and successful career in the Company and now has to seek alternative employment which will be very difficult.
2. The amount of the Rights Commissioner's award does not adequately compensate the worker for the way she was treated by the Company. The compensation amount should be increased substantially.
4. 1. The Company is experiencing significant financial difficulties. It considers that the Rights Commissioner's award is excessive, given the claimant's short period of service in the employment.
2. Whilst the Company accepts that the employer/employee relationship has broken down it cannot, given its commercial circumstances, accept that the payment recommended by the Rights Commissioner should be made to the claimant.
Both sides appealed the Rights Commissioner’s recommendation to the Court. The Court has considered the views of the parties expressed in their oral and written submissions.
Immediately following a hearing in February 2005, which dealt with a number of issues in dispute, the Court issued directions to resolve matters and urged both parties to comply with these directions. The Court expresses a level of disappointment that the ICMSA failed to follow the Court’s directions.
Having considered all aspects of the claim, the Court concurs with the findings and recommendation of the Rights Commissioner and upholds his recommendation. The Court notes the Rights Commissioner's conclusion that"the worker should accept that her employment relationship with ICMSA has irretrievably broken down and that she should agree to voluntarily resign at an early date from her employment with the Association."
Therefore, the Court recommends that ICMSA should pay an all-in ex gratia lump sum payment of €60,000 to the worker - this payment should be made in the most tax efficient way possible and should include her entitlement to retrospective sick pay but is exclusive of an outstanding entitlement to 36 days annual leave.
The parties should make every effort to ensure that all matters are resolved within a period of two weeks from the date of this recommendation. The Court recommends that the payments should be accepted by the worker in full and final settlement of all claims against the ICMSA.
The Court upholds the Rights Commissioner’s recommendation.
The Court so decides.
Signed on behalf of the Labour Court
27th May, 2005______________________
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.