FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : STJ HORTICULTURE LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal of a Rights Commissioner's Recommendation R-064132-IR-08/GC.
BACKGROUND:
2. The Worker concerned was employed by the Company in December 2002. In June 2003 the Worker was appointed to the position of Manager. He remained in this position until he was dismissed by reason of redundancy in March 2008. Prior to the Worker's redundancy the Union sought an enhanced redundancy package from the Company.The Company responded negatively to this request.
In 2002 St. Joseph's Horticulture Limited (STJ Horticulture Ltd.) was set up as a separate legal entity from St. Joseph's Centre for the Visually Impaired to help the community and also the socially disadvantaged. The funding for the organisation was provided by initially by FÁS and later by Pobal (85%) and the remainder was raised through fund-raising. Currently the Company is in the final stages of being wound up.
The issue was referred to a Rights Commissioner for investigation and recommendation. Her recommendation issued on the 3rd November 2008 as follows:-
"...... I recommend that the claimant receive three weeks pay per year of service plus statutory. The parties should cooperate with each other in seeking the funding needed to discharge the amount."
The Company appealed the recommendation to the Labour Court on the 11th October, 2008, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 27th January, 2009.
COMPANY'S ARGUMENTS:
3. 1. The Company stated that ex-gratia redundancy payments are discretionary and that there is no obligation on the Company to pay anything over the statutory entitlement.
2. The Company also stated that it had no spare cash and therefore no money available for an ex-gratia payment. Pobal had also refused funding for an ex-gratia payment.
3. Following the refusal of Pobal to fund the ex-gratia payment to the Worker the Company informed the Union that St. Joseph's Horticulture would be unable to pay anything over and above the statutory entitlement.
UNION'S ARGUMENTS:
4. 1. The Union maintained that the Worker's employment was in the community sector where there is a practice of enhanced redundancy payments of various values which in the main are funded by organisations or departments with responsibility for programme funding.
2. The Union contends that the Worker should not be treated in a less favourable manner to that of other employees who work in the community sector and received enhanced redundancy payments which are subsequently funded by Pobal.
DECISION:
The matter before the Court concerns an appeal by the employer against the Rights Commissioner’s recommendation, which recommended an ex gratia redundancy payment for a Worker, made redundant when the organisation ceased operation.
The Rights Commissioner recommended that three weeks’ pay per year of service plus the statutory redundancy payment should be paid to the worker.
Having considered the submissions of both parties, the Court notes that STJ Horticulture Ltd is a separate legal entity from St. Joseph’s Centre for the Visually Impaired which therefore has no liability for that Company’s deficits on being wound up. It also notes that the Claimant was employed since December 2002 and as Manager of the Castle Garden since June 2003.
The Union submitted to the Court that the Claimant should be treated in a similar fashion to Supervisors employed by Community Enterprise Schemes and Job Initiative Schemes, where ex gratia payments were paid to those made redundant.
Taking all the circumstances into account the Court upholds the Rights Commissioner’s Recommendation and dismisses the appeal. Therefore, the Court decides that both parties should engage with the appropriate funding authorities to seek the necessary funds to discharge the recommended ex gratia payment of three weeks’ pay per year of service.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
5th February, 2009______________________
MG.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Madelon Geoghegan, Court Secretary.