FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : PERMANENT TSB (REPRESENTED BY IRISH LIFE & PERMANENT PLC T/A PERMANENT TSB) - AND - A WORKER DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Ms Ni Mhurchu |
1. Redundancy.
BACKGROUND:
2. The Worker concerned was employed by Permanent TSB from 1978 to 1992, at which time she moved abroad temporarily. On her return she resumed employment with the Company in January 2000.
In 2009 she was given the opportunity of taking a career break. The Worker maintains that she asked if she would be eligible for a redundancy package if such became available while on the career break. She contends that it was confirmed to her that she would be eligible but could not be guaranteed a place. Based on this information she took a career break.
Subsequently when a redundancy offer did come up the Worker contacted the Bank to be told that it was only for staff that were working then.
The Company's position was that the Voluntary Severance Scheme (VSS) was only available to employees on the payroll at that time and that anyone then on an incentivised career break, such as the Worker, was thus ineligible under the terms of that scheme.
The Worker referred her claim to the Labour Court on the 28th June 2010, in accordance with Section 20(1) of the Industrial Relations Act, 1969 and agreed to be bound by the Court's recommendation. A Labour Court hearing took place on the 23rd September 2010.
The Court adjourned the hearing for two weeks to enable the parties to reach an agreement, failing which the Court would issue its recommendation. As no agreement was reached between the parties the Court proceeded to issue its recommendation.
WORKER'S ARGUMENTS:
3. 1. The Worker maintains that she took a career break on the understanding that she would be eligible to be considered for a redundancy package if such became available during the tenure of her break.
2. The Worker contends that she was still an employee,( "worker") of the Banks', despite being on a career break.
3. The Worker maintains that she signed the form for a career break on condition that "also as discussed if redundancies are offered since I am eligible please put my name up."
COMPANY'S ARGUMENTS:
4. 1. The Company maintains that the Worker was never given any assurance prior to the commencement of her career break that she would be eligible to be considered for (let alone somehow entitled to) voluntary redundancy while on career break, not least because there was no voluntary redundancy scheme in contemplation or in place at that time.
2. The Company contends that the Worker was ineligible for the Company's Voluntary Severance Scheme introduced on the 2nd December 2009, as was any other person then on a career break from the Company's employment.
3. The Company maintains that as the Worker had left it's employ on the 3rd June 2009 before seeking to complain to the Labour Court on the 23rd June, 2010, she is not a "worker" within the meaning of the Act and that therefore the Court lacks jurisdiction to hear the case.
FINDINGS OF THE COURT:
The Court has carefully considered the submissions of both parties in this case and finds as
follows:
1. The Worker involved in this dispute is on an extended career break and retains a right to return to work with her Employer. Accordingly the Court is satisfied that her relationship with her Employer is not completely severed and she comes within the jurisdiction of the Court.
2. The Worker concerned agreed to the incentivised career break on the basis that she had been assured by her Employer that she was eligible to apply for consideration for any future voluntary redundancy scheme. She hand wrote a note to this effect on the official career break acceptance form.
3. The Employer submitted that the management staff dealing with this issue had never given and could not have given such a commitment as no such scheme was in being at that time and the terms of any future scheme had not been determined.
4. The Employer acknowledged that they had received and processed the Claimant’s acceptance form that contained the hand written note. However the Employer submitted that the staff processing the form had failed to notice and or appreciate the significance of the note. They admitted that the note should have been picked up at the time and acted upon. However the Employer submitted that the terms of the incentivised career break could not be unilaterally amended by the Employee and the mistake on the part of the staff processing the acceptances, whilst regrettable, did not constitute an acceptance of a new provision in the agreement.
5. When the Employee commenced the incentivised career break she was operating under the mistaken belief that she was eligible to apply for consideration under any future incentivised redundancy scheme.
6. It was a failure on the part of the Employer that gave rise to this position and they must take responsibility so doing.
7. Normally the Court would try to restore a person to the position they would have been in had they not suffered a wrong in the first place. However in this case it is not possible or practical to do this. The right that the Claimant seeks to enforce is the right to be considered for an enhanced voluntary redundancy/severance scheme.
8. That scheme is now closed and it is not real or practical to ask the organisation to reopen it to consider an application for inclusion on it by the Claimant.
RECOMMENDATION:
9. Accordingly the Court recommends that the Complainant be compensated in the sum of €7,500 in full and final settlement of this claim. This recommendation is without prejudice to her entitlements under the incentivised career break scheme under which she is currently operating.
The Court so recommends.
Signed on behalf of the Labour Court
Brendan Hayes
11th October, 2010______________________
MG.Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Madelon Geoghegan, Court Secretary.