INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969
DEBENHAMS RETAIL IRELAND
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
Chairman: Mr Hayes
Employer Member: Mr Murphy
Worker Member: Mr Shanahan
1. Change of working hours due to medical problem
2. The worker was employed for almost 12 years as a Retail Assistant in the Company's Henry Street store. She developed problems with her legs and requested that she be allowed to sit at the customer desk but that this was refused. As a result she went out on sick leave at the end of December, 2009. Two months later she called in to the store to see if she could work reduced hours but was told that this was not possible.
In early 2010 the Company introduced a voluntary redundancy scheme which was to take place from May, 2010. The Henry Street store was to lose the equivalent of 54 full-time employees (FTEs). The worker concerned, who was still on sick leave, was one of the employees who applied for redundancy. She claims that she felt pressurised into taking the redundancy as she knew she could not return full-time and feared that she might not be able to avail of the redundancy if she stayed out on sick leave. She also claims that she was not give enough information regarding the redundancy offer. The Company's case is that the worker was given the information and the time necessary to make a decision, and that she made no complaints about the offer. She came into the office on 4th May, 2010, spoke to the Store Manager, signed the necessary documentation and accepted the redundancy package.
The worker referred her case to the Labour Court on the 7th June, 2011, in accordance with Section 20(1) of the Industrial Relation Act, 1969. A Labour Court hearing took place on the 20th October, 2011. The worker agreed to be bound by the Court;s recommendation which is as follows:
- The Court has carefully considered the information provided to it by the parties in this case.
The Worker in this case contends that she felt compelled to terminate her employment with the respondent company by way of voluntary redundancy due to its refusal to facilitate her request for reduced working hours arising out of a medical condition she developed and for which she was being treated. She is seeking an apology and compensation or reinstatement from the Company by way of remedy for the wrong she says she suffered.
The Court considered the submissions of both parties at a hearing into the matter on 21st October, 2011.
On the basis of the information provided to it by both parties in the course of that hearing the Court established the facts of the case as follows:
The worker approached the Company seeking reduced working hours at a time when it could not facilitate the request. Subsequently the Company sought to reduce its staff numbers by way of a voluntary redundancy process. The redundancy terms were agreed with the relevant trade union and received wide publicity within the Company. Furthermore the Company copied the terms on offer to all staff that were absent on sick leave at that time. The worker involved in this claim contends that she did not receive that documentation in the post. However it is clear from the information provided to the Court and the subsequent decision of all of the staff that were on long term sick leave to avail of the severance terms on offer that the Company made reasonable efforts to communicate the proposals to staff that were not attending for work through illness.
The claimant then attended at meetings with the Human Resources Department seeking accommodation with reduced hours. When this was not forthcoming she chose to avail of the redundancy terms on offer. She completed the relevant "expression of interest" document, was provided with details of her entitlements under the scheme and decided to avail of the offer.
At no stage was any pressure brought to bear on the worker to opt for redundancy. She advised the Court that she had been told that she could remain on sick leave and return to work when she was fit and able to do so. However she was concerned that the medical interventions she had planned might not be successful and she might not be in a position to return to work. She was concerned that there might be no redundancy option available at that time and she would find herself without work and without a redundancy package also. It was for that reason she decided to avail of the terms on offer.
The Court finds that the Company brought no pressure to bear on the worker to make a quick or hasty decision. The time allowed for reflection on the options available to her was tight but adequate in all the circumstances of the case and indeed ran into several weeks. There was no pressure, either overt or covert, brought to bear on the worker concerned to proceed without taking advice and indeed the Company told the Court that it recognised a Trade Union, operated a closed shop and extended generous facilities to it to engage with its members both collectively and individually during and after working hours. The Court also finds that there was not an oppressive atmosphere in the employment that discouraged workers from taking independent advice on the options available to them. Accordingly the Court finds that the worker in this case decided, of her own volition, not to seek advice from anyone either inside or outside the Company or her trade union on the options available to her.
The Court is satisfied that had she done so she may have made different choices as was evidenced by the actions she took some months later after she had taken advice from an outside agency. However that is a consequence of her own actions and not of those of the Company.
Accordingly the Court does not recommend concession of the worker's claim.
The Court notes that the Company contended that the worker had signed a waiver of her legal rights as part of the redundancy agreement and was not entitled to mount a case pursuant to Section 20(1) of the Industrial Relations Act 1946.
The Court has examined this matter in some detail and finds that the requirements set out by the High Court in Sunday Newspapers v Kinsella and Bradley were not met in this case. The worker was presented with the disclaimer for the first time on the day of the termination of her employment. It was not explained to her and she was not given the opportunity to take independent advice on the legal implications of the waiver for her.
Furthermore, the Court does not consider that pursuing a claim pursuant to Section 20(1) of the 1946 Act amounts to vindication of a legal right. Accordingly, the Court finds that the worker concerned was entitled to mount a case pursuant to Section 20(1) of the Industrial Relations Act 1946.
Finally the Court notes that the worker concerned may have been denied access to the option of reduced hours that may have been available to her under the terms of the Voluntary Severance Agreement. However the time to address this matter was before the worker opted to avail of the voluntary severance agreement. The fact that the worker decided not to seek advice on the options available to her under the Voluntary Severance Agreement and otherwise, is a matter for her and not one for which the Company can be held accountable. Ultimately she chose her own course of action free of pressure or coercion without availing of the independent expert advice that was available to her both at work and otherwise. It is not for the Court, after the fact, to undo her choices or to substitute different ones that might, in retrospect, yield a better or different outcome for her.
The Court so recommends.
Signed on behalf of the Labour Court
2nd November, 2011______________________
Enquiries concerning this Recommendation should be addressed to Ciaran O'Neill, Court Secretary.