An Post v Monaghan & Wade

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 26 August 2013
• Neutral Citation: [2013] IEHC 404
• Court: High Court
• Date: 26 August 2013

[2013] IEHC 404

THE HIGH COURT

[No. 373 MCA/2012]

An Post v Monaghan & Wade

IN RE THE PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003

BETWEEN

AN POST

APPELLANT

AND

FINBARR MONAGHAN AND DEIRDRE WADE

RESPONDENTS

PROTECTION OF EMPLOYEES (FIXED TERM WORK) ACT 2003 S15(6)

PROTECTION OF EMPLOYEES (FIXED TERM WORK) ACT 2003 S6(1)

PROTECTION OF EMPLOYEES (FIXED TERM WORK) ACT 2003 S5

UCC v BUSHIN UNREP KEARNS 17.2.2012 2012 IEHC 76

PROTECTION OF EMPLOYEES (FIXED TERM WORK) ACT 2003 S6

EEC DIR 70/1999

SUNDAY NEWSPAPERS LTD v KINSELLA & BRADLEY 2008 ELR 53 2007/57/12225 2007 IEHC 324

CASTLEISLAND CATTLE BREEDING SOCIETY LTD v MIN FOR SOCIAL & FAMILY AFFAIRS 2004 4 IR 150 2004/7/1444 2004 IESC 40

NUI CORK v AHERN & ORS UNREP SUPREME 10.6.2005 2005/44/9152 2005 IESC 40

ADENELER & ORS v ELLINIKOS ORGANISMOS GALAKTOS (ELOG) 2007 AER (EC) 82 2006 3 CMLR 30 2006 IRLR 716 2006 ECR I-6057

DEL CERRO ALONSO v OSAKIDETZA SERVICIO VASCO DE SALUD 2007 3 CMLR 1492 2008 ICR 145 2007 IRLR 911 2007 AER (D) 87 (SEP) 2007 ECR I-7109

GAVIEIRO & ANOR v CONSELLERIA DE EDUCACION E ORDENACION UNIVERSITARIA DE LA XUNTA DE GALICIA CASE NO C-444/09 C-456/09 2011 IRLR 504

HORAN v CWS BOSCO IRL LTD UNREP MURPHY 7.11.2012 2012/17/4990 2012 IEHC 514

HENRY DENNY & SONS (IRL) LTD v MIN FOR SOCIAL WELFARE 1998 1 IR 34

WILTON v STEEL CO OF IRL LTD 1999 ELR 1 1998/34/13339

MIN FOR FINANCE v MCARDLE 2007 18 ELR 165 2007/40/8242 2007 IEHC 98

Employment - Labour Court - Appeal - Less favourable treatment - Comparators - Redundancy - Point of law - Finding of fact - Proportionality - Rationality - Legitimate objective - Objective grounds for justification - Permanent employees - Fixed-term employees - Protection of Employees (Fixed-Term Work) Act 2003

Facts: These proceedings concerned an appeal from the Labour Court on a point of law. The respondents had been employed by the appellant on fixed-term contracts until their expiry on the 30th September 2011. By notice of the 20 ^th August 2010, the appellant had sought interest from within its workforce for a voluntary severance/voluntary early retirement scheme (hereinafter "VS/VER scheme"). The respondents sought to apply but were informed by the appellant that the VS/VER scheme was only available to permanent employees. As a result, the respondents were only offered statutory redundancy payments following the expiry of their fixed term contracts. Through their union, the respondents lodged a complaint with the Labour Relations Commission on the 9th December 2011, claiming that the appellant had breached s.6(1) of the Protection of Employees (Fixed-Term Work) Act 2003 ("the 2003 Act") by failing to offer the VS/VER scheme to fixed-term employees. This argument was upheld by the Rights Commissioner on the 27th February 2012, and on appeal before the Labour Court on the 4th September 2012. The appellant appealed to the High Court.

The appellant argued that the Labour Court had erred in concluding that the respondents were treated differently than their comparators, namely two permanent employees of the appellant. It was said that the respondents had applied under the Voluntary Severance 1 Scheme, whilst the comparators had applied under Voluntary Severance 2 Scheme. The former was available to those that had more than one year but less than five years service reckonable for pension, the latter was for those with five or more year"s service. It was therefore argued that because the circumstances between the respondents and the comparators were different, there could have been no discrimination. It was also pointed out that the comparators had paid class D1 PRSI, whilst the respondents paid class A, the consequence of which was that the latter were entitled to statutory redundancy payments. As such, it was said that differing circumstances, and not differing treatment, had resulted in different outcomes between the comparators and the respondents. It was alternatively argued that s.6 of the 2003 Act allowed different treatment of fixed term employees from permanent employees if it could be justified on objective grounds. To that end, it was said that the VS/VER scheme was only applicable to permanent workers as the scheme was necessary to encourage permanent workers to leave secured employment, something that fixed-term employees did not have. It was said that such an approach was necessary as staff levels had to be reduced given the financial difficulties of the appellant business.

The respondents, relying on UCC v. Bushin [2012] IEHC 76, argued that the type of scheme offered was a condition of employment that had been denied to them. It was said that this represented less favourable treatment. It was also said that pursuant to s. 7(1) of the 2003 Act, grounds for less favourable treatment of employees could only be seen as objective if said treatment was conducted in pursuit of a legitimate objective; said treatment was necessary and proportionate to achieve that objective; and the treatment wasn"t based on considerations of the status of the employee. It was said that denying the respondents access to the VS/VER scheme was not necessary or proportionate to realise the appellant"s objective, therefore objective grounds for justification did not exist. It was further argued that the High Court did not have authority to interfere with the Labour Court"s decision as there was no identifiable error of law or unsustainable finding of fact.

Held by Hedigan J that the Court could only hear an appeal from the Labour Court if it was based on an identifiable error of law or a finding of fact that was irrational in light of the available evidence. It was clear to the Court that the appellant"s treatment of fixed-term employees was less favourable than its treatment of permanent employees because the latter were able to claim increased redundancy payments whilst the former were not. It was pointed out that the appellant effectively accepted that it had treated fixed-term workers differently because their employment status was less secure.

In regards to the appellant"s argument that there were objective grounds that justified the difference in treatment of the fixed-term workers from the permanent workers, it was held that the appellant"s aim of reducing staff levels was a legitimate objective in light of its financial difficulties. However, it was said that only offering the VS/VER scheme to permanent employees was disproportionate in pursing this aim as the scheme could also have been offered to fixed-term workers to buy out the remaining time on their contracts. Because the means chosen by the appellant could not be described as the minimum unfavourable treatment, it was held that the appellant"s actions could not be said to be objective grounds for the purposes of justification. It was therefore determined that the Labour Court had not erred in coming to the conclusion it had in light of the law and the evidence it had available.

Appeal refused.

1 Judgment of Mr. Justice Hedigan delivered on 26th day of August 2013.

Application

2 1. This case is an appeal on a point of law. The appellant maintains that the Labour Court erred in law and seeks a declaration to that effect in respect of its determination that:-

3 (i) The respondents' right to equal treatment in respect of their employment conditions was contravened in circumstances where voluntary severance/voluntary early retirement schemes which were available to permanent employees were not applicable to the respondents by virtue of the fact that they were fixed-term workers;

4 (ii) the appellant could not rely on its need to incentivise permanent employees to leave employment voluntarily, in circumstances where those permanent employees currently enjoy security of tenure and cannot be made compulsorily redundant.

Factual background

5 2 2.1 The appellant appeals on a point of law against a decision of the Labour Court pursuant to S.15 (6) of the Protection of Employees (Fixed-Term Work) Act 2003 (hereinafter "the 2003 Act"). The respondents are fixed term workers within the meaning of the 2003 Act and were employed by the appellant on a series of fixed-term contracts the last of which ended on the 30 ^th September, 2011. The first named respondent was continuously employed by the appellant from the 6 ^th October, 2008, until the 30 ^th September, 2011, and the second named respondent was similarly employed from the 20 ^th October, 2008, to the 30 ^th September, 2011.

6 3 2.2 The appellant sought expressions of interest in a voluntary severance/voluntary early retirement scheme (hereinafter "VS/VER scheme") by notice dated the 20 ^th August, 2010. There are two parts to the VS scheme- VS1 and VS2.The respondents sought to apply under VS1 which is available to those having more than one year but less than five years service reackonable for pension. The scheme however is restricted to permanent employees of the appellant who were paid enhanced redundancy payments. The respondents were excluded from the scheme and they received statutory redundancy payments only. The first named respondent received a payment of €3,169.70 and the second respondent received €3,225.93. The first named respondent accepted his payment on the 3 ^rd February, 2012, and signed the relevant documentation. The second named respondent has refused to accept her cheque or to sign the relevant documentation.

7 4 2.3 The respondents claim that they should have been treated in an identical manner to comparable permanent employees for redundancy purposes, entitling them to avail of the terms of the VS1 scheme.

8 5 2.4. The Civil Public and Services Union (CPSU) on behalf of the respondents lodged a complaint in this regard with the Labour Relations Commission on the 9 ^th December, 2011, in which the respondents claimed that the...