McKernan v Cork City Council
| Jurisdiction | Ireland |
| Judgment Date | 26 May 2006 |
| Judgment citation (vLex) | [2006] 5 JIEC 2601 |
| Date | 26 May 2006 |
| Court | Employment Appeal Tribunal (Ireland) |
Employment Appeals Tribunal
EAT: McKernan v Cork City Council
Employment law - Frustration - Whether the claimant's contract of employment was terminated by reason of the abolition of his current position - Unfair Dismissals Acts, 1977 to 2001
EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD649/2003 RP323/2003
MN1790/2003
CLAIM(S) OF:
Patrick McKernan, The Brambles, Rochestown Road, Cork
against
Cork City Council, City Hall, Cork
under
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2001
REDUNDANCY PAYMENTS ACTS, 1967 TO 2003
UNFAIR DISMISSALS ACTS, 1977 TO 2001
I certify that the Tribunal
(Division of Tribunal)
| Chairman: | Mr. T. Halpin B. L. |
| Members: | Mr. M. Forde |
| Mr J. Mc Donnell |
heard this claim at Cork on 27th April 2005
and 28th April 2005
and 11th October 2005
and 12th October 2005
and 13th October 2005
Facts The claimant was employed as a rent collector by the respondent. However, the introduction of the Local Government Act, 2001 rendered his position obsolete. Subsequently, the claimant refused to accept an alternative position offered by the respondent. The claimant alleged that he was unfairly dismissed.
Held by the Tribunal in dismissing the claim: That the claimant unreasonably refused the offer of a new position with the respondent following the disappearance of his position as rent collector and therefore the claimant terminated his own employment.
The Tribunal heard evidence from the claimant. He told the Tribunal that he bad been employed as a rent collector since 1976. He collected on the first four days in the week and balanced his books on the fifth day. When he started his employment, his grade was analogous to the clerical grade 3.
In 1980 this. was changed and his grade was made analogous to grade 4. At the grade the claimant was in he was unable to seek promotion to grade 5, as it was required that candidates should have two years clerical experience. The claimant told the Tribunal that there were three or four of the twelve rent collectors who had started as clerical officers and they could revert to being clerical officers if they wished.
When “Better Local Government” was introduced the claimant learned that the position of rent collector (claimant's position) was to be abolished. The claimant was not a member of the union at the time but told the Tribunal that he was fairly aware of what was going on as he had attended group meetings.
In July 2002 the claimant and a colleague were concerned and sought the advice of a solicitor. The claimant told the Tribunal that he was not aware of the impact that the Local Government Act, 2001 would have on his employment and he believed he could not be moved from his position without his consent. On the 17th July 2002 the claimant's solicitor wrote to the respondent stating that the claimant's terms of employment were covered by the 1943 Local Government Officers Regulations. The respondent, through it's personnel officer, replied to this letter on 22 August 2002 stating that it was not the intention of the respondent to remove the claimant from his office nor was any such proposal being made. The letter also pointed out that the 1943 Local Government Officers Regulations had been replaced by the terms of the Local Government Act 2001 and that it will not deal with the claimant individually, that negotiations with the union had taken place and the respondent would not negotiate with the solicitor representing the claimant. The claimant told the Tribunal that he felt that he had no rights at that stage the respondent's personnel office had said in the letter that he would not even talk to him. The letter mentioned that the union had balloted its members on the matter. The claimant told the Tribunal that the ballot had nothing to do with him as he was not in the union. Door to door collections were to finish on 1st October 2002 and as that was only two months away the claimant thought someone from the respondent's side would sit down and talk to him.
The claimant went on annual leave in September 2002. On 30th September 2002 the claimant was asked for his float and told to report to the senior officer in Housing on 2nd October 2002 for his new assignment. The claimant's colleagues were re-deployed and the claimant was told that he was assigned to Social Housing. His understanding was that the Social Housing department dealt with anti-social behaviour. The following morning the claimant and his two colleagues reported for work and told the officer in `rents' that they would not take up their assignments and left their phone numbers with her and reported to personnel.
The claimant was not given terms and conditions of employment. The claimant told the Tribunal that some of his colleagues went back to rent monitoring and collecting until February 2003.
The officer in `rents' reported that the claimant and his colleagues would not take up their positions to the director of services. The director of services in turn contacted the claimant and his colleagues and told them if they did not report to their new positions they would be issued with a verbal warning. They were given two hours to consider what was put to them but they still refused and were given verbal warnings. The claimant told the Tribunal thathe then got a call at home from a union representative who told him that he should take what he was offered and that the respondent “has them out now”. The claimant told the union representative that he was not in the union and that he had no right discussing his position.
One of the claimant's two colleagues accepted the voluntary retirement package but the claimant and his other colleague did not. The claimant and his colleague wrote and arranged a meeting with the personnel officer. The claimant met with the personnel officer and told him that he would be more than happy to take the position that had been offered to his colleague who had taken the retirement package. The personnel officer told him that that position was open to him. The claimant told the personnel officer that any retirement package to be offered to him would have to be enhanced for him to accept.
The claimant and his colleague were out on certified sick leave at this time. They had been advised buy an officer of the respondent to keep themselves `covered' and not `awol' while absent from work. The claimant received terms on a voluntary retirement package in writing on 1st November 2002. The claimant wanted the word `voluntary'...
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