University College Cork v Bushin

JurisdictionIreland
JudgeKearns P.
Judgment Date17 February 2012
Neutral Citation[2012] IEHC 76
CourtHigh Court
Docket Number[2011 No. 248MCA]
Date17 February 2012

[2012] IEHC 76

THE HIGH COURT

Kearns P,

[2011 No. 248MCA]

IN THE MATTER OF THE PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 AND IN THE MATTER OF AN APPEAL PURSUANT TO SECTIOIN 15(6) OF THAT ACT

BETWEEN
UNIVERSITY COLLEGE CORK
APPELLANT
AND
DR. NAOMI BUSHIN
RESPONDENT
Abstract:

Employment law, Redundancy

Ex gratia payment - Fixed term employee - Comparators - Appropriate comparators - Whether ex gratia payment condition of employment - Whether Labour Court erring in finding that respondent treated less favourably than appropriate comparators - Appeal from Labour Court - Curial deference - Whether appeal should be allowed - Protection of Employees (Fixed-Term Work) Act 2003, section s. 15(6).

Facts section 5 of the Protection of Employees (Fixed-Term Work) Act 2003 provides, inter alia, that "(1) For the purposes of this Part, an employee is a comparable permanent employee in relation to a fixed-term employee if:- (a) the permanent employee and the relevant fixed-term employee are employed by the same employer or associated employers and one of the conditions referred to in subsection (2) is satisfied in respect of those employees,

(b) in case paragraph (a) does not apply…the permanent employee is specified in a collective agreement, being an agreement that for the time being has effect in relation to the relevant fixed-term employee, to be a type of employee who is to be regarded for the purposes of this Part as a comparable permanent employee in relation to the relevant fixed-term employee, or

(c) in case neither paragraph (a) nor (b) applies, the employee is employed in the same industry or sector of employment as the relevant fixed-term employee and one of the conditions referred to in subsection (2) is satisfied in respect of those employees, and references in this Part to a comparable permanent employee in relation to a fixed-term employee shall be read accordingly …"

Section 6 of the Act provides, inter alia, that "(1) …a fixed-term employee shall not, in respect of…her conditions of employment, be treated in a less favourable manner than a comparable permanent employee…"

The Labour Court determined that a complaint from the respondent pursuant to the Protection of Employees (Fixed-Term Work) Act 2003 was well-founded, and directed the appellant to pay to the respondent an ex gratia redundancy payment calculated on the basis of four weeks pay per year of service, in addition to her statutory redundancy entitlement on the basis of compartors within the industry rather than employed by the appellant given that no fixed term employees had ever been made redundant by the appellant. The appellant appealed that finding to the High Court.

Held by Mr. Justice Kearns in dismissing the appeal, 1, that the Labour Court had been correct in finding that an ex gratia redundancy payment represented a "condition of employment" within the meaning of the Protection of Employees (Fixed-Term Work) Act 2003. Case C 262/88 Barber v. Royal Exchange [1990] ICR 616 and Sunday Newspapers Ltd. v. Kinsella [2007] JEHC 324 applied; O'Cearbhaill v. Bord Telecom Eireann [1994] ELR 54 and Rafferty v. National Bus and Rail Union [1997] 2IR 424 distinguished.

2. That the Labour Court had not erred in finding that the respondent had been treated less favourably than appropriate comparators.

3. That bodies such as the Labour Court were entitled to a significant degree of curial deference with regard to the way in which they conducted their business.

1

JUDGMENT of Kearns P. delivered on the 17th day of February, 2012.

2

FACTS

3

1. University College, Cork (the "appellant") has brought this appeal pursuant to s. 15(6) of the Protection of Employees (Fixed-Term Work) Act 2003 (the "Act") against Determination FTC/10/42 of the Labour Court made on 20th July 2011 (the "determination").

4

2. The Labour Court determined that a complaint from Dr. Naomi Bushin (the "respondent") pursuant to the Act was well-founded, and directed the appellant to pay to the respondent an ex gratia redundancy payment calculated on the basis of four weeks pay per year of service, in addition to her statutory redundancy entitlement.

5

3. The respondent was employed as a full-time researcher on an EU- funded Marie Curie Excellence Grant Project in the Department of Geography at UCC on a fixed-term contract from 1st April, 2006 until 30th September, 2009. When the contract came to an end, the respondent was made redundant and a statutory redundancy was paid to her by the appellant. The fact of redundancy and the respondent's entitlement to redundancy are not in dispute.

6

4. On 18th March, 2010 the respondent referred a claim under the Act to the Rights Commissioner, alleging that, contrary to s. 6(1), she had been treated less favourably than a comparable permanent employee in that she had not received the same ex gratia redundancy payment paid to several valid comparators as defined by s. 5 of the Act.

7

5. The Rights Commissioner issued a decision on 19th November, 2010, finding the respondent's claim to be well-founded.

8

6. By notice of appeal dated 30th December, 2010 the appellant appealed the decision of the Rights Commissioner to the Labour Court. A hearing took place on 11th May, 2011 and the Labour Court made its determination on 20th July, 2011.

9

7. The Labour Court directed the appellant to pay to the respondent an ex gratia redundancy payment calculated on the basis of four weeks pay per year of service, in addition to her statutory redundancy entitlement.

10

8. In so doing, the Labour Court:-

11

(a) identified, as an appropriate comparable permanent employee, an employee within the sector of third level education rather than an employee of UCC itself, i.e. applied s. 5(1)(c) of the Act;

12

(b) found as a matter of fact that the comparator identified by the respondent had been treated in a more favourable manner in the same circumstances as the respondent;

13

(c) found as a matter of law that an ex gratia redundancy payment comes within the meaning of less favourable conditions of employment for the purpose of s. 6 of the Act; and

14

(d) rejected the appellant's submission that enhanced redundancy payments to permanent employees could be objectively justified under s. 7 of the Act.

15

9. At the hearing, the Labour Court paid considerable attention to the question of who would be an appropriate comparable permanent employee to the respondent in their consideration as to whether s. 5(1)(a) applied in this case. The Labour Court canvassed the views of both parties and sought supplemental submissions in relation to this issue. The appellant gave evidence that they had not made a permanent employee redundant, and this was not disputed by the respondent.

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ISSUES IN DISPUTE

17

10. The appellant asserts that the Labour Court erred in law in making its determination, namely that:-

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(a) The Labour Court erred in its construction and/or application of s. 5 of the Act;

19

(b) The Labour Court erred in its construction and/or application of s. 6 of the Act; and

20

(c) The Labour Court erred in its construction and/or application of s. 7 of the Act.

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LEGISLATION

22

11. Section 5 of the Act...

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