UCC loses payment appeal

By Catríona Hughes

University College Cork must pay a former staff member in the research department an ex gratia redundancy payment in addition to her statutory redundancy entitlement after losing a challenge to a Labour Court order.

President of the High Court Mr Justice Nicholas Kearns decided that UCC must pay Dr Naomi Bushin an additional redundancy sum, which is to be calculated on the basis of four weeks’ pay per year that Bushin worked at UCC.

Bushin worked in UCC on a fixed-term contract from April 1st 2006 until September 30th 2009. She was paid statutory redundancy when her contract expired.

The fact that Bushin was a fixed-term employee initially denied her an ex gratia payment. However, the Labour Court found that Bushin was treated unfairly in comparison to her comparators.

Mr Justice Kearns stated that the Labour Court had given the matter careful consideration and he would not object to its decision.

A complaint submitted by Bushin caused UCC to take the High Court challenge to the Labour Court. The issue of redundancy was not disputed but Bushin later complained that she had been treated less favourably than a fellow former permanent employee because she had not received the same ex gratia redundancy payment.

Bushin’s complaint was upheld by a rights commissioner and UCC appealed the decision to the Labour Court, which later rejected the appeal.

An appeal to the High Court was then made by UCC arguing that the Labour Court erred in law in terms of its construction of certain provisions of the Protection of Employees (Fixed Term) Work Act 2003. UCC complained that the Labour Court failed to recognise that enhanced redundancy terms for employees on permanent contracts could be objectively justified.

The High Court judge remarked that he was content that the Labour Court considered the relevant provisions of the Act and its application to Bushin in terms of many categories of permanent employees.

No permanent UCC employees had been made redundant and the judge could not see how such employees could be appropriate comparator candidates for the relevant EC directive or purposes of the Act.

According to The Irish Times, “an inherent artificiality” was evident in arguing that issues of discrimination could arise because no permanent employees had actually been made redundant.

Within the terms of the 2003 Act, the Labour Court correctly found that an ex gratia payment represented a “condition of employment”.

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