The High Court has rejected University College Cork’s appeal against a Labour Court determination awarding a former fixed-term researcher an enhanced redundancy payment.
In a judgment delivered on 17 February 2012, President of the High Court Kearns upheld the Labour Court’s determination that Dr Naomi Bushin’s complaint under the Protection of Employees (Fixed-Term Work) Act 2003 was well-founded. The court declined to grant the relief UCC sought, leaving the determination in place.
Dr Bushin worked full-time as a researcher on an EU-funded Marie Curie Excellence Grant Project in UCC’s Department of Geography from 1 April 2006 to 30 September 2009. When her contract ended, she was made redundant and received statutory redundancy pay. The fact of redundancy and her entitlement to that statutory payment were not disputed.
She later argued that she had been treated less favourably than comparable permanent employees because she had not received the same ex gratia redundancy payment. The Rights Commissioner upheld her complaint in November 2010. On appeal, the Labour Court directed UCC to pay her an ex gratia amount calculated at four weeks’ pay for each year of service, in addition to statutory redundancy.
UCC challenged the determination on three grounds: the choice of comparator, whether an ex gratia payment was a condition of employment, and whether enhanced redundancy terms for permanent employees could be objectively justified.
Kearns found that the Labour Court had considered whether a comparator existed within UCC before moving through the other categories in section 5 of the Act. Because UCC had not made a permanent employee redundant, he said, such an employee could not be an appropriate comparator in the circumstances. He also rejected the argument that the absence of redundancies among permanent employees meant there could be no less favourable treatment, saying that approach could encourage employers to select fixed-term staff for redundancy to avoid a precedent for enhanced payments.
The court agreed that an ex gratia redundancy payment could constitute a condition of employment. It also held that UCC’s proposed justification was based on Bushin’s fixed-term status, which section 7(1) does not permit as an objective ground.
The decision was an appeal on the Labour Court’s determination. The High Court found no legal error warranting intervention and dismissed UCC’s appeal, leaving the payment direction undisturbed.