Spataro and Secretary, Department of Employment

The matter before the Deputy President F D O’Loughlin concerned an appeal by Mr Spataro and other applicants against a decision by the Secretary, Department of Employment. The central dispute revolved around whether a company policy, referred to as "the Policy," constituted a "governing instrument" for the calculation of redundancy pay entitlements under section 6(5) of the relevant Act, in circumstances where the employer, Skinner Engineering, had become insolvent.

The legal issues the Tribunal was required to determine were twofold: first, whether the Policy could be considered a governing instrument at all within the meaning of the Act, and second, if it could be, whether it applied to the applicants' employment with Skinner Engineering. This required an examination of the terms of employment for the applicants, Mr Strus and Mr Spataro, and the circumstances under which they received or were made aware of the Policy.

The Deputy President reasoned that the absence of express written confirmation of the Policy's incorporation into the applicants' employment contracts, or the fact that claims made were for lesser amounts than the Policy provided, did not preclude the Policy from being a governing instrument. Inconsistent conduct was explained, and the specific incorporation of the Policy into a more recently hired employee's contract did not alter the conclusion, as the applicants' arrangements were established earlier by a different individual. The Tribunal found that the Policy was indeed a governing instrument for the calculation of the applicants' redundancy pay entitlements.

Consequently, the Tribunal set aside the decision under review, determining that for the purposes of section 6(5) of the Act, the Policy was included as a governing instrument for the calculation of each applicant's redundancy pay entitlement from Skinner Engineering.