Jimmy Deenihan (Kerry North, Fine Gael)
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Question 72: To ask the Tánaiste and Minister for Enterprise, Trade and Employment her views on whether the payment of a redundancy payment followed in the rehiring of the same staff member with inferior terms and conditions is a genuine redundancy; and if she will make a statement on the matter. [44957/08]

Joe Carey (Clare, Fine Gael)
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Question 74: To ask the Tánaiste and Minister for Enterprise, Trade and Employment if the practice of paying somebody redundancy and then rehiring them, known as leave and return, comes within the Redundancy Payments Act 2003; and if she will make a statement on the matter. [44967/08]

Mary Coughlan (Donegal South West, Fianna Fail)
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I propose to take Questions Nos. 72 and 74 together.

In general, a redundancy arises where an employee's job ceases to exist, and the employee is not replaced for such reasons as rationalisation, reorganisation, insufficient work available, the financial state of the firm and company closures.

Redundancy is determined in line with strict criteria set down in the Redundancy Payments Acts 1967-2007 on the basis of claims submitted to my Department after the event of the redundancy. Redundancy is therefore determined having regard to the terms of the legislation and on the basis of fact and law. Where a genuine redundancy is deemed to exist, it is a legal entitlement, not a matter of discretion. Thus, in considering applications for payment, full account would be taken of the factual circumstances giving rise to the redundancies in parallel with the legislative provisions to establish the fit with the redundancy payments scheme.

The legislation enables the Minister to refer particular cases to the Employment Appeals Tribunal for a determination to establish the eligibility of cases under redundancy legislation. Therefore, while a preliminary view can be formed in advance as to the chances of any particular set of circumstances fitting the terms of the redundancy payments scheme, it is just that, a preliminary view. The actual decision will only be taken after the fact. Any decision will be taken in light of the circumstances that have transpired, in full knowledge of the terms of the redundancies offered, the pattern of take up, the nature of the changes in the workplace and so on.

Leo Varadkar (Dublin West, Fine Gael)
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This relates to the previous question on Aer Lingus. Will the Minister confirm that no preliminary view was given or sought from the Department with regard to these redundancies?

Mary Coughlan (Donegal South West, Fianna Fail)
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The Department was approached.

Leo Varadkar (Dublin West, Fine Gael)
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Did it give a preliminary view?

Mary Coughlan (Donegal South West, Fianna Fail)
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An approach was made to the Department seeking a preliminary view but it was on the basis of the initial proposal that was brought forward. As the Deputy knows, we moved beyond this initial proposal. Legal advice has been sought on the basis of giving a preliminary review but as the Deputy knows it is not legally binding and therefore we are not in a position to give a full determination. At the same time, it is important to state that the preliminary view was given on the initial application or consideration of the first application and then it was changed. As I stated and as has been indicated and there has been a great deal of interaction between the social partners and ourselves, it is only a preliminary view that can be given. If it is straightforward it can go through the normal processes but for absolute clarity the matter would need to go before the Employment Appeals Tribunal.

Leo Varadkar (Dublin West, Fine Gael)
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Accepting the caveat outlined by the Minister, that a preliminary view was given on the initial proposal, what preliminary view was given by the Department?

Mary Coughlan (Donegal South West, Fianna Fail)
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The preliminary view given to ICTU and IBEC at the time was that while it was not a legal interpretation and not legally binding, it appeared the proposals made by Aer Lingus in respect of redundancies as set out in the alternative proposal may qualify under the redundancy payment scheme. As I stated, I must be careful that it is only on the basis of a preliminary view and does not have a legal understanding which is provided for within the legislation. It will also be based on what claims will be made.