RPD2114

SUBJECT:
1. Appeal Of Adjudication Officer Decision No ADJ-00023221.

BACKGROUND:

2. 2. The Claimant appealed the Decision of the Adjudication Officer to the Labour Court on 4 June 2020 in accordance with the Redundancy Payments Acts 1967 to 2014. A Labour Court hearing took place on Friday 4 June 2021. The following is the Determination of the Court:




DETERMINATION :

This is an appeal by Helaro Ltd trading as the Key Collections against an Adjudication Officer’s Decision given under the Redundancy Payments Act 1967(the Act). The Adjudication Officer held that the claim by the Complainant for redundancy under the Act was well founded. In line with the normal practice of the Court, the parties are referred to in this Determination as they were at first instance. Hence, Ms Monika Asiesiukiewicz is referred to as the Complainant and Helaro Ltd is referred to as the Respondent.Background:The Complainant commenced employment on the 27^th March 2014 as a Housekeeper and was promoted to the position of receptionist on the 13^th June 2016. Shortly after in August 2016 she started working in the IFSC Apartments. The company is part of a group of hotels with a number of properties. The IFSC Apartments where the Complainant was predominantly based at the time was part of the group. The IFSC Apartments company went into liquidation and the Liquidator was appointed on the 30^th June 2020. The Complainant was offered alternative employment with the Respondent which she declined, and she sought to be paid redundancy.

Complainant’s submission:

It is the Complainant’s submission that she was constructively dismissed when the office she worked in that ran apartment rentals closed down. The Complainant’s submitted that she was offered a position at one of the Respondent’s hotels in a different location, but she did not feel comfortable working there, so she asked for a redundancy payment. The Respondent refused to pay same. It is the Complainant’s submission that the job that was offered was different to the job she held and was further away from her home. It was her submission that she had in the past covered a shift in the hotel on the odd occasion, so she knew the work was different. It was her submission that working in a hotel is much busier and more stressful as guests are always coming to the desk and that it involved additional duties. The Complainant also submitted that there would be additional cost both in monetary terms and time, in respect of travelling to work in the new location. It was her submission that she currently lives in East Wall and could walk to work in ten minutes, the position she was being offered was in Temple Bar and it would take her an additional thirty minutes to walk there. The Complainant submitted that the position on offer was not the same as the one she had, and the working conditions were not the same therefore she was entitled to turn it down and be paid redundancy.

Respondent’s Submission:The Complainant started work with the Respondent as a Housekeeper and on the 13^th June 2016 was promoted to the position of Receptionist. In both her roles the Complainant worked across many of the Respondent’s properties in Dublin City Centre and near Dublin Airport. It was the Respondent’s submission that the Complainant started working in the IFSC apartments on the 30^th March 2017. However, she continued to provide cover in other Hotels and apartments. The Respondent drew the Court’s attention to rosters attached to their submission which showed the various locations that the Complainant worked in. In particular the Court’ attention was drawn to the fact that she had trained as a receptionist in the Kildare street hotel. It is the Respondent’s submission that the Complainant worked on average a couple of times a month in various hotels while she was based in the IFSC Apartments. Due to the centralising of a number of roles and functions the Respondent had no choice but to put a number of roles at risk of redundancy. The Complainant was invited to and attended an At Risk Meeting on the 13^th May 2019 and Consultation Meetings on the 24^th and the 30^th May 2019. The Complainant was also issued with an At Risk letter and a Redundancy Business case where the reasons for the redundancy were clearly explained. The Complainant was advised that other receptionist roles were available, and she was asked if she had a preference in respect of which Hotel she would move to. When the Complainant did not express a preference, she was given an option of Handel’s Hotel or the Temple Lane Hotel both of which are located in Temple bar. It is the Respondent’s submission that the distance she was being asked to move was at the most 3km and that this could not be considered to be unreasonable. In respect of the role on offer it was as a receptionist in one of the hotels. The job description of a receptionist in the IFSC Apartments was the same as the job description in the hotels. The Complainant had trained as a receptionist in a hotel so there was no difference between the role she held and the role she was being offered bearing in mind that she regularly covered shift in the group hotels. The IFSC location closed on the 16^th June 2019. The Complainant refused to accept either of the posts that she had been offered, stating she did not want to work in a hotel and requested that she be removed from the roster. The Respondent emailed the Complainant asking her to re-consider her request to be removed from the roster and asking if she did not want to do so, to confirm her resignation in writing. By email of the 21^st June 2019 the Complainant confirmed that she was resigning from the role of receptionist.

Applicable law

The Redundancy Payments Act 1967 states as follows;

• Section 15. Disentitlement to redundancy payment for refusal to accept alternative employment
  (1) An employee […] shall not be entitled to a redundancy payment if […]
  (a) his employer has offered to renew that employee's contract of employment or to re-engage him under a new contract of employment,
  (b) the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed and as to the other terms and conditions of his employment would not differ from the corresponding provisions of the contract in force immediately before [the termination of his contract],
  (c) the renewal or re-engagement would take effect on or before the date of [the termination of his contract], and
  (d) he has unreasonably refused the offer.
  (2) An employee […] shall not be entitled to a redundancy payment if […]
  (a) his employer has made to him in writing an offer to renew the employee's contract of employment or to re-engage him under a new contract of employment,
  (b) the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed and as to the other terms and conditions of his employment would differ wholly or in part from the corresponding provisions of his contract in force immediately before [the termination of his contract].
  (c) the offer constitutes an offer of suitable employment in relation to the employee,
  (d) the renewal or re-engagement would take effect not later than four weeks after the date of [the termination of his contract], and
  (e) he has unreasonably refused the offer.
  (2A) Where an employee who has been offered suitable employment and has carried out, for a period of not more than four weeks, the duties of that employment, refuses the offer, the temporary acceptance of that employment shall not solely constitute an unreasonable refusal for the purposes of this section.

While the Court notes the parties differ on when the Complainant commenced in the IFSC Apartments with the Complainant indicating August 2016 and the Respondent March 2017. It is not in dispute that is where she was working in 2019. While the Complainant stated that the job she was being offered was different to what she was previously doing she did not dispute the job description that was put forward by the Respondent or that she was trained in the Kildare street hotel as a receptionist. The Complainant also stated that she only occasionally worked in the hotels to provide cover but that did not tally with the rosters provided by the Respondent which showed her working in various hotels on a regular basis. Having considered the submissions of both parties the Court finds that the job she was offered as a receptionist in a hotel did not differ from the job she had previously worked at, which was a receptionist in the IFSC Apartments and in various of the Respondent’s Hotels. The second issue raised by the Complainant was the fact that hotels were based in Temple bar and it would take her longer to walk to work. The Respondent submitted and it was not disputed that the difference was approximately 3km. The Court having considered the written submissions and the oral submissions on the day of the hearing find that the offer of alternative employment was a suitable offer. The Court determines that as the role she was offered was very similar in nature to the role she previously held and that the location was only 3km further away from her home that it was not reasonable in all the circumstances for the Complainant to refuse the role.

The decision of the Adjudication Officer is overturned . The appeal is upheld.

The Court so determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
SL	______________________
July 2021	Deputy Chairman