EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
EMPLOYEE - claimant UD893/2012
EMPLOYER - respondent
UNFAIR DISMISSALS ACTS, 1977 TO 2007
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr N. Russell
Members: Mr J. Browne
Mr A. Butler
heard this claim at Carlow on the 3 December 2013 and the 20 January 2014
Claimant(s) : Mr. Justin Cody, James Cody & Sons, Solicitors, Centaur Street, Co Carlow
Respondent(s) : Mr Liam Barton, Insight HR, 23 Danville Business Park, Ring Road, Kilkenny
The determination of the Tribunal was as follows:-
The claimant’s case was that the Office in which she worked in Carlow, having closed, her job was redundant and that the alternative position provided to her was not suitable so that it was reasonable for her to decline the position.
The respondent’s position was that the claimant’s role was not made redundant but that she was simply required to relocate to Waterford and do her job from there. The respondent relied on the clause in the claimant’s contract dated 25th October 1999 which read:-
“The Company reserves the right to relocate and or establish operations in Ireland and the UK and you may be required to transfer to another Department and/or place of work. Before implementing any changes we will consult you and consider any reasonable objections that you may have to the proposed changes”.
The contract stated the claimant’s position to be area manager Carlow. The evidence before the Tribunal was that the claimant was located exclusively in Carlow until these offices closed.
The Contract appears to be silent as to the actual place of employment and simply states that “the Company is based in Urlingford with depots at various locations in Ireland”.
The Tribunal is satisfied from the claimant’s job designation as area manager Carlow and the fact that she was, at the material times, based in the Carlow office that Carlow was her place of employment.
It is accepted by the Tribunal that the respondent was entitled to re-organise its operation in the economic circumstances that existed and, further, to close the Carlow office as part of this process.
In seeking to avail of the geographical mobility clause in the claimant’s contract, the respondent company was required to act reasonably and responsibly. The Tribunal is of the view that the respondent company did not discharge this onus in circumstances where it sought to relocate the claimant without the consultation provided for in the clause itself, without considering any reasonable objections (or suggestions) that the claimant might have and in circumstances where any such move was to be on terms that were fundamentally different to those already enjoyed by the claimant. She was expected to perform her new duties in changed and far more stressful circumstances. Specifically, the claimant was expected to relocate in circumstances where she was to be paid less for the same work.
The Tribunal is satisfied that the respondent company in paying overtime to the claimant had recognised that she could not do all of her work in a 40 hour week. The claimant was asked to relocate in circumstances where her pay would no longer reflect the hours worked by her. In the circumstances, it was reasonable for the claimant not to relocate. The clause relied upon by the respondent company clearly recognises that the claimant might reasonably refuse to relocate.
Section 7 (2) (a) of the Redundancy Act 1967 (as amended by Section 4 of the Redundancy Payments Act 1971) provides that an employee shall be taken to be dismissed by reason of redundancy where that dismissal is attributable to:
“the fact that his employer has ceased, or intends to cease, to carry on business for the purposes for which the employee was employed by him or has ceased or intends to cease, to carry on that business in the place where the employee was so employed”
In all of the circumstances the claimant was entitled by virtue of the respondent company’s conduct to terminate her employment pursuant to Section 9 (1) (c) of the Redundancy Payments Act 1967 and the consequent dismissal, was the result of a redundancy situation. The claimant is entitled to a redundancy lump sum based on the following criteria:-
Date of Commencement: 25 October 1999
Date of Termination: 31 May 2012
Gross Weekly Pay: €540.00
This award is made subject to the appellant having been in insurable employment under the Social Welfare Acts during the relevant period.
The claim under the Unfair Dismissals Act, 1977 to 2007 was withdrawn by the claimant.
Sealed with the Seal of the
Employment Appeals Tribunal