Complainant

Respondent

Anonymised Parties

An Office Administrator

An Employer

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint    seeking adjudication by the Workplace Relations Commission under Section 39    of the Redundancy Payments Act, 1967

CA-00010775-001

11/04/2017

The Complainant is seeking her entitlement to a redundancy   lump sum payment. The Respondent denies the claim stating that the Complainant   was offered alternative employment and she turned that offer down.

The Complainant commenced employment with the Respondent   on 5 January 2015 as an Office Administrator at a warehouse doing typical   office type duties until her employment came to an end on 15 March 2017. The   Complainant claims that there were two other staff members working in the warehouse   at the time. She said that she reported directly to Mr. A, a director with   the Respondent.

The Complainant claims that she did not get a contract of   employment or a statement of the terms and conditions of employment. The   Complainant said that she worked 40 hours per week, Monday to Friday, and her   gross weekly wage was €423.08.

The Complainant claims that on Friday, 3 March 2017, she   and the other two staff were given verbal notice of termination of their   employment by Mr. A. They were told   that the warehouse would close as of Wednesday 15 March 2017. She said that   she asked Mr. A if she would be getting redundancy as she has over two years’   service and she claims that he said he would honour whatever she was owed and   she would get a good reference too if she needed one.

She claims that the following Monday, 6 March 2017, Mr. A   approached her and offered her three days employment at Head Office at another   location about 15 minutes away. She said that three days was not sufficient   and would not take up the offer. She said that she again mentioned the issue   of her redundancy. However, this time she claims that Mr. A said that as he   had offered her alternative work and she had turned that down she would not   be entitled to redundancy. She claims that they had an exchange of words over   who was correct on the issue of redundancy entitlement and Mr. A said that he   would check it out and come back to her.

The Complainant said that Mr. A returned to the office the   following Wednesday, 8 March 2017, and again offered her three days’ work,   which she again turned down. Then, she claimed, he said that he was in a   position to offer her a five day working week at Head Office. She claimed   that she asked Mr. A to put the offer in writing and he asked her in return if   she did not trust him.

The Complainant said that Mr. A arrived at the office on   the morning of 15 March 2017 and asked if the Complainant was ready to go   over to Head Office either that day or the following day to which she replied   that she was working out her notice and was finishing up that day. She told   him that she never got her offer of five days in writing as she had asked.   She claims that Mr. A said he offered her the five day working week and that   she could have written that up herself and signed it. The Complainant claims that   Mr. A said that she had refused the offer of employment, whereas her reply was   that she did not get an offer of employment.

The Complainant said that Mr. A got annoyed and he left   the office. She claims that on that evening after work she contacted Mr. A   again to seek assurance that her redundancy would be paid and she maintains   that he again reiterated that no redundancy would be paid as she had refused   work. She claims that she waited for her P45 and final pay and the P45 was   never sent out to her.

The Respondent is an Irish company that provides, amongst   other services, a management warehousing facility for third parties. The Respondent   claims that the Complainant was employed as an office administrator at a   warehouse facility for over two years.

The Respondent detailed a particular complex legal dispute   between two other external parties that it became entangled in, due to the services   it had provided to them. This resulted in the Respondent receiving a cash   award in the High Court in exchange for closing its warehousing facility, and   the warehousing business effectively been returned to one of the external   parties involved in the legal dispute.

The Respondent does not dispute that originally the   Complainant, along with two other employees, was advised that the facility   was closing. However, as the Complainant had worked with the Respondent for   some time and with Mr. A in a number of other companies in the past, it   decided to offer her three days employment in a similar role at Head Office.   It claims that her terms and conditions would be next to identical to her   role in the warehouse, except for her location. However, it claims that she   would now be closer to her home by 15 minutes and in an office where she had   provided cover for on a number of occasions in the past. The Respondent   accepts that the Complainant wanted five days and having considered this further   it decided it would really like to keep her on and accordingly, offered her   the five days’ work at Head Office.

The Respondent claims that the Complainant would normally do   all of Mr. A’s paperwork, and only recently she was tasked to ensure that   everyone working with the Respondent had a contract of employment. It claims   that when Mr. A asked the Complainant to write up the offer of the five days for   the job at Head Office herself that that would be in line with how the   Complainant and Mr. A would have interacted over the years. The Respondent maintains   that it would have thought that it was clear that there was five days’ work   at Head Office for the Complainant and if she required that to be put in   writing that she could have prepared the necessary documentation herself and Mr.   A would have sanctioned same.

The Respondent claims that the Complainant turned down the   offer of employment with it and chose to leave because she had been offered another   job and subsequently started with immediate effect. It claims that the job   offered was with one of the parties that were involved in the High Court   legal battle that the Respondent found itself indirectly involved in and in   effect which closed its warehouse facility. The Respondent claims that the   Complainant would have remained doing the same actual administrative job that   she performed with the Respondent in her new employment.

The Respondent gave evidence that upon the Complainant   leaving its employment it had to take on an additional office administrator on   a five day week to work at its Head Office doing a similar job to the one the   Complainant was offered.

The Respondent maintains that the Complainant was offered the   very same type of employment with the same pay and conditions at Head Office   as she had for the two years previous in the warehouse facility and she had   worked at Head Office many times, as cover for absent work colleagues, during   the previous two years.

The Relevant Law

Section 15 (1) of the Redundancy Payments Acts, 1967-2012   states that

An employee who has received the notice required by   section 17 shall not be entitled to a redundancy payment if in the period of   two weeks ending on the date of dismissal,

(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 his dismissal,

(c)    the   renewal or re-engagement would take effect on or before the date of   dismissal, and

(d)   he   has unreasonably refused the offer.

Findings and   Conclusions

It appears to me there are a number of aspects that I must   carefully consider in coming to a decision on this case.  The most   important by far is whether there was an offer of alternative employment and   secondly should I find that there was an offer, did it constitute as a   ‘suitable’ offer and therefore whether the Complainant’s actions were   ‘unreasonable’ as per Section 15(1)(d) of the Acts.

As noted above both parties have agreed that the   Complainant was given verbal notice that the Respondent’s warehouse was to   close down inside two weeks of that notice. I note that Mr A. approached the   Complainant on the next available working day to offer her a three day week at   Head Office to which she said that three days was not sufficient, that she   wanted five days and that she, in evidence, said that she turned down the   offer. I am told that two working days later Mr. A returned again and offered   the Complainant what she had wanted, five working days. However, she claims   that she asked for the offer to be put in writing.

I note where the Complainant claims that she did not   accept the offer as it was not put in writing. I note the professional   relationship the Complainant had with Mr. A, where she looked after all his   paperwork for a number of years while working with the Respondent. I also   note that she had a specific task of checking up on whom, within the   Respondent, had and did not have contracts of employment. I note that she   identified herself as not having a contract of employment or a statement of   the terms and conditions of employment. Therefore, I assume that when she originally   started work with the Respondent she took up the job on foot of a loose   arrangement similar to the offer of alternative employment in this instance.   Notwithstanding, I am satisfied that the Complainant recognised that Mr. A   made an offer of alternative employment on two different dates, namely on 6   March 2017 and 8 March 2017. I am equally satisfied that having been offered   alternative employment, albeit not in writing, she chose to turn down that   offer.

Now I will look at whether the offer of alternative   employment was a suitable offer. As noted above the alternative employment   was to be at Head Office where the Complainant had worked from time to time   throughout the previous two years. I note that there was no additional travelling   involved, Head Office was actually closer to her home and it was more of a convenience   than an inconvenience. No evidence was presented to suggest that the move to   Head Office was going to cause the Complainant any inconvenience what so ever.

I am satisfied that there was no evidence to suggest there   would be any change to her conditions of employment or her rate of pay and, it   would appear, that the job offered was similar if not identical to the type   of work she did in the warehouse.

I am satisfied that with some minor adjustments to her   workplace, the Respondent’s offer of alternative employment was a reasonable   offer, and her decision to refuse that offer on the basis of the evidence   presented to me was ‘unreasonable’ as provided for in Section 15(1)(d).

In my view, the Complainant’s reasons for rejecting the   offer were insubstantial and without merit.  There is some validity in the   criticism that the offer was not made in writing and maybe the delay in the final   offer being made. However, and without doubt, these are of a minor nature in   the context of the overall situation and I am satisfied that the Respondent   appeared to be doing its upmost to keep the Complainant in its employment.

Accordingly, I conclude that the Complainant has   unreasonably refused the offer of alternative employment and therefore, she   is not entitled to a statutory redundancy payment under the Redundancy   Payments Acts.

As set out above, I find that the circumstances in   relation to the termination of the Complainant’s employment did not   constitute a redundancy situation and that consequently the claim for a statutory   redundancy payment under the Redundancy Payments Acts fails.

Redundancy – change of work location - reasonable offer of alternative employment