FULL RECOMMENDATION
REDUNDANCY PAYMENTS ACTS, 1967 TO 2014 PARTIES : CINDERS LIMITED (REPRESENTED BY TOM SMYTH & ASSOCIATES) - AND - CELINA BYRNE (REPRESENTED BY JOHN O' NEILL) DIVISION : Chairman: Mr Haugh Employer Member: Ms Connolly Worker Member: Ms Treacy |
1. An appeal of an Adjudication Officer's Decision no. ADJ-00011676.
BACKGROUND:
2. The Employer appealed the Decision of the Adjudication Officer to the Labour Court on 18 June 2018 in accordance with the Redundancy Payments Acts 1967 to 2014. A Labour Court hearing took place on 3 August 2018. The following is the Determination of the Court:
DETERMINATION:
This matter came before the Court by way of an appeal brought on behalf of Cinders Limited T/A Cinders (‘the Respondent’) against a decision of an Adjudication Officer (ADJ-00011676, dated 10 May 2018) under the Redundancy Payments Act 1967 (‘the Act’). The Notice of Appeal was received by the Court on 18 June 2018. The Court heard the appeal in Dublin on 3 August 2018. The Court heard evidence from Ms Celina Byrne (‘the Complainant’) and from Ms Catherine Flood, a Director of the Respondent company.
The issue between the parties is a net one. The Respondent retails ladies’ footwear via a mixture of concessions and stand-alone stores. The Complainant was employed by the Respondent as a sales assistant for some twenty years, between June 1997 and October 2017. She worked for most of that period in the Respondent’s shop in the Merrion Centre in Dublin 4. For a number of years prior to 2017, that outlet experienced an increasing decline in sales. The Respondent took a decision, therefore, to close it down in or around August 2017. It is common case that Ms Flood informed the Complainant on 4 September 2017 that this decision had been taken. She was also informed on that occasion that she was a valued employee and that an alternative position would be identified for her within the wider business.
Coincidentally, in or around that time the Respondent was at an advanced stage of negotiating a concession arrangement within a large retailer located in the Blanchardstown Centre. Ms Flood, therefore, offered the Complainant the option of taking up employment in that location. She invited the Complainant to visit the Blanchardstown Centre and revert. The Complainant availed herself of that opportunity following which she informed Ms Flood that she was not prepared to accept a move to Blanchardstown. The Complainant’s evidence to the Court was that her travelling time to and from work would have increased. However, her principal reason for refusing that offer of alternative employment was she had been used to working in a boutique-type environment and working in a concession arrangement would have been very different, from her perspective.
Ms Flood then offered the Complainant two further options: a move to the Respondent’s existing concession in the St Stephen’s Green Centre or to its stand-alone shop in Wicklow Street, Dublin 2. Ms Flood – in an email to the Complainant, dated 24 September 2017 – set out the additional offers of alternative employment as follows:
- “We have offered you a Managerial position in Blanchardstown, which you have now declined. You are a valued member of the Cinders team and for this reason we would try to reallocate you in either St Stephen’s Green SC or Wicklow Street (though the latter might be temporary as we might have to close this shop also to stem losses).”
The Law
Section 15 of the Act provides:
- “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.
- (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.
(2B) Where—- (a) an employee's remuneration is reduced substantially but not to less than one-half of his normal weekly remuneration, or his hours of work are reduced substantially but not to less than one-half of his normal weekly hours, and
(b) the employee temporarily accepts the reduction in remuneration or hours of work and indicates his acceptance to his employer, such a temporary acceptance for a period not exceeding 52 weeks shall not be taken to be an acceptance by the employee of an offer of suitable employment in relation to him.
- (a) his employer has offered to renew that employee's contract of employment or to re-engage him under a new contract of employment,
Discussion and Decision
Essentially, in determining the within appeal, the Court is required to consider two issues: (i) the suitability of the offers of alternative employment made by Ms Flood on behalf of the Respondent to the Complainant; and (ii) whether the Complainant’s decision to refuse each of those offers was reasonable in all the circumstances. InCambridge & District Co-operative Society Ltd v Ruse[1993] I.R.L.R. 156 the English EAT, when considering the similarly worded provisions of the British legislation, said, at page 158, that the question of “the suitability of the employment is an objective matter, whereas the reasonableness of the employee's refusal depends on factors personal to him and is a subjective matter to be considered from the employee's point of view”.
The Court was impressed with Ms Flood’s evidence and, in particular, accepts that she acted at all times in a bone fide manner in her attempts to retain the Complainant in the Respondent’s employment by endeavouring to offer her a number of options to do so. To that extent, the Court determines that the Respondent, from an objective perspective, satisfies the first leg of the test adumbrated by the English EAT inCambridge.
However, having considered the Complainant’s evidence, the Court is equally of the view that the change involved in moving from working in a stand-alone shop – which is what the Complainant had been doing for some twenty years as an employee of the Respondent – to working in a concession arrangement within a large department-type store environment is a change of such magnitude, when considered from the Complainant’s subjective perspective, that the Court has to find that her refusal to accept either the Blanchardstown or St Stephen’s Green options was not unreasonable.
However, the Court finds this not to be the case in relation to her refusal to accept the offer of employment at the Wicklow Street store. Ms Flood was very candid with the Complainant when she outlined the actual trading situation in that store at the time. She did not indicate that that store would inevitably cease to operate - nor was it reasonable for the Complainant to draw any such inference from Ms Flood’s email of 24 September 2017, cited earlier. The Complainant, by her own evidence, confirmed that there was no significant difference between the working environment she would have enjoyed in Wicklow Street and that she had experienced for the previous twenty or so years of her working relationship with the Respondent. She also told the Court that she would not have suffered any disadvantage with regards to her commute between her home and place of work had she accepted this option. In all the circumstances, therefore, the Court finds that the Complainant’s refusal to accept the option of working in the Respondent’s Wicklow Street store was unreasonable.
Accordingly, the appeal succeeds and the decision of the Adjudication Officer is set aside.
The Court so determines.
Signed on behalf of the Labour Court
Alan Haugh
CR______________________
8 August, 2018Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.