ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00008590
Parties:
| Complainant | Respondent |
Anonymised Parties | A Building Manager | A Licensed Security Provider |
Complaint(s):
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-00011202-001 | 09/05/2017 |
Date of Adjudication Hearing: 21/02/2018
Workplace Relations Commission Adjudication Officer: Roger McGrath
Procedure:
In accordance with Section 39 of the Redundancy Payments Acts 1967 - 2014following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The complainant commenced employment with the respondent, a licensed security provider, on 28th February 2008, as a security guard. At the date his employment ended, 7th April 2017, he was being paid €772.50 gross per week. The complainant lodged a complaint with the WRC on 9th May 2017, under Section 39 of the Redundancy Payments Act, 1967. The complaint was subject of two Adjudication Hearings, the first on 10th January 2018 and the second on 21st February 2018. |
Summary of Complainant’s Case:
The complainant provided a detailed written submission. The complainant submits that on 13th January 2017 he was told by the contracts manager that he would no longer be required to report for duty as Building Manager at the location where he had worked for a number of years (Building A) and that he would have to take up a role working as a security officer in a carpark, in the same building, on a forty hour per week basis. On the 18th January 2017, the complainant contacted the respondent's HR section looking for a meeting to clarify his position. He did not receive a response from HR and on 25th January 2017 he was asked to attend an informal meeting with the contracts manager. At this meeting, according to the complainant, the contracts manager told him that he must accept his job as Building Manager was gone and that he was being moved to the upper carpark of the facility to work as a security officer. He was also told that if he didn't make this move there was no option but to let him go. A meeting between the complainant, the contracts manager and HR took place on 26th January 2017. At this meeting, it is submitted that the complainant was told he would have to accept the new role as car park security man or would be let go. The complainant pointed out that the he should either be made redundant or be offered a similar role to the one he had held. According to the complainant, the contracts manager replied by saying, "[company name] doesn't do redundancies". The complainant suggested that he be put on four weeks’ garden leave to facilitate the respondent considering alternative roles. By letter of 27th January the respondent proposed three roles for the complainant to consider. These roles were, in the complainant's view materially different from his Building Manager role and it was apparent that his Supervisor's Allowance was also gone. On foot of the above letter the complainant took legal advice and wrote to the respondent on 10th February stating that the alternatives being offered were not suitable and to provide other alternative roles.
A meeting between the complainant, the contracts manager and HR took place on 24th February at which two alternative roles were discussed. Because of difference between the proposed roles and the old role the complainant deemed them unsuitable. There was some discussion on a possible redundancy but the complainant submits that the respondent's attitude was either take one of the, what the complainant believed to be unsuitable, roles, or he would be let go without a redundancy payment. The complainant requested another week to think things over, however, he was told that after that if he did not accept the security officer role or the other role offered, in Building X, which did not carry his allowance, he would be let go. The complainant was very stressed over this with rent and bills to pay and the loss of a role he enjoyed very much. On 6th March 2017, the respondent wrote to the complainant summarising the meeting of 24th February 2017. The letter included a reference to buying out the complainant's Supervisor's Allowance. Another meeting took place on 8th March 2017 where the complainant submits the respondent said that the role being offered in Building X could be "moulded" to be an identical match of the complainant's original role. A job specification for the proposed role was issued to the complainant on 9th March 2017. The complainant declined this role on 10th March stating that it was "significantly different from my role as bulling manager in Building A." On 16th March 2017, the respondent wrote to the complainant asking him to review his decision and to outline the differences he perceived between the two roles. On 21st March 2017, the compliant wrote back to the respondent with a detailed grievance. No response was received from the respondent and the complainant wrote to the respondent on 7th April resigning from his employment. On 20th April 2017, the respondent wrote to the complainant acknowledging his resignation. In direct evidence the complainant stated that he believed the roles being offered to him were security officer roles and not management roles. He stated that it was a big thing for a security officer to be promoted to a Building Manager and he did not want to go back to being a security officer. The complainant pointed out that at the hearing that his motivation was to stay working with the respondent. All he wanted was a similar role in a Building Manager capacity that carried the same status and duties as his role up to January 2017.
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Summary of Respondent’s Case:
The respondent provided a detailed written submission. The respondent's position is that he Redundancy Payment Scheme can only apply where a genuine redundancy exists and that at the time of the complainant's resignation in April 2017 no such genuine redundancy existed. The respondent is a licensed security provider of static guarding services to customers nationwide, with more than 1,000 security officers in the greater Dublin area. The complainant commenced employment with the respondent in 2008 in the role of security officer in the Dublin area. In January 2010, the complainant was appointed to the role of Building Manager in Building A. This role carried a Supervisor's allowance of €75.00 per week. In January 2017, the client requested changes to be made in the operation of the contract, resulting in a significant reduction in weekly hours required for security from 212.5 hours to 94.5 hours. Because of this change there remained only a role for a Security Officer, the role of Building Manager was no longer required. The Contracts Manager for the respondent met with the complainant in January to explain the situation and a letter followed clarifying matters discussed. The respondent's Business Partner wrote to the complainant on 27th January enclosing information on alternative employment options and the complainant was given four weeks, fully paid, to consider these options. The respondent submits that whereas this four-week period is referred to as a "notice period" in the documentation it in fact refers to the paid period provided to the complainant to consider alternative options and not a lay-off/short-time period. The letter of 27th January goes on to indicate that the complainant hours would be between 40-48 hours per week and that the Supervisor's Allowance he had been in receipt of in his previous role would continue. The complainant's solicitor wrote to the respondent by letter dated 10th February 2017, describing the complainant's dissatisfaction with the alternative roles set out in the Respondent's letter of 27th January. A meeting took place on 6th March between the respondent's HR Business Partner and the complainant to discuss a new role in Building X. The four-week period to consider roles was extended to 10th March 2017. The parties met again on 9th March 2017 to consider alternative options, as set out in a letter to the complainant dated 8th March 2017. A detailed job specification of the new role being offered to the compliant in Building X was included in this letter. The complainant refused to accept the new role which had been offered to him and resigned in April. The respondent submits that, despite accepted communications difficulties, several suitable roles were offered to the complainant but he turned them down. The complainant was not, the respondent submits, either laid-off or put on short-time working. Although the complainant maintained that the roles offered to him were unsuitable, he failed to identify the reasons he believed this to be so. The respondent submits that it had offered suitable alternative employment and had agreed to be flexible with working hours to take account of parking difficulties that might be experienced by the complainant in the proposed new role. The respondent contends that the complainant did not identify any substantial differences between the role he had and the role he was being offered, nor was there any suggestion that his role was or might become redundant. The complainant, according to the respondent, terminated his employment of his own violation; his role was not made redundant at any time and the respondent contends that the complainant cannot, accordingly, recover under the Redundancy Payments, legislation.
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Findings and Conclusions:
Section 15 of the Act states: (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. In this case the respondent has argued that the complainant was offered suitable alternative employment and as such is not entitled to a redundancy payment. The complainant maintains that the jobs he was offered were not suitable in that they differed greatly from his original job. I found the complainant's evidence credible and his earnestness compelling throughout both hearings. There is no doubt in his mind that he was unfairly treated by his employer during this episode. I believe him when he says that all he wanted to do was continue his employment with the respondent in a similar role to that which he enjoyed up to January 2017 Initially, the matter was not handled well by the respondent. The complainant was told by the contracts manager on 13th January 2017, that his job as Building Manager was ending and he would have to take a security officer's role;a letter from respondent to complainant dated 27th January 2017 , stated " we are in a position to offer you similar roles that should reflect your existing terms and conditions of employment," and outlines that if he took the new role in his current location he would receive between 40-48 hours work per week and keep his weekly allowance of €75.00, however, the letter does not give any comfort in relation to maintenance of his grade as a Building Manager. It would seem to me that it was only when the compliant mentioned the requirements of the Redundancy Payments Act to the respondent were matters dealt with in a more appropriate manner, but this was well after he had been told his post was gone. Although a number of alternatives were offered to the complainant between January and April 2017, the complainant never accepted any as being suitable. A lot of discussion took place on the merits of a role in Building X. The respondent believed this to be most suitable while the complainant believed it to be unsuitable. In his grievance letter of the 23rd March 2017, the complainant summarised the situation: "While I do agree that no two roles are an identical match and different sites carry different requirements, the job description for the Building X is vastly different. The duties outlined are 70% security guard with 30% ad-hoc facility assistant jobs. My role as Building Manager in (original location) consist of 70% Building Management with sole responsibility and authority for all duties that accompany this, with 20% general security and 10% ad-hoc from the tenants. Also, the title is not consistent with my previous role, therefore I do not believe it to be a reasonable alternative role." Having reviewed and compared the job descriptions for the Building Manager in Building A and the Security Manager in Building X and I agree that the proposed role as Security Manager in Building X is significantly different to the role he had had in as Building Manager in Building A. The most significant difference between the two job descriptions is that in the old one the complainant's main duties state that he is responsible for ensuring the "security team" carry out their duties whereas the new job description the main duties are actually carried out by the individual. Other differences include the loss of a parking space and actual location. I find that the complainant was not offered suitable alternative employment and as such was made redundant.
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Decision:
Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act. I find that the complainant was dismissed for reasons of redundancy and that he is entitled to a statutory redundancy payment based on the following: Date of Commencement 28th February 2008; Date of Termination 7th April 2017; Gross Pay Weekly €600.00 (being the maximum under the Act). Any award under the Redundancy Payments Act is subject to the complainant having been in insurable employment for the relevant period under the Social Welfare Acts. I order the respondent to pay the complainant his statutory entitlements as per the terms of the Redundancy Payments Act.
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Dated: 20.6.18
Workplace Relations Commission Adjudication Officer: Roger McGrath
Key Words:
Suitable alternative employment, security guard, building manager |