ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00010963
| Complainant | Respondent |
Anonymised Parties | A cleaning operative | A contract cleaning company |
Representatives |
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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-00014682-001 | 29/09/2017 |
Date of Adjudication Hearing: 15/01/2018
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Procedure:
In accordance with Section 39 of the Redundancy Payments Acts 1967 – 2014,this complaint has been assigned to me by the Director General. I conducted a hearing on January 1st 2018 when I inquired into the issues and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Neither party was represented at the hearing. The complainant attended with a friend and, for the respondent, the Head of HR attended.
Background:
This claim under the Redundancy Payments Acts arises from the fact that the complainant would not accept a change her place of work from Portlaoise to Roscrea, a distance of 48 kilometres. |
Summary of Complainant’s Case:
When she started working with the company in April 2009, the complainant was assigned to clean an office building in Portlaoise. The respondent then got the contract to clean the public toilets in the town and she was given this work also. At one point, she cleaned the government buildings as well as the public toilets, giving her a total of 34 hours per week. When she finished up in August 2017, she only worked on the public toilets and she worked 18 hours per week. Her hourly rate of pay was €10.05. On June 29th 2017, the HR administrator for the respondent company wrote to the complainant and two other employees to let them know that Laois County Council had decided to temporarily close the public toilets due to health and safety issues. On August 10th, the HR administrator wrote again to let them know that the decision was permanent and the contract to clean the toilets was terminated. The letter states: “We do not like to lose staff with long length of service and would prefer to look for suitable alternative work for you first. So we will be placing you on layoff on the 9th August 2017. If you feel we are not going to be able to find you alternative work after 4 weeks’ layoff you can apply for redundancy through the attached RP9.” The complainant received four weeks’ pay in lieu of notice. On September 5th 2017, she completed part B of the RP9, and claimed a redundancy payment in respect of her service with the respondent from April 24th 2009 until August 9th 2017. The HR administrator sent a counter notice on September 11th, offering the complainant 12.5 hours per week cleaning the Garda Station in Roscrea. At the hearing, it emerged that the 12.5 hours was spread over six days, from Monday to Saturday. The complainant does not own a car. If she was to take up the alternative role, she would have to travel for 30 minutes each way by bus, at a cost of €5.70 each way. Therefore, to earn €131.25 per week, the complaint would have to spend six hours travelling and pay €68.40 in bus fares. For this reason, she argues that the offer of 12.5 hours’ work in Roscrea is not a suitable alternative role. On this basis, her view is that her job is redundant and she claims that she is entitled to a redundancy payment. |
Summary of Respondent’s Case:
Having placed her on temporary layoff due to the closure of the public toilets in Portlaoise, the respondent wrote to the complainant on September 19th 2017, with an offer of a job comprising 70% of her previous hours, cleaning the Garda Station in Roscrea. At the hearing, the head of HR said that, in his view, this was a reasonable alternative job offer, as Roscrea is a 35 minute drive from Portlaoise and there is a direct bus route. He also said that the company would have looked for additional hours so that the complainant would be back up to her previous hours as soon as possible. Many of the company’s employees travelled from places like Portlaoise to Dublin every day – a longer journey than the distance from Portlaoise to Roscrea. On this basis, the claim for redundancy submitted by the complainant on part B of the RP9 on September 5th 2017, was rejected. |
Findings and Conclusions:
The circumstances in which an employee may be entitled to a redundancy payment are set out at section 7(2) of the Redundancy Payments Act 1967, as amended: “…an employee who is dismissed shall be taken to be dismissed by reason of redundancy if [for one or more reasons not related to the employee concerned] the dismissal is attributable wholly or mainly to – (a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of 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 or, (b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish…” The law therefore provides for circumstances in which a redundancy arises when an employer ceases carrying on a business in a place where an employee was employed. A contract of employment may provide that an employee can be required to re-locate, but in the case of this complainant, no such contractual provision existed. In the English EAT case of Bass Leisure v Thomas [1994] IRLR 104, the Tribunal ruled that, even in circumstances where a contract provided for an employee to be transferred to another location, this did not result in a claimant losing her right to a redundancy payment when she resigned due to being relocated 20 miles from where she had been working. In the case under consideration here, when the complainant was offered an alternative job for two hours a day for six days a week, it was reasonable for her to take account of the distance from Portlaoise, where she lives, to Roscrea, where she was being asked to work. As an employee who does not drive, on a relatively low salary, there was little merit in taking on the time and expense of a daily bus journey for a job comprising 12.5 hours per week when it would be easy to find a cleaning job in Portlaoise. It is my view that the job offer set out in the letter of September 19th 2017 was not a reasonable alternative proposal and, on this basis, the complainant’s job was redundant. |
Decision:
Section 39 of the Redundancy Payments Acts 1967 – 2014 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
As I have found that the complainant’s job was redundant, I have decided that she is entitled to a statutory redundancy payment on the basis of her service set out on part B of the RP9, from 24th April 2009 until August 9th 2017. As her weekly pay may have varied over the 52 weeks prior to the termination of her employment, her weekly rate of pay is to be calculated in accordance section 16(2) of Schedule 3 of the Redundancy Payments Act 1967 - 2014. |
Dated: 1st May 2018
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Key Words:
Redundancy, relocation |