ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00026299
A Limited Co.
Alexander Ryan Ryans Solicitors
Fiona Egan Peninsula Group Limited
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967
Date of Adjudication Hearing: 24/02/2020
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly B.L.
In accordance with Section 39 of the Redundancy Payments Acts 1967following 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.
Summary of Complainant’s Case:
The Respondent closed its Dublin 14 premises, at which the Claimant worked. The premises were closed due to "lack of profitability & lease expiry" on the 2nd August 2019. In the period prior to this, the Respondent sought to consider alternatives to the redundancy but no suitable alternative was found and the Claimant was dismissed by reason of redundancy on the 2nd August 2019. The Respondent wrote to the Claimant on the 12th August 2019 informing her that she was not entitled to redundancy as alternative work would be available at another premises in Barrow St. She was offered a right of appeal of its decision. The Claimant does not consider the alternative post, which was not formally offered to her prior to the cessation of her employment, as suitable for her given the distance from her home, particularly in light of her responsibilities as a guardian of her granddaughter whom she collects and cares for after school each day, and for the effects a smaller kitchen with reduced ventilation may have on her health and due to the fact that she would have to drive and there was no parking at the new venue. The Claimant wrote to the Respondent on the 16th August 2019 raising her concerns and appealing its decision to refuse redundancy. The appeal was unsuccessful. To date she has not been paid her redundancy.
Summary of Respondent’s Case:
The Complainant was employed by BH as a part-time Cook from the 3rd September 2001. In September 2014 the Respondent acquired BH and as result of the transfer the complainant’s employment automatically by operation of the law under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 transferred to the Respondent. The Respondent operates their business from two locations located at Beaumont Hospital and Barrow Street, Dublin 4. The complainant has brought a claim under The Redundancy Payments Act 1967. The Respondent wholly disputes the complaint brought by the complainant. The complainant was employed by the Respondent as a Cook in an Office Park in Dublin 14. She worked five days a week, totalling at 30 hours per week. Her agreed working days were Monday to Friday. Her working hours were 8am to 2pm. It is the Respondents case that since they acquired the business in the Office Park in September 2014, they were unable to operate profitably. The Respondent had signed a five year lease that was due to expire in August 2019. The Respondent was forced to make a commercial and business decision to close that premises but continues to operate in its other two locations in Barrow Street Dublin 4 and in Beaumont Hospital. The Respondent wrote to the complainant on the 25th June 2019 notifying her of the business situation and putting her on notice that her role could potentially be made redundant. The same letter invited the complainant to attend a meeting on the 3rd July which was to form part of a redundancy consultation process. The Respondent wrote to the complainant on the 10th July 2019 inviting her to a second consultation meeting on the 15th July 2019. As part of the Consultation process the Respondent offered what it considered to be a reasonable offer of alternative employment on the 3rd July, the 10th July and via letter on the 2nd August 2019. The Respondent offered the complainant a position of a Cook in its Barrow Street premises. There was to be no material change in the complainant’s terms and conditions including her remuneration. The Respondent submits that the complainant refused to even consider the position of alternative employment on offer and instead seemed intent of focusing on what were deemed to be the negatives. In terms of location, the complainant has based her claim and her entitlement to redundancy on the basis that the offer of alternative work was not a reasonable alternative in the circumstances, a fact that the Respondent denies. The complainant has also based her claim on the fact that she is not comfortable with driving the slightly extra distance and that she has the responsibility of collecting her grandchild after school during the week. Google maps calculates the distance from the complainant’s home address to the Respondents premises at Barrow Street, Dublin 4 to take approximately 21 minutes by car and is estimated to be 9.1km. Similarly, as calculated by Google maps, the commute from the complainant’s home address to the Respondents former premises in the Office Park is estimated to be 4.1km in distance and 11 minutes by car. The complainant also refers to the issue of collecting and caring for her granddaughter after school and believes if she was to continue her employment in the Barrow Street location this would interfere with her ability to continue this routine. The Respondent submits that the complainant has never engaged with the Respondent when offered to consider alternatives as the Respondent was at all times open to suggestions and negotiating alternative working hours to accommodate the complainant’s daily routine and her familial responsibilities. It is further submitted that the complainant would be concerned for her health had she moved to the Barrow Street location as she is under the mistaken impression that the premises is fitted with a smaller kitchen with a reduced ventilation system. However, the Respondent submits that the complainant has never been in attendance in the kitchen in the Barrow Street premises and is confused as to how the complainant would deem it to be an unfit place to work as she has never been in the building to the Respondents knowledge. As the Respondents had made what they believe to be a suitable offer of alternative employment made verbally on the 3rd July and 15th July, which was not accepted by the complainant during the consultation process, they wrote to the complainant on the 2nd August and asked the complainant again to reconsider the offer made to her. The Respondent specifically referred to discussing all options any training/adjustments (to working hours) etc in same letter. They wished to engage and explore all reasonable options open to the parties before a conclusion was reached. They urged the complainant to reconsider and contact them in this regard. Instead of continuing to engage with the Respondent, the complainant wrote to the Respondent on the 16th August 2019 stating she wished to appeal claiming that she had not been offered suitable alternative employment. It was clear at this stage that the complainant did not want to engage in relation to the alternative and had made up her mind that it was redundancy itself as opposed to alternative employment that she was willing to accept. The Respondent wrote to the complainant on the 3rd September 2019 in reply to her appeal reiterating the offer of suitable alternative employment at Barrow Street. The complainant’s legal representatives replied to the Respondent claiming that his client was not suitably accommodated and is entitled to a redundancy package. It is submitted that the Respondent replied and stated that under the Redundancy Payments Act 1967, the relocation would be deemed as a reasonable alternative as it was a difference of 8/9km in difference. The offer of suitable alternative employment was open to the complainant at that time and is indeed still on offer to the complainant in respect of their premises in Barrow Street.
The Respondent adopts the following submission in relation to the claim for a redundancy payment. Section 15 (2) of The Redundancy Payments Act 1967 provides that:
‘(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 to re-engage him under a new contract of employments,
(b)The provisions of the contract as renewed, or of the new contract, as to the capacity and place 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 the effect not later than four weeks after the date of termination of his contract,
(e)He has unreasonable refused the offer.’ It is submitted that if there was a dismissal (which is denied), the offer of continued employment under the same set terms and conditions at a location equidistant from the complainant’s home (5/6 km more to Barrow Street), is an offer of suitable employment. It is further submitted that the employee has unreasonably refused that offer. It was open to the employee to temporarily accept to move to the unit in Barrow Street (per section 15 2A)) in order to ascertain if her concerns were valid, without having done so the refusal to work in Barrow Street was unreasonable.
Findings and Conclusions:
Section 7(1) of the Redundancy Payments Acts 1967-2015 (herein, the Acts) provides: “An employee, if he is dismissed by his employer by reason of redundancy or laid off or kept on short time for a minimum period shall, subject to this Act, be entitled to a payment of monies which shall be known (and/or in this Act referred to) as a redundancy payment. . . “
Section 7(2)(a) of the Acts further provides that:
“. . . employee who is dismissed shall be taken to be dismissed by reason of redundancy, if for one or more of the reasons not related to the employee concerned the dismissal is attributed wholly or mainly to
(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purpose for which the employee was employed by him, or has ceased or intends to cease, or carry on that business in the place where the employee was so employed.”
Section 15(2) of the Acts provide a basis on which an employee is not entitled to a statutory redundancy payment:
“An employee who has received the notice required by section 17 shall not be entitled to redundancy payment if in the period of two weeks ending on the date of dismissal
a) His employer has made him in writing an offer to renew the employee’s contract of employment or 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 employment would differ wholly or in part from the corresponding provisions of his contract in force immediately before,
c) The offer constituting an offer of suitable employment in relation to the employee, and
d) The renewal or re-engagement would take effect not later than four weeks after the date of termination of his contract, and
e) He has unreasonably refused the offer”
The respondent offered the complainant a position in their Barrow Street premises on the same terms and conditions. However, whilst the terms and conditions of the role were the same, the commute to and from the work place was substantially different. The complainant used to drive five minutes to get to work and she could avail of free parking. To get to the Barrow Street premises would require her taking two buses as there was no free parking available. She is 65 years of age and isn’t in the best of health. I accept her evidence that she felt it just wasn’t physically possible for her to do that commute daily. It is a well-established that when considering an alternative position offer, that the reasonableness of the employee’s decision must be looked at two-fold. First, the offer made by the employer must be looked at objectively and, second, the decision of the employee must then be looked at from a subjective stand-point. This position has been clearly set out in Employment Law, Second Edition at [19.123], where it states: “the question of suitability may be determined objectively, whereas the reasonableness of the employee’s refusal is subjective and must be considered from the employee’s perspective. Thus the employee’s perception of the alternative job must be taken into account.” In Executors of Everest v Cox it was found that: “The employee’s behaviour must be judged from her point of view, on the basis of the facts as they appeared, or ought reasonably to have appeared, to her at the time the decision had to be made” The English EAT case of Hudson v George Harrison ltd shows that the arbiter of fact, before making a decision on the reasonableness of an employee’s decision to refuse to take up an alternative position can look at the employee’s personal circumstances. Before quoting the above-mentioned quotation from Executors of Everest, the EAT stated that, “the s 141 (2) question involves taking into account the personal circumstances of the employee. The test is not wholly subjective, but it includes taking into account those personal circumstances” The alternative position offered to the Complainant was a viable alternative on an objective basis. The next question I must ask is, was it reasonable for the complainant to decline the offer? I find that it was. The complainant is 65 years of age, is not in good health and has after school commitments with her granddaughter. She would have had to take two buses to get to the Barrow Street premises leaving her with a substantially longer commute time both to and from the work place. Even though the respondent was willing to amend her working hours, that wouldn’t reduce the actually amount of time and effort involved in getting to and from work. It would also mean that she would not be available to collect her granddaughter from school. The complaint succeeds. The complaint is entitled to a redundancy payment based on the following details:
Start date 01.09.2000
End date: 02.08.2019
Salary : €360 per week.
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.
The complaint is well founded. The complainant is entitled to a redundancy payment as set out above.
Dated: May 1st 2020
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly B.L.