FULL RECOMMENDATION
REDUNDANCY PAYMENTS ACTS, 1967 TO 2014 PARTIES : COSY TOTS& CO. LTD (REPRESENTED BY PENINSULA BUSINESS SERVICES LTD) - AND - BERNADETTE CONN (REPRESENTED BY RYAN SOLICITORS) DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No. ADJ-00026299 Ms. Conn, ‘the Complainant’, was employed by Cosy Tots and Company, ‘the Respondent’, as a Cook, in their creche in Nutgrove, Rathfarnham, Dublin 14. The issue of her commencement date is dealt with below. In June 2019, the Respondent advised the Complainant that they were closing these premises. It is not disputed that a number of meetings between the parties took place in July 2019, though the exact nature of an alleged offer made to the Complainant is in dispute. In August 2019, the Respondent wrote to the Complainant to offer her a position in one of their other creches, located in Barrow St., Dublin 2. The Complainant did not consider this alternative to be suitable for her. The Complainant sought to be made redundant, in accordance with the Act. The Respondent believed that in offering an alternative position with the same terms and conditions, they had met their obligations to the Complainant under the Act. The Complainant lodged a complaint with the Workplace Relations Commission, ‘WRC’. The Adjudication Officer, ‘AO’, upheld the complaint. The Respondent appealed to this Court. Summary of Respondent arguments. The Respondent took over the relevant business in 2014 under a transfer of undertakings. According to the records available to the Respondent, the Complainant worked for the company since 3 September 2001. The decision to close the Nutgrove premises was taken for commercial reasons in June 2019 and the Complainant was advised of this on 25 June 2019, following which there were meetings with her on 3 July 2019 and 15 July 2019. A reasonable offer of alternative employment was made to the Complainant at the meetings on 3 July 2019 and 10 July 2019 and then in writing in August 2019. The offer was a position as a Cook in the Respondent’s Barrow St. premises and there was to be no material change in the Complainant’s terms and conditions. The Complainant refused even to consider the position on offer. She has based her claim for redundancy on the argument that the offer of alternative work was not a reasonable alternative as she is not comfortable with driving a slightly extra distance and that she has responsibility for collecting her Grandchild from school. The distance from her home to Nutgrove Office Park is 4.1km and 11 minutes by car while the distance to Barrow St. is 9.1km and approximately 21 minutes by car, (all figures as per Google maps). The Complainant had no entitlement to guaranteed car parking in Nutgrove. The Complainant has never engaged with the Respondent regarding the offer to consider alternative working hours to facilitate her in caring for her Granddaughter. The Complainant also raised health concerns due to a mistaken impression that the premises in Barrow St. is fitted with a smaller kitchen and a reduced ventilation system but she has never been in the building. The Respondent refutes suggestions that the facilities in Barrow St. were inferior to those in Nutgrove. The Respondent offered to discuss all reasonable options before a conclusion was reached but it was clear that the Complainant did not wish to engage and had made up her mind that she was only willing to accept redundancy. The Complainant referred to taking ‘a break’. The Respondent refers the Court to s.15(2) of the Act which provides that redundancy payments are not an entitlement if the employer has offered suitable employment to the employee and if the employee has unreasonably refused the offer. There was an offer of suitable employment in this case, which was unreasonably refused. Summary of Complainant arguments. The Complainant worked for the Respondent company from about 1 September 200 but was not given a contract of employment until 3 September 2001. At the meetings in July 2019, it was suggested to the Complainant by the Respondent in a light-hearted way, that she did not believe was seriously meant, that she could move to Barrow St., following the closure of the Nutgrove premises. The Respondent then wrote to the Complainant in August 2019 to inform her that she was not entitled to redundancy as alternative work would be available in Barrow St. She was offered a right to appeal this decision. The alternative offered was not suitable for the following reasons;
b.The Complainant was 64 years old at the time. The considerable increase in commuting time would have been particularly arduous for her. c.This increased commuting time would have prevented her from caring for her Granddaughter, which would have been a difficulty for her family. d.The Complainant’s health had deteriorated in recent years and she was concerned about the increased stresses of commuting to work on public transport and the effects of a smaller kitchen with reduced ventilation. The Complainant’s reasons for declining the offer made to her were reasonable and no alternatives were suggested to her to address her concerns. The calculations regarding time and distance put forward by the Respondent take no account of the fact that the Complainant would be dependent on public transport if she had moved to Barrow St. and they are based on off-peak hours. The actual commute for the Complainant to Nutgrove to arrive at 8am was 8-14 minutes and from Nutgrove to her home at 2pm was 9-14 minutes. Her commute to Barrow St. would be 1 hour and seven minutes to one hour and 20 minutes to arrive at 8am and 1 hour to 1 hour and 8 minutes to leave at 2pm. If parking was provided in Barrow St., which was never offered, Google maps notes that it would take 22 to 45 minutes to arrive at 8am and 18 to 50 minutes leaving at 2pm. The Complainant is familiar with staff in Barrow St., who detailed to her the differences between their premises and those in Nutgrove. Also, in Barrow St. she would have to cater for 65 children, as opposed to 30 in Nutgrove. The smaller kitchen, reduced ventilation and increased workload would have a negative impact on the Complainant’s health. The Complainant disputes that she was unwilling to consider alternatives. The complainant took up alternative employment within a few weeks of her employment with the Respondent being terminated. The Respondent ceased to carry on its business where the Complainant was employed and she was made redundant in accordance with s. 7(2) of the Act. Contrary to s. 15(2) of the Act no alternative offer was made in writing to the Complainant until after the termination of her employment. In the UK case ofHudson v. George Harrison Ltd. EAT 0571/02,which considered almost identical provisions in British law, it was held that determining the reasonableness of an offer ‘involves taking into account the personal circumstances of the employee’ and the finding referenced the finding inExecutors of Everest v. Cox (1980) ICR 415.This finding has been approved as well established in Irish law, seeRegan and Murphy Employment Law (Bloomsbury, 2ndEdition:2017) para. 19.123. The applicable law.Redundancy Payments Act 1967
(2) For the purposes of subsection (1), 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,
(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 Deliberation. S. 7(2) of the Act makes clear that redundancy arises when an employer ceases business in the place of employment, as in this case. The exception to this is in s.15(2) of the Act, which provides that redundancy is not payable in cases where the employer makes an offer of suitable alternative employment. The issue for the Court to consider in this case, therefore, is whether the offer of an alternative position amounts to a suitable offer of alternative employment within the meaning of s.15(2). In considering the question of suitability, the issue of location has to be taken into account by the Court. It is notable that s. 7(2) of the Act refers specifically to an employer ceasing to carry on work in the place of employment. In considering this question, the Court has to have regard to the particular circumstances of each case. In the instant case, there is physical distance between Nutgrove and Barrow St., which might be argued not to be excessive. However, there is the reality of a difficult commute between the locations. Detailed argument in respect of the commute from the Complainant’s home to the two locations was put forward by both parties. The Court is of the view that, in the circumstances of the city, the issue is less about the physical distance between Nutgrove and Barrow St. than about the length of time it would take to cover that distance. It is this factor that leads the Court to the view that it was reasonable for the Complainant to decide that the offer made was not one that constituted suitable alternative employment. In this regard, the Court takes account of the fact that a move to Barrow St. would have required the Complainant to use public transport due to the lack of car parking in that location. As the offer made to the Complainant was not one of suitable employment, it follows that the Complainant was made redundant and is entitled to a payment under the Act. It is not necessary for the Court to consider other arguments put forward for the Complainant in support of her decision to refuse the offer. There is a vagueness about the commencement date of the Complainant’s employment. The only certainty is that she was employed on the date that her contract was signed i.e. 3 September 2001. As there are no records for any period prior to this, the Court is obliged to conclude that the calculation of payment due must be based on this start date with an end date of 2 August 2019 and based on a salary of €360 per week. Determination The Decision of the Adjudication Officer is varied, as set out above.
NOTE Enquiries concerning this Determination should be addressed to Noel Jordan, Court Secretary. |