ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00047292

Parties:

Complaint:

Date of Adjudication Hearing:  04/04/2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, following 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 seeks statutory redundancy payment.

Summary of Complainant’s Case:

The Complainant was employed by the Respondent as a Supervisor at a site in Clonee from 3rd January 2017 to 26th May 2023 when he was laid off following the completion of work at the site.  The Complainant lives in Navan.  He was not given written notice of the layoff, but was told on 24th May 2023 that he would be laid off on 26th May 2023.  He applied for job seekers allowance on 8th June 2023.  On 29th June 2023 the Respondent offered him a General Operative job at a site in Kilkenny.  He rejected this offer and served an RP9 form on the Respondent.  The Respondent contested his claim by RP7 on 1st July 2023.  The Respondent offered him a job as a Labourer/Snagger at a site in Blessington/Greystones in November 2023.  The offers of alternative employment were not reasonable or suitable to his circumstances.  The first would involve a round trip of 7 hours travel per day and there is no public transport to the location from his home.   He is seeking a redundancy payment.

Summary of Respondent’s Case:

The Respondent is an employment agency which provides construction personnel, helping contractors control their costs while delivering high-quality construction work.  The Complainant was an agency worker directed to work for one of the Respondent clients. The Complainant lives north of Navan in County Meath and was working at a construction site in Clonee and the border of County Meath and Dublin.  The Respondent client requirements for agency work diminished greatly as the site in Clonee was nearing full completion and as a result the Complainant was laid off on 26 May 2023. It was Respondent’s expectation that a work place would be secured in the near terms with some of the other Respondent clients.  On 29/06/2023 an offer of employment as general operative in housing development in Kilkenny was offered to Claimant with possible immediate start. Complainant on same date advised he “could not accept the offer”.  Only following receipt of the offer of employment, Complainant served form RP9 on 01/07/2023. The form wrongly indicates a period of lay off being 03/01/2017 to 26/05/2023 and is dated 01/07/2023.  On 03/07/2023 an immediate start role as General Operative with the potential of a Supervisor Role as the project develops was offered to Complainant. It was confirmed it is on the same rate of pay. Complainant refused the offer on the same day and indicated “no I would require a supervisor role”. Respondent on 04/07/2023 asked Complainant to consider again his position. It was confirmed that that supervisory role normally develops on site- exactly the same way Complainant became a ganger on the Clonee site. And it was reiterated again it is exactly same financial package.  On 05/07/2023 Part C of the RP9 form duly completed was served on the Complainant indicating that in essence there are roles/employment available for the Complainant.  Respondent contacted Complainant again on 06/11/2023 with General Operative and Snaggers positions in Blessington and Greystones.

The Law

Section 15 of the Act clearly provides when an employee shall not be entitled to redundancy:

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.

(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.

Respondent position

The Respondents submits that the Complainant is not entitled to redundancy for refusal to accept alternative employment so in circumstances where there was available in place where the complainant was “so employed”.  Before the offers presented by the Respondent to the Complainant are considered it is submitted that the following relevant factors shall be considered when the reasonable of the offers is being considered:

1. Respondent is an employment agency providing personnel to third parties. Therefore, Complainant shall be seen as agency worker- an individual employed by an employment agency under a contract of employment by virtue of which the individual may be assigned to work for, and under the direction and supervision of, a person other than the employment agency. That implies that by the very nature of the employment as an agency worker there might be and in it reasonable to expect- different location where Complainant might be offered employment/directed to work. Furthermore, while performing work agency, employee (so Complainant herein) will be naturally under direction and supervision of such client (hirer of agency work) who may decide within the scope of such supervision what role/tasks are assigned to such agency worker.
2. The Terms of Engagement between Complainant and Respondent clearly indicate that due to nature of the business the place of work will vary and the duration depends on how long labour skills match the labour requirements of clients of the Respondent.

Therefore, it was a term of the employment that Complainant may work at different locations (the place of work will vary) and may work for different clients of the Respondent. It also confirms that there might be different skill sets required by different clients (hirer of the agency work). It is clearly a double factor determining where Complainant was so employed. Due to the character of his contractual relationship with the Respondent, Complainant was agency worker whose place of work where he was so employed depended on the needs/requirements and location of hirers of the agency work/clients of the Respondent.  It is submitted that Complainant acknowledged receipt of those Terms of Engagement. It is also submitted that he was fully aware that there might be different locations and different roles (within the scope of construction worker) available to him via such agency work with Respondent.  It is submitted that not only there was no redundancy situation by the fact that there was work available (after a period of lay off) but also reasonable offers of employment were made to the Complainant. Objectively it was offer of very similar if not identical employment with other clients of Respondent on different construction sites. Furthermore, the nature of the construction business in which Complainant pursues his employment career, by its very nature implies change of place where work is being performed as the location of the construction sites changes once the construction process is completed.  It is further submitted that the offer was on same pay level/pay package and it was indicated to the Complainant to consider the offer that was made as the role has potential of development. The offer therefore was clearly a reasonable offer of further employment if same is considered objectively. It was a similar offer previously accepted by the Complainant where subsequently due to control and supervision of the hirer of agency work/Respondent client, the Complainant was assigned some type of supervisory duties which however did not affect the pay levels.  When the offer is considered from the Complainant personal perspective, it is submitted that all Complainant indicated that he “could not accept the offer” and subsequently clarified that he “require a supervisor role”.  The Act cited herein does not require the Respondent employer to provide identical offer of alternative employment. The law requires that the terms and conditions of employment would not differ. It is submitted that it was offer in construction, as general operative with a potential of development with identical financial package and therefore it did not differ from the current terms of contract. It was therefore an offer of alternative suitable employment within the meaning of the act.

Respondent relies on UK case Stevenson v Tees-side Bridge and Engineering Limited. In this case Mr Stevenson, steel construction worker refused an alternative offer of employment on another location, not due to its location/distance from home but because he thought the opportunity of earning overtime was not good. Similarly in the instant case the Complainant did not refuse the role offered to him due to distance but clarified that he needed “supervisor role”. It is submitted it makes his case even weaker when compared to the case law relied herein, as in the Stevenson case the employee refused the offer (and was subsequently dismissed for not showing up at work as a result and same was upheld in court) on subjective view he will not earn sufficient in his opinion overtime. In this case Complainant was offered exactly same financial package.  Finally, it is submitted that the Section 15 (2A) of the Act allows the Complainant to verify the suitability of the offer that was presented to him and still protects his rights. It is therefore submitted that a reasonable employee would have verified the offer presented to him and therefore by failing to do so Complainant unreasonably refused the offer.  Complainant herein is not entitled to redundancy for refusal to accept alternative employment in similar if not identical employments on construction sites with the same level of pay.

Findings and Conclusions:

CA-00058323-001           Redundancy Payments Act 1967

The Respondent argues that as an Agency Worker, liable to go wherever the work is, the Complainant is not entitled to redundancy.  The 1967 Act (as amended) defines employee as a person who entered into a contract of employment.  The Act defines and provides that a contract of employment encompasses agency workers in Section 2 (1) of the Act as :

“contract of employment” means

(a) a contract of service or apprenticeship, and

(b) any other contract whereby an individual agrees with another person, who is carrying on the business of an employment agency within the meaning of the Employment Agency Act 1971 and is acting in the course of that business, to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract)..

I find that the Complainant meets the definition of employee for the purposes of the Act.

Section 12 of the Act provides the right of the employee to serve notice on the employer of his intention to claim redundancy.  Section 13 of the Act provides for the employer to serve counter notice.  It is common case that the requirements under sections 12 and 13 of the Act in respect of the serving of notice and counter notice were met. In those circumstances the issue that remains to be considered is whether in line with section 15 of the Act the refusal by the Complainant to accept the offer of alternative work in a different location was unreasonable.

Section 15 of the Act provides

(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 reengage 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.

(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.

The issue to be considered is whether in line with section 15 of the Act the refusal by the Complainant to accept the offer of alternative work in a different location was unreasonable.

In determining this, I have considered two issues: (1 the suitability of the offer of alternative employment made by the Respondent to the Complainant; and (2 whether the Complainant’s decision to refuse such an offer was reasonable in all the circumstances.   I accept that the Respondent acted in a bone fide manner in their attempts to retain the Complainant in the Respondent’s employment.   However, the offer of a position involving such additional commute times and related costs is a change of such magnitude, when considered from the Complainant’s perspective, that the refusal was not unreasonable. There was no job available for the Complainant in his locality.   The alternative offered to him would have necessitated an unreasonable additional daily commute and costs for him. In all the circumstances, therefore, I find that the Complainant is entitled to a statutory redundancy payment based on the following criteria:

Commencement:            3rd January 2017

Date of dismissal:            28th July 2023 (being 4 weeks from the date that the Complainant served the RP9 form)

Gross average weekly wage: €871

CA-00058323-002

This is a duplicate claim and is adjudicated upon in CA-00058323-001 above.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

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 have decided that the Complainant is entitled to a statutory redundancy payment based on the following criteria:

Commencement:            3rd January 2017

Date of dismissal:            28th July 2023 (being 4 weeks from the date that the Complainant served the RP9 form)

Gross average weekly wage: €871

Dated:   10/05/2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Key Words: