Complainant

Respondent

Parties

Alen  Fabris

Bidvest Noonan (ROI) Limited

Complainant

Respondent

Anonymised Parties

Representatives

Shane Coyle Solr.,

Markey Minogue Coyle Solicitors LLP

Emily Maverley,

IBEC

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-00057373-001

27/06/2023

This matter was heard over the course of two days by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely.  I am also satisfied that I was in a position to fully exercise my function, and I made all relevant inquiries in the usual way.

In response to the Supreme Court decision in the constitutional case of Zalewski  -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021), I can confirm that the within hearing was open to the public so as to better demonstrate transparency in the administration of Justice.  I have additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and in the event that there was to be a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Affirmation as appropriate and so as to progress matters. It is noted that the giving of a false statement or evidence is an offence.

The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 27th of June 2023.

At the completion of the hearing, I did take the time to carefully review all the oral evidence together with the written submissions made by the parties. I have noted the respective position of the parties.  I am not required to provide a line-by-line assessment of all the evidence and submissions that I have considered. Any matter not specifically addressed is deemed superfluous to the main findings.  I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held that a

“…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one.  Only broad reasons need be given…”. 

The Complainant had full legal representation at the hearing. When it came time to hear the Complainant’s evidence, the Complainant agreed to make an Affirmation to tell the truth. The Complainant relied on the submission already set out in the Workplace Relations Complaint Form.  I was provided with supplemental documentary evidence in support of the Complainant’s case. The Complainant’s Solicitor directed my attention to a letter previously sent by him to the Respondent and dated the 26th of June 2023 wherein he had set out the Complainant’s position concerning a claim for Statutory Redundancy. The said letter also sets out the relevant caselaw which might be taken into consideration. The Complainant’s Solicitor made a comprehensive oral submission at the conclusion of the evidence. No objection was raised to any of the materials relied upon by the Complainant in making his case. The Evidence adduced by the Complainant was challenged as appropriate by the Respondent’s Representative.

The Complainant alleges that he is entitled to Statutory Redundancy in circumstances where he says that his Employer failed to provide him with suitable alternative employment when the role he had been in for four years was made Redundant.

Where it also became necessary, I explained how the Adjudication process operated with particular emphasis on the burden of proof which had to be attained by the Complainant in the first instance.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. 

The Respondent was represented by the business representative group known as IBEC. The Respondent provided me with a comprehensive written submission dated February 6th, 2024. No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of setting out its case. Owing to the passage of time, no witness was available to give evidence on behalf of the Respondent and in the circumstances the Respondent relied on it’s submission together with the supporting documents.

The Respondent rejects that there is any entitlement to Statutory Redundancy. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. 

I have carefully considered the evidence adduced in the course of this two-day case. The Complainant commenced his employment with the Respondent Company in the autumn of 2011. The Complainant was engaged to carry out Security Guard functions.

The Complainant provide me with a signed version of his Terms and Conditions of Employment which was signed by him on the 23rd of September 2011 with a start date of 4th of October. This document was acquired by the Complainant under GDPR. The document is important in the context of this case for the following paragraph:

Your place of work is likely to vary during the course of your employment owing to the nature of the Company’s Business, however your place of work will be within a reasonable travelling distance from your home. It is a condition of your employment that you are willing to relocate as and when requested.

As against this, the Employer sought to rely on a document headed Conditional Offer of Employment which references the Mobility Clause in the Employee Handbook which (at 2.25) reads:

Due to the nature of the Company business, you may be requested or required to work in different locations during your employment. The Company reserves the right to relocate you to other sites as and when required and it is a condition of your employment with the Company that you are willing to do so. The Company will give you as much notice of any change of location as is reasonably possible.

Clearly there is a difference in emphasis as between the Terms and Conditions which recognises a reasonable travelling distance might be acknowledged whereas on the other hand, in the Employee Handbook, there is no indication as to what (if anything) might be considered reasonable in the context of relocation.

The Complainant worked well for the Respondent for many years. There’s no suggestion of any disciplinary issues, and the Complainant appears to have demonstrated great flexibility for his Employer as he was moved from position to position. The Complainant worked in Grafton Street and Capel Street and eventually was moved out to Airside in Swords. At a date unknown but in and around 2017 the Complainant moved up to live in Drogheda. I understand that his role in Airside continued until sometime later when he was successful in being placed by the Respondent into a  security position in Drogheda. The convenience for the Complainant was huge as he now had a family and a daughter with whom he was putting down roots. The Complainant’s placement in Drogheda was a couple of minutes’ walk from his house, and he enjoyed this position for some 4.5 years.

On the 19th of December 2022, Ciaran O’Brien, the Security and Risk Manager, contacted the Complainant by phone call to inform him that their Drogheda client would be ceasing security services on site from 12 January 2023 meaning the role was at risk of redundancy. Mr O’Brien advised the Complainant that the company would begin the consultation process and would explore options of a suitable alternative role in a different location.

On the 20th of December 2022, Mr O’Brien sent the Complainant a letter confirming that the role was at risk of redundancy. Then on the 06th of January 2023 a communication was sent in which Mr O’Brien suggested another role in Drogheda was on the point of coming up.

The Complainant’s role was made Redundant on the 12th of January.

At a second meeting on the 13th of January 2023, the Complainant was advised that unfortunately, the alternative Drogheda role was no longer available. The Complainant was most certainly disappointed and concerned with this news and asked Mr O’Brien was there any other alternative roles that could be offered. Mr O’Brien advised that unfortunately at that time they had no identified any other suitable alternatives, but the company would reassess in the coming days. Mr O’Brien advised the Complainant that he would receive full pay while the process is ongoing.

On the 16th of January 2023, the Complainant attended a third consultation meeting with Mr O’Brien. Mr O’Brien advised the Complainant that the company had another offer which was now available.

The offer was:

A Monday – Friday role from 10:00AM – 4:00PM

With an additional hour from 10:00AM – 5:00PM on Thursdays.

The role was to be split between Raheny and Santry, at a higher rate of €13.90 per hour.

The hourly rate was a lift from €12.50 per hour to €13.90 which would see a weekly salary uplift of circa €43.00 gross.

An official offer for this role was sent that same day – January 16th, 2023.

The Complainant who relies on public transport indicated that both of the proposed locations were too far for him and could take up to 2 hours to get to each way. The Respondent did not agree that it would take two hours though, to my mind, there can be little doubt that the journey was not short and there would be a requirement for bus and/or train connections. Mr O’Brien further advised that the additional payment was being made to cover extra costs of travel which tends to suggest that the Complainant would be financially no better off even though he could potentially lose at ten hours to travel every week.

By January 18th, 2023, the Complainant had refused the proposed alternative employment as being unsuitable.

In a letter from his employer sent on the 20th of January  2023 the Employer stated:

The following position was offered to you:

Location: AIB Raheny and Santry

Hours of work: 10am-4pm Mon-Wed 10am-5pm Thursday and 10am-4pm Friday

Days of Work: Monday to Friday

Title: Security officer

The above position was deemed as a suitable alternative, same title, hours, days of work, environment, commute distance was within the legislative requirements, you rejected this role therefore removed your right to redundancy. As a suitable alternative has been offered and you have rejected such your last working date with Bidvest Noonan will be 20/01/2023.

The Complainant’s employment was therefore terminated with immediate effect on the 20th of January 2023. It is worth noting that there is no reference to a notice period or payment in lieu. Given the Complainant had worked with the Respondent for ten years his entitlement was six weeks. I would also state that I am uneasy with the casual suggestion that the offer made was within the legislative requirements. I am not sure what was meant by this assertion and certainly makes no allowance for a right to reasonably decline. I would venture to suggest that it had the hallmark of an attempt to brush off this employee with haughty disregard.

In any event, the Complainant was offered a right of Appeal which the Complainant availed of. By the time the Appeal hearing was dealt with the Complainant had, out of necessity, found himself suitable alternative employment so any job offer made in March of 2023 as part of the Appeal outcome is a non-issue to my mind.

The issue for determination is whether the Complainant has unreasonably refused the Respondent’s offer of alternative employment and has thus disentitled himself to statutory redundancy payment under Section 15 of the Redundancy Payments Act 1967.  It is firstly necessary to set out the relevant statutory provisions and caselaw before applying same to the factual matrix already adduced.

Section 7 of the Redundancy Payments Act 1967 provides for a general right to redundancy payment where an employee is dismissed by reason of redundancy and meets the requisite criteria as follows:

“General right to redundancy payment

7- (1)  An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided- (a) he has been employed for the requisite period, and (b) he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, 1952 to 1966, immediately before the date of the termination of his employment, or had ceased to be ordinarily employed in employment which was so insurable in the period of four years ending on that date.

(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, 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, or

(c)  the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d)  the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e)  the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained,…”

Section 15 of the Redundancy Payments Act 1967 provides for an employee’s disentitlement to redundancy payment for refusing to accept an offer of alternative employment as follows:

Disentitlement to redundancy payment for refusal to accept alternative employment

15.-(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.

(2A) Where an employee who has been offered suitable employment and has carried out, for a period of not more than four weeks, the duties of that employment, refuses the offer, the temporary acceptance of that employment shall not solely constitute an unreasonable refusal for the purposes of this section.”

When it is broken down, therefore,  Section 15(1) of the Redundancy Act 1967 provides for a scenario whereby an employer offers renewal of an employee’s contract or a new contract which does not differ from the pre-existing contract and takes effect on or before the termination of that contract. 

Section 15(2) provides for a scenario whereby an employer offers in writing, renewal of an employee’s contract or a new contract which differs wholly or in part from the pre-existing contract, subject to the proviso that it constitutes suitable employment and takes effect within four weeks. 

Given that the contract offered herein required a change in location, Section 15(2) is applicable to the instant case.

In terms of interpreting these provisions, the English EAT has provided useful guidance in relation to the appropriate test in Cambridge & District Co-operative Society Ltd -v- Ruse [1993] I.R.L.R. 156 at 158, when considering the similarly worded provisions of the British legislation in relation to the reasonableness of a refusal of alternative employment as follows:

“the suitability of the employment is an objective matter, whereas the reasonableness of the employee's refusal depends on factors personal to him and is a subjective matter to be considered from the employee's point of view”. 

The Irish employment fora have followed suit with the UK position.  In the recent determination in Byrne -v- Summeridge Limited (2020) RPD211 (and related claims with slightly varying facts against the same employer) relied upon by the Respondent herein, the Labour Court had to determine whether in line with Section 15 of the Redundancy Payments Act 1967, the refusal by the Complainant to accept the offer of work in a different location was unreasonable. 

In that case, the complainant was a bartender.  The employer had proposed a permanent transfer to a bar 12.6 km away from his previous employment in respect of which he lived walking distance away.  He was offered a single payment of €500 gross and a €550 One4all gift voucher.  This change in job would have resulted in an additional two-hour commute and either Luas or car-parking fees.  Applying the two-limb test from Cambridge, the Labour Court found that the change of location proposed was a change of such magnitude, when considered from the complainant’s subjective perspective, that the Court had to find that his refusal to accept the move to the new location was not unreasonable as follows:

“In determining the final aspect of the within appeal, the Court is required to consider two issues: (i) the suitability of the offer of alternative employment made by the Respondent to the Complainant; and (ii) whether the Complainant’s decision to refuse such an offer was reasonable in all the circumstances.  In Cambridge & District Co-operative Society Ltd v Ruse [1993] I.R.L.R. 156 the English EAT, when considering the similarly worded provisions of the British legislation, said, at page 158, that the question of “the suitability of the employment is an objective matter, whereas the reasonableness of the employee's refusal depends on factors personal to him and is a subjective matter to be considered from the employee's point of view”.

The Court accepts that the Respondent acted at all times in a bone fide manner in their attempts to retain the Complainant in the Respondent’s employment by endeavouring to offer an element of compensation for the inconvenience of transferring to a new location.  To that extent, the Court determines that the Respondent, from an objective perspective, satisfies the first leg of the test set out by the English EAT in Cambridge.

However, having considered the Complainant’s evidence, the Court is equally of the view that the change involved in moving from working in Liffey Valley where the Complainant could get to and from work in a matter of minutes with no additional costs, to working in a city centre location with the additional commute times, related costs and the difficulty of getting home after his late shifts when public transport would not be available, is a change of such magnitude, when considered from the Complainant’s subjective perspective, that the Court has to find that his refusal to accept the move to the Harbour Master Bar was not unreasonable.

There was no job available for the Complainant in his established place of work.  The alternative offered to him would have necessitated an unreasonable additional daily commute and costs for him. In all the circumstances, the Court, therefore, finds that the Complainant is entitled to a statutory redundancy payment…”

The Labour Court adopted a similar approach in its determination of the same issue in Conn -v- Cosy Tots (2021) RPD219 (and related claim) also involving a change in location as relied upon by the Respondent herein.  The complainant was employed as a cook in a creche in Dublin 14 which her employer was closing down for commercial reasons and was offered an alternative position located in Dublin 2 with the same terms and conditions.  The complainant maintained that the new location did not represent reasonable alternative employment for various reasons including her particular personal circumstances and increased travel time whilst the respondent sought to argue otherwise. 

The Labour Court observed: “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.”  After setting out the relevant provisions of the Redundancy Payments Act 1967, it cited the following UK caselaw based on similar:

“In the UK case of Hudson 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 in Executors of Everest v. Cox (1980) ICR 415.  This finding has been approved as well established in Irish law, see Regan and Murphy Employment Law (Bloomsbury, 2nd Edition:2017) para. 19.123.

The Court is of the view that…..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.” 

Having so found, the Labour Court found it unnecessary to consider the other reasons cited.

Turning to the case before me, Likewise, I must assess the factual matrix to determine whether the Complainant’s refusal of alternative employment offered in the Santry and Raheny areas was reasonable in line with Section 15(2) of the Redundancy Payments Act 1967 and the two-limb test.  This requires consideration of the factual matrix adduced to determine whether his refusal was reasonable or not. 

The diametrically opposing positions of the Parties are summarised as follows:

The Complainant maintains that he reasonably refused the alternative employment offered and was entitled to a redundancy payment because the locations suggested were too far away and too complicated to get to by bus or train. The Complainant did not accept the Respondent’s conservative estimates of travel times and believed the accumulated travel time could have been upwards of twenty hours a week. The Complainant had previously been in the fortunate position of being able to walk to and from his work. The Complainant asserted that the additional travel costs which would be incurred would not be fully absorbed by the proposed change to the hourly rate. The Complainant also asserted that a move to a work location further away from home was untenable given his personal circumstances- he had parental responsibility.

The Respondent maintains that the Complainant’s role in Drogheda was properly made redundant and following an extensive consultation process, the Complainant unreasonably refused suitable alternative employment in Swords and Raheny.  The Respondent had offered the same role with similar working days and hours. The Respondent asserted that the longer commute was compensated for by way of the increase in the hourly rate of pay. The Respondent pointed to the fact that the Complainant had previously commuted to Airside from Drogheda and that it was unreasonable to expect that the Respondent would have to provide work on the Complainant’s doorstep and that in any event the journey to and from work was outside the scope of the Respondent’s concern.

Firstly, there is no dispute between the Parties that the Respondent had ceased to carry on its business in the place where the Complainant was so employed and accordingly, his position was redundant and his contract there was terminated.  Accordingly, and as set out above I am satisfied that he was dismissed on the ground of redundancy pursuant to Section 7(2)(a) and 9(1) of the Redundancy Payments Act 1967 and as such had a general entitlement to statutory redundancy payment. 

However, this is subject to Section 15(2) of the Act which provides that an employee shall not be entitled to a redundancy payment if the criteria thereunder are met.  Applying the two-limb legal test to the factual matrix adduced herein.

The similarities to the case of Byrne -v- Summeridge Limited (2020) RPD211 are clear to be seen. On balance I find I must agree with the assessment that the proposed alternative employment involved “a change of such magnitude, when considered from the Complainant’s subjective perspective” that it was entirely reasonable for the Complainant to decline the alternative being offered. The Complainant was therefore made Redundant and is entitled to a payment of Statutory Redundancy at a minimum.

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00057373-001 - 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 the Acts.  Based upon the aforesaid reasoning, I am satisfied that the Complainant reasonably refused the offer of alternative employment and the employer’s decision to the contrary is hereby overturned.  I direct payment of redundancy by the Respondent to the Complainant under the Redundancy Payments Acts as follows

Start Date: 3rd October 2011

Termination Date: 20th January 2023

Gross Average Weekly Pay: 31 hours at €12.50 per hour is €387.50 per week

Any award under the Redundancy Payments Acts 1967-2014 is subject to the Complainant having been in insurable employment for the relevant periodunder the Social Welfare Acts.