Complainant

Respondent

Parties

Grazyna  Kaczynska

Boston Scientific Ltd

Representatives

  Self-represented

Alison McComiskey IBEC West

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-00054472-001

12/01/2023

The complainant commenced employment with the respondent company in 2008 on a temporary contract.  She was offered a permanent contract on 27 February 2012 in the position of Product Builder.  She worked a 39-hour week, and her weekly pay was €605 gross.

On the complaint form submitted the complainant describes her position as In Process Monitoring, Quality Support.  The complainant states that she worked in Process Monitoring as Quality Support between June 2015 and July 2019.  She became ill in July 2019 and was medically certified for sick leave.

In late 2020 the complainant contacted her supervisor about returning to work in the position she held prior to becoming ill.  She states that she was informed that the duties and role she previously undertook were no longer available.  The complainant requested redundancy in 2022 because she claims her role was redundant.  The request was refused.  The complainant submitted a complaint to the WRC on 12 January 2023 claiming that she did not receive a redundancy payment.

The respondent refutes the complaint.  The complainant is employed in the position of Product Builder.  The respondent’s position is that it engaged in a meaningful consultation process with the complainant to facilitate her return to work.  She was offered the choice of returning to two business units.  The protections of the Act only apply if the position is made redundant.  The respondent has always had and continues to have a position available for the complainant.  The complainant’s post with the respondent is not redundant, no dismissal occurred and therefore no redundancy payment is owing.

The complainant commenced employment with the respondent in March 2008.  Her contract identified her role as that of a Product Builder working in the cleanrooms.  The work entailed operating equipment, handling products and quality checks.  Initially the complainant was employed on a temporary contract.  She was offered a permanent contract in 2012 working full-time 39 hours per week. 

From June 2015 to July 2019 the complainant worked in Process Monitoring as Quality Support.  This work involved testing products between R&D and Incoming Inspection Labs and she performed office duties such as updating Excel files and filling forms.  In this role she reported to a Senior Quality Engineer, and she worked on a flexible hour basis.  The complainant requested that her contract be amended to reflect the change to her role, but she was informed that HR would not issue a new contract to her.

The complainant became ill in July 2019.  She submitted medical certificates to the respondent until such time as her manager informed her that there was no requirement to continue to send medical certificates unless there were changes to her medical condition.  During the period of sick leave her manager moved to a new role.  Her new manager was Lee Ann Joyce.  In October 2020 the complainant’s doctor cleared her to return to work provided there were some reasonable adjustments and physiotherapy.  The complainant met with Ms Joyce to discuss her return to work.  The complainant was informed that the duties she performed before going on sick leave had been divided between technicians.  That role was no longer available.  She was told to return to the Product Builder role in Cleanroom 9 to operate a line, but no other details were provided.  The complainant continued her sick leave.

In February 2021 the complainant was offered a role that involved packing product.  She considered this was not a reasonable offer as her terms and conditions of employment would be adversely affected.  There was another email in September 2021 that informed the complainant that an area had been identified for her to return to work.  However, when she contacted the relevant manager, he was not aware of any role other than that offered in February 2021.

The complainant attended Occupational Health appointments arranged by the respondent.  However, she was not offered a role that she thought to be reasonable.  She requested a redundancy payment from the respondent in January, June, and August 2022.  In January 2023 the HR department offered to conduct another review of available and suitable roles but this review was not completed.  The complainant submitted her complaint to the WRC on 12 January 2023.

Legal Submission

The complainant contends that her role is redundant as the duties she performed before going on sick leave had been divided between technicians.  She asserts that alternative comparative work has not been offered to her in writing.  No consideration has been given to the years of experience and learning she has gained.  The complainant submits that the Redundancy Payments Acts, 1967-2014 provides that an alternative offer of employment may not be considered appropriate if the alternative offer is not reasonable.

The complainant contends that the role of Product Builder is not a reasonable offer because,

·        It would result in a loss of status for her within the company

·        The terms and conditions of employment are worse, the role requires less skill, offers no opportunity in relation to advancement and provides no flexibility in relation to working hours.

The complainant feels that she has not been treated fairly or respectfully in relation to her return to work.  She contends that the role offered would be a step backwards and she views it as a demotion.  The complainant seeks a redundancy payment from the respondent.

The respondent is a medical devise manufacturer with operations internationally and throughout Ireland.  It employs approximately 4,000 people at its site in Galway, of which approximately 1,900 are Product Builders.

The respondent refutes this complaint.  The complainant’s contracted role is and remains that of a Product Builder.  The complainant alleges that her role is redundant, that is not correct.  Following a leave of absence, the complainant was invited to return to her contracted role of Product Bulder, albeit with a change in tasks. 

The respondent employs approximately 1,900 Product Builders across 9 business / production units at its site in Galway.  The role of Product Builder is varied and complex, working on a variety of medical device products and related tasks.  Quality related tasks are a fundamental part of every Product Builder role, as it is with all roles at the respondent.  Tasks change frequently as product lines evolve; therefore, flexibility is critical for the role of Product Builder.  The complainant demonstrated such flexibility in the past when working across multiple business units and product lines.

The respondent engaged in a meaningful consultation process with the complainant to facilitate her return to work.  The complainant was offered the choice of returning to 2 business units.  The complainant unreasonably refused these offers.  The respondent remains committed to facilitating the complainant’s return to work.

Background

The complainant commenced employment with the respondent in March 2008 on a temporary contract.  She was offered and accepted a permanent contract in February 2012 for the position of Product Builder.  The complainant initially worked on a day shift in the SES business unit, then transferred to the SDC business unit on weekend shift and later transferred to DES business unit on day shift and later transferred to an evening shift. 

In 2015, due to personal circumstances, the complainant requested flexibility regarding her start/end work times.  To accommodate the complainant, she was assigned standalone tasks.  She carried out these tasks from 2015 until July 2019 when she went on sick leave.  The tasks performed by the complainant between 2015 and 2019 are all tasks done by Product Builders.

In January 2022 the complainant wrote to the respondent requesting redundancy.  The complainant was informed that her role was not redundant.  The respondent has engaged in a process to facilitate the complainant’s return to work in her contracted role.  Throughout 2022 the respondent tried to engage with the complainant by arranging appointments with Occupational Health, meeting with the complainant and discussing available roles.  As there was some disagreement about the complainant’s fitness, the respondent offered to obtain a second medical opinion.  There followed an exchange of letters / emails.  The complainant informed the respondent in December 2022 of her intention to submit a complaint to the WRC.

Respondent’s Position

The complainant is employed as a Product Builder.  The tasks assigned to the complainant between 2015 and 2019 are tasks carried out by Product Builders.  These tasks did not constitute any change to the complainant’s terms and conditions of employment. 

At the complainant’s request, due to her personal circumstances, the respondent accommodated changes in her start/end times and assigned her standalone tasks.  The respondent does not accept that these changes in tasks are a change of role or responsibility, as alleged by the complainant.  The respondent does not dispute that these tasks are quality related, but all Product Builders undertake quality related roles.

The respondent does not accept that the roles offered to the complainant in 2022 amounted to a demotion.   The roles offered in 2022 were the available Product Builder roles that were most suitable for the complainant given the medically advised restrictions of sitting for 3 hours per day.

The respondent submits that the complainant’s refusal to work in either of the roles, even on a phased basis as medically advised, was unreasonable.  The roles offered are in line with the job description of a Product Builder.  The respondent rejects the contention by the complainant that a change in her reporting line from a Product Supervisor to a Quality Manager indicates a change in her terms and conditions of employment, as such a reporting line is not uncommon.

Legal Submission

The protections of the Act apply when a role is made redundant.  The complainant is employed as a Product Builder.  The respondent has always had and continues to have a role available for the complainant.  No dismissal has occurred, and no redundancy payment is owing.

Following long term absence, the complainant, when medically fit to return to work, was offered a role under the same conditions of her contract of employment.  That is a role as a Product Builder.

The complainant’s submission that she was not offered suitable alternative employment is only relevant if her role was redundant.  Her role was not declared redundant.

The respondent cites the decision of the Labour Court in CC Label Ltd v Byrne RPD 2113 in support of its submission.  That case involved a driver who was driving a vehicle that no longer met the employer’s requirements.  The driver held the necessary licence to drive a larger vehicle that would meet the employer’s requirements.  The Court held that as the role of delivery driver was not made redundant, although there were some changes, there was no obligation on the employer to make a redundancy payment.

It is the respondent’s position that the complainant’s role remains available and that she has failed to provide facts from which it may be inferred that a redundancy is applicable.  Offering alternative roles only arises if the role is made redundant.  The role of Product Builder is not redundant.  The complainant was not dismissed by the respondent.  The respondent submits that the claim must fail.

CA-00054472-001

Complaint pursuant to section 39 of the Redundancy Payments Act 1967.

The complaint contends that the duties she carried out between 2015 and 2019 were divided between technicians during her sick leave and the role no longer existed when she wanted to return to work.  She contents the role is redundant and she has not been offered suitable alternative duties.  Therefore, she claims she is entitled to a redundancy payment.

The respondent disputes the claim.  It contends that following a period of leave the complainant was invited to return to her contracted role of Product Builder and offered a choice of two business units.  The complainant’s role is and remains that of a Product Builder. The respondent has always had and continues to have a role available for the complainant.  No dismissal occurred and no redundancy payment is owing.

Legislation

Section 7 of the Act provides a general right to redundancy payment, subject to the terms of the Act:

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.

The entitlement to a redundancy payment arises if an employee is dismissed by their employer by reason of redundancy.  The issue to be decided is whether the complainant has been dismissed by the respondent by reason of redundancy and if so, is she entitled to a redundancy payment.

Section 9 of the Act provides as follows concerning dismissal:

9.— (1) For the purposes of this Part an employee shall, subject to this Part, be taken to be dismissed by his employer if but only if—

(a) the contract under which he is employed by the employer is terminated by the employer, whether by or without notice, or

(b) where, under the contract under which the employee is employed by the employer the employee is employed for a fixed term or for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), that term expires or that purpose ceases without being renewed under the same or similar contract, or

(c) the employee terminates the contract under which he is employed by the employer in circumstances (not falling within subsection (5)) such that he is entitled so to terminate it by reason of the employer‘s conduct.

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

Summary of the Complainant’s Evidence

The complainant read her written submission at the commencement of the hearing.  In her sworn evidence she stated that she was not supported in her attempt to return to work from sick leave.  She stated that she had expressed to her manager how flexible she was, but she was not heard. An offer of a post with different responsibilities to the role she carried out before her sick leave was not put to her in writing and very few details were provided to her.

Referring to the Redundancy Payments Act the complainant stated that the employer is required to give details of an offer of alternative work in writing, but this never happened.  Such an offer should be reasonable, but what she was offered was not reasonable.  The role offered would have had strict start and end times because she would have been working on a production line.  Previously she had flexible working hours, that is flexible in start and end times daily. 

The complainant stated that she could not agree to take a job when she did not know what the job would be.  She had told the respondent she was flexible. She was hoping she would be offered a more suitable job.

Cross Examination

In reply to questions about her employment with the respondent the complainant confirmed that she had commenced employment on a temporary contract in 2008 and moved to a permanent contract in 2012.  She was employed as a Product Builder.  She agreed that Product Builders work on different systems.

The complainant confirmed that in 2015 she asked for flexible work hours for personal reasons and these were agreed.  She confirmed that the respondent supported her with flexible hours, but she said it was not easy for her, she had to focus on her family.  She worked flexible hours between 2015 and 2019.  She also had a period of maternity leave in 2017/2018. 

The complainant stated that she had requested a new job description and updated contract, but HR was not willing to provide such.  When asked if she had used the Employee Problem Resolution Process the complainant stated that it was hard to do because of the threat of returning to the production line.  She had gone to HR for advice, not to complain.  However, she felt medical information was not respected, for example she was not provided with training at the end of her sick leave.

When asked if she had applied for a post with the quality team the complainant stated that she was not aware that could be done.  However, she believed she had the required qualifications for such a role. She stated that she was quality support. It was put to the complainant that her manager would say the title quality support does not exist, but the complainant responded that a quality support role did exist.

The complainant stated that she suffered with back problems and had to take sick leave in July 2019.  She had submitted medical certificates each month to her manager.  When he moved and Lee Ann became her manager, she said it was not necessary for the complainant to provide monthly certificates unless her medical situation changed.  She wanted to return to work, and her GP believed she was fit, with reasonable accommodation and physio.  She engaged with the respondent and she was twice offered roles, as a Product Builder.  These offers did not provide reasonable accommodation for her back condition.  The complainant stated that she did not want to extend her sick leave but, she was not offered a suitable role.

The complainant stated that the roles offered did not provide her with flexible hours, as she had before her sick leave.  There was no reason why such flexibility should be taken away from her.  In addition, the roles offered would mean a loss of status for her in the company if she had accepted them. 

The complainant disagreed that she had unreasonably refused the roles offered to her.  She acknowledged that the respondent had supported her but in the past.  This time it was different.  A return to work should be simple but the roles offered she could not accept.

Summary of the Respondent’s Evidence

Lee Ann Joyce – Principal Quality Engineer.  Ms Joyce outlined her career with the respondent.

Ms Joyce stated that she was the complainant’s manager for approximately nine months, all of which time the complainant was on sick leave.  In reply to a question about the role description used by the complainant Ms Joyce stated that ‘process monitoring quality support’ is not a job title.  No such roles exist. She then described the tasks carried out by the complainant between 2015 and 2019 as being very similar to the tasks done by Product Builders.  The tests done by the complainant were on scrapped units and that work did not require qualifications.  Referring to the task completion list of the complainant’s duties (2015/2019) she stated that all the tasks listed are tasks done by Product Builders.  Ms Joyce stated that she was familiar with the Product Builder roles offered to the complainant to return to work.

Cross Examination

In reply to questions from the complainant Ms Joyce confirmed that tasks performed by the complainant were all Product Builder tasks.  The available roles were offered to the complainant were consistent with the tasks she had performed previously.  The complainant’s training records were held on the appropriate system due to her reporting line.

Anthony Ryan – Employee Relations. 

Mr Ryan stated that the up-to-date Occupational Health report was considered when reviewing the open roles available.  The complainant could work in most Product Builder roles where there was flexibility to sit and stand for the periods as advised. Mr Ryan had not been involved in the meeting with the complainant on 14 September 2022.  The meetings was conducted by David Williams, who had since left the company.  However, he referred to the emails from Mr Williams to the Complainant dated 26 September and 25 October 2022.  He stated that the respondent had followed the standard process for a return to work, obtaining Occupational Health reports and meeting with the employee.  His view, based on the documents, was that the complainant was reluctant to return to work, it was noted by Occupational Health in February that she wished to return on a 3-day week. The requests for a redundancy payment had been rejected in the email of 26 September 2022 from Mr Williams because the complainant’s role was not redundant.

Cross Examination

The complainant raised a question about flexibility.  Mr Ryans confirmed that shifts were offered for return to work.  The complainant stated that shifts were not the same as the flexibility she had for four years, she wanted a reasonable offer.  She had applied for job-share posts in the past but did not get them.  The complainant said she wanted to clarify that she did not request a 3-day week.

Re-examination

Mr Ryan referred to an email from February 2022 in which it was stated that the complainant had voiced her concern about her ability to work full-time and that 3 days was her preference. 

In reply to questions from the AO Mr Ryan stated that the respondent had not made any Product Builder roles redundant in the previous eight years.

Findings

The complainant’s contract of employment, dated 27 February 2012, was provided with the submissions.  The contract offered the complainant permanent employment in the role of Product Builder.  The complainant contends that the duties she performed between June 2015 and July 2019 were a complete change in role.  She describes her duties as including “testing products between R&D and Incoming Inspection Labs and office duties, consisting of updating excel files and filling forms.”  The complainant during that period reported to a Senior Quality Engineer.  The complainant states that she asked for her contract to be amended to reflect the change in her role.  Her requests were made before she became ill in 2019.

The respondent did not amend the complainant’s contract of employment.  It is and was at the time of her requests the respondent’s position that the complainant’s role did not change.  It is the respondent’s position that the complainant’s role was and is that of a Product Builder.  The role of Product Builder may involve many different tasks, as set out in the contract of employment.

 It was Ms Joyce’s evidence that from her knowledge the tasks carried out by the complainant were tasks done by Product Builders, any testing done by the complainant was carried out on scrap units.  These tasks did not require qualifications.  Ms Joyce said that the title used by the complainant on her complainant form did not exist, there was and is no such quality role.

The complainant’s change of duties in 2015 were the result of her request for flexibility in her start and end times, for personal reasons.  The respondent facilitated the complainant’s request and assigned her standalone tasks.  The respondent did not agree or propose any change in grade or other conditions of employment. 

I note the following section in the complainant’s contract of employment, “BSIL reserve the right to change your work time and patterns in line with changing business needs and it is a condition of your employment that you are flexible and responsive to such requests, based on reasonable notice by the company.  Boston Scientific works a principle of job rotation, work content and line balancing.  This means that it is essential that Product Builders are flexible and versatile with regard to the number of work steps they are trained on and capable of doing.  Product Builders must be able to carry out a sufficient number of work steps within their work area to efficiently cover their working day and allow other Product Builders to rotate where necessary.”

I am satisfied that the role of Product Builder requires a lot of flexibility and many different duties to be performed by employees across the business units.  The complainant requested flexibility regarding her start and finish duty times in 2015 for personal reasons.  I am satisfied, based on the evidence presented, that the respondent facilitated her request for flexibility, it was not assigning her a new or higher role in 2015.  That position is consistent with the respondent’s refusal to issue her with an amended contract of employment.  I find that the complainant’s role is that of Product Builder.

Unfortunately, the complainant became ill in 2019.  She required a long period of sick leave.  When fit to return to work, with some recommended accommodation for sitting and standing time, the duties she had performed between 2015 and 2019 had been assigned to other workers.  It is normal for an employer to assign duties that are required to be done to other employees when one employee is absent for an extended period of sick leave.  That is not to say that there was no role for the complainant to take up when fit to return to work.  It was Mr Ryans’s evidence that the usual process for an employee returning to work after a long absence was followed in this case.  The Occupational Health recommendations were considered and compared with the open roles for Product Builders. 

Mr Ryan referred to the complainant stating a preference to work a 3-day week.  I accept the complainant’s evidence that she did not make a formal request for a 3-day week. 

In response to a question from the AO Mr Ryan stated that no Product Builder roles had been made redundant for over eight years, that is during his employment with the respondent.  It is the respondent’s position that it has always had and continues to have a role as Product Builder available for the complainant.

Section 7 of the Act provides protection to an employee who “if he is dismissed by his employer by reason of redundancy …  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”.  The complainant did not present evidence that she was dismissed by the respondent.  The complainant contends that the roles offered to her to return to work were not reasonable.  She did not consider the roles available to be reasonable because they would result in a loss of status within the company and offered less flexibility in relation to working hours.  There was no evidence that the terms and conditions as set out in the complainant’s contract of employment were changed or reduced.  The complainant’s perception of a loss of status is her opinion, she was not demoted or reduced in wages or hours of work. 

She contended that as she could not return to working the same duties as she performed between 2015 and 2019 her role is redundant, and she is entitled to a redundancy payment.  I am satisfied, based on the evidence presented, that the role of Product Builder is one that has many different duties, and that the complainant has shown by her past performance that she can carry out many various duties across different business units. 

The complainant’s contract of employment reserves to the respondent the right to “change your work time and patterns in line with changing business needs”.  Business needs will naturally change over time, particularly in the medical device field, so the duties available to an employee returning after an absence of two years may well be somewhat different.  Changes emerging over time do not necessarily result in a redundancy situation.  I accept the respondent’s evidence that no Product Builder role has been made redundant in recent years.

I am satisfied that the complainant was not dismissed by the respondent, and that the role of Product Builder was not declared redundant.  Further, I accept the respondent’s evidence that there continues to be a role as Product Builder available for the complainant.  The Labour Court in CCL Label Ltd v Byrne RPD 2113 held “If the role of delivery driver was not made redundant, not withstanding any understandable concerns that the complainant might have about the changes proposed for his work, there is no obligation on the respondent to make a payment under the Act and the claim must fail.”  Following that reasoning while the role of Product Builder was not made redundant there may be changes to some of the duties and working times but, such changes do not necessarily result in redundancy. I find that the complainant was not dismissed by the respondent by reason of redundancy.

The complainant contends that an alternative offer of employment may not be considered appropriate if the alternative offer is not reasonable.  This contention refers to section 15 of the Act which deals with the disentitlement to redundancy payment for refusal to accept alternative employment offered in a redundancy situation.  The complainant was not dismissed by reason of redundancy.  The roles offered to the complainant were part of her return to work after a long period of sick leave, they were at the same grade with no reduction in pay or hours of work.  They were not offered in a situation of redundancy.

I note the respondent’s stated intention to continue to engage with the complainant to facilitate her return to work in her contract role of Product Builder. 

I find that the role of Product Builder is not redundant, and that the complainant was not dismissed by the respondent by reason of redundancy.  Therefore, she has no entitlement to a redundancy payment.

Conclusion

Having carefully considered the submissions and evidence presented I find that the complainant’s role is that of Product Builder.  I am satisfied that the complainant was not dismissed by the respondent, and that the role of Product Builder was not declared redundant.  Further, I accept the respondent’s position that there continues to be a role as Product Builder available for the complainant.  I find that the complainant was not dismissed by the respondent by reason of redundancy and therefore she has no entitlement to a redundancy payment.

CA-00054472-001

Complaint pursuant to section 39 of the Redundancy Payments Act 1967.

I have carefully considered the submissions and evidence presented by both parties.  I find that the complainant was not dismissed from her role of Product Builder by the respondent by reason of redundancy.  Therefore, I find she has no entitlement to a redundancy payment.  I disallow the complainant’s appeal.

Redundancy Payment