Complainant

Respondent

Parties

William  Boyle

Ailesbury Commercial and Industrial Security Limited

Complainant

Respondent

Anonymised Parties

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Representatives

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-00068622-001

15/01/2025

The Complainant began his employment with the Respondent as a Security Officer on 6 April 2019. He stated that he was entitled to a redundancy payment on 19 September 2024 when the building where he was working closed down and the Respondent offered no suitable alternative work to him.

The Complainant explained in evidence that he declined the two Security Officer positions offered to him at the Respondent’s other sites because the duties associated with those roles differed significantly from his previous position at Point Square. He highlighted that both alternative roles would have required him to be on his feet for most of the day, whereas his role at Point Square was primarily administrative, involving no more than 30 minutes of standing at a time. He stated that it was not feasible from his perspective to be on his feet for much more than 30 minutes at a time because he has Parkinson's disease.

The Respondent asserted that the Complainant was employed at all times as a Security Officer and stated that the two alternative roles offered to him on other sites prior to the termination of his employment were Security Officer roles.

THE LAW

Section 15 of the Redundancy Payments Acts 1967 to 2014 provides as follows:

(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.

FINDINGS

In deciding if the Complainant unreasonably refused the offers of the two alternative roles, as set out in the summaries above, I note that in the case of Cinders Ltd v Byrne RPD1811, the Labour Court held that the issues to be considered in such instances are “(i) the suitability of the offers of alternative employment made … on behalf of the Respondent to the Complainant; and (ii) whether the Complainant’s decision to refuse each of those offers was reasonable in all the circumstances.” Relying on Cambridge & District Co-operative Society Ltd v Ruse [1993] I.R.L.R. 156, the Labour Court stated that “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”.

Specifically, the Labour Court held that it was reasonable for the employee, Ms Byrne, to refuse to move from a standalone store in the Merrion Centre, Dublin 4 to a concession within a department store in Blanchardstown or St Stephen’s Green, but unreasonable to refuse to move to a standalone store in Wicklow Street, Dublin 2 (a distance of about 6km from the Merrion Centre). The Court held that “there was no significant difference between the working environment she would have enjoyed in Wicklow Street and that she had experienced for the previous twenty or so years of her working relationship with the Respondent.”

The legal test set out in Cinders Ltd v Byrne and Cambridge & District Co-operative Society Ltd v Ruse is therefore that the suitability of an alternative offer of employment should be assessed objectively as well as from the subjective perspective of the employee.

In this case, there is no doubt that, objectively, the Complainant was to do the role that he was hired by the Respondent to do, namely that of a Security Officer, in the two roles that were offered to him as an alternative to the redundant position in Point Square. However, from the Complainant’s subjective point of view, the two proposed roles were very different because he would be required to be on his feet for a lot of the day unlike the position in Point Square where he was only on his feet for around 30 minutes at a time.

The legal test as set out by the Labour Court above requires consideration of the objective and subjective elements of the new role offered to the Complainant. Objectively, the two roles proposed to him by the Respondent were similar roles to the position he had in Point Square and was the role he had been employed to do by the Respondent. Subjectively from the Complainant’s point of view, however, the two alternative roles were unsuitable because he has Parkinson’s disease and would have to be on his feet for a lot more of the day.

Having regard to the legal tests cited above, I find that while the roles proposed by the Respondent were suitable alternative positions, the Complainant did not unreasonably refuse the offers given the increased amount of time he would have had to spend on his feet in both roles which would cause issues for him because of his Parkinson’s disease. Accordingly, I allow his appeal.

For the reasons set out above, I allow the Complainant’s appeal and find that he is entitled to a statutory redundancy lump sum payment under the Redundancy Payment Acts 1967 – 2012 based on the following criteria: 

-          Date of commencement:  6 April 2019

-          Date of termination: 19 September 2024

-          Gross weekly wage: €696

This award is made subject to the Complainant having been in insurable employment under the Social Welfare Acts during the relevant period.